Published: May 2024
Is the Russian invasion of Ukraine illegal? The answer to this question is more complex than most people on both sides of the conflict assume.
Unprovoked and illegal
The Russian invasion of Ukraine on 24 February 2022 has been described as “unprovoked and illegal” by most Western governments, political commentators and media. In contrast, the Russian government has described the invasion as a legal response to Ukrainian and Western provocation.
In terms of provocations prior to the invasion, Russian and other analysts typically highlight several points, including:
- two “regime changes” in Kiev in 2005 and 2014,
- the non-implementation of the Minsk agreements,
- discrimination against ethnic Russians in Ukraine,
- continued shelling of ethnic Russians in the Donbas,
- Ukrainian participation in Nato military exercises,
- US participation in Ukrainian military exercises,
- a US-Ukrainian strategic and military partnership,
- and discussions about Ukrainian Nato membership.
Given these largely (though not entirely) undisputed events, it appears rather difficult to objectively describe the Russian invasion of Ukraine as “unprovoked”. Moreover, it appears likely that the US would have responded in a similar way to a Russian or Chinese alliance with Cuba or Mexico.
This assessment is supported by previous US interventions in Latin America, such as the US invasions of Grenada in 1983 and Panama in 1989; the CIA “Contra War” against Nicaragua in the 1980s; the attempted proxy invasion of Cuba in 1961; and multiple US-backed military coups in Latin America, such as in Guatemala (1954), Brazil (1964), Chile (1973), and Argentina (1976).
However, even if the Russian invasion was in fact provoked, this doesn’t mean the invasion was legal according to international law. This more complex question will be addressed next.
Figure: American CV-22 Osprey aircraft during a military exercise in Kiev (Sept. 2020)
Secession, recognition, invasion
The Russian government justified its invasion of Ukraine in a very specific and legalistic way that has rarely been discussed in detail by Western media and legal experts.
To evaluate the legality of the Russian invasion one has to consider three distinct events: the secession of the two Donbas republics from Ukraine in May 2014; the recognition of the Donbas republics by Russia on 21 February 2022; and the Russian invasion of Ukraine three days later.
1) Secession
In response to the Euromaidan revolution or regime change in Kiev in February 2014, paramilitary groups in Eastern Ukraine constituted the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), held ad-hoc referendums, and declared their independence in May 2014. This unilateral secession clearly violated the Ukrainian constitution, but so did the prior Euromaidan coup against the elected Ukrainian government.
In contrast, international law is notoriously ambiguous on the question of unilateral secession because it recognizes both the right of peoples to self-determination and the right of states to preserve their territorial integrity.
In principle, the Donbas republics appear to have fulfilled the four internationally recognized criteria for statehood according to the Montevideo Convention: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.
Moreover, by 2014 there were already several precedents of unilateral secessions – both with and without prior referendums – that were recognized by Western countries, including Slovenia and Croatia in 1991/1992 and Kosovo in 2008.
In the case of Kosovo, the UN International Court of Justice even issued an advisory opinion in 2010 that found Kosovo’s declaration of independence did not violate general international law because international law contained no “prohibition on declarations of independence”.
Importantly, a state does not have to be a UN member to declare its independence or to be recognized as independent. A well-known example is Switzerland, which joined the UN only in 2002.
The UN Security Council can define a declaration of independence as legally invalid. This happened in 1983 when the Turkish Republic of Northern Cyprus declared its independence, but it didn’t happen in the case of the two Donbas Republics – perhaps because of Russia’s veto power.
Thus, it appears that the declaration of independence of the two Donbas republics in 2014 violated the Ukrainian constitution but did not obviously violate international law.
2) Recognition
Nevertheless, Russia at the time did not recognize the independence of the two Donbas republics and instead supported the so-called Minsk agreement to resolve the Donbas conflict. Only eight years later, after the Minsk agreement broke down and OSCE-documented ceasefire violations increased again in early 2022 (see chart below), did Russia recognize the independence of the Donbas republics. This occurred on 21 February 2022, three days prior to the invasion.
The recognition of breakaway states by individual members of the UN Security Council used to be a political taboo. Yet this taboo was first broken not by Russia but by Western countries when they recognized the independence of Kosovo in 2008. In any case, the recognition of the Donbas republics by Russia in February 2022 did not obviously violate international law.
Other states with limited international recognition include Taiwan (recognized by 11 UN members, even though Taiwan does not currently consider itself an independent state), Israel (not recognized by 28 UN members), Palestine (recognized by 140 UN members, even though not currently a UN member itself), Abkhazia and South Ossetia (claimed by Georgia but recognized as independent by 5 UN members, including Russia), as well as some others.
Once states recognize each other as independent they can enter formal bilateral or multilateral treaties. In the case of the Donbas republics, this also happened on 21 February 2022, when the Russian President signed a “Treaty of Friendship and Mutual Assistance” with both republics (ratified one day later, on 22 February 2022, by the Russian Parliament).
In his speech announcing the recognition of the Donbas republics on 21 February 2022, the Russian President stated that: “We want those who seized and continue to hold power in Kiev to immediately stop hostilities. Otherwise, the responsibility for the possible continuation of the bloodshed will lie entirely on the conscience of Ukraine’s ruling regime.”
3) Invasion
As the documented Ukrainian ceasefire violations did not stop, the Donbas republics invoked the treaties of “Friendship and Mutual Assistance” and formally “asked Russia for help”. Thus, three days later, on 24 February 2022, the Russian President announced a “Special Military Operation” in Ukraine, referring to both the mutual assistance treaties and the UN Charter:
“In this regard, in accordance with Article 51 of Part 7 of the UN Charter, with the sanction of the Federation Council of Russia and in pursuance of the treaties of friendship and mutual assistance ratified by the Federal Assembly on 22 February this year with the Donetsk People’s Republic and the Luhansk People’s Republic, I decided to conduct a special military operation.
Its goal is to protect people who have been subjected to bullying and genocide by the Kiev regime for eight years. And for this we will strive for the demilitarisation and denazification of Ukraine, as well as bringing to justice those who committed numerous, bloody crimes against civilians, including citizens of the Russian Federation.”
Article 51 of the UN charter stipulates that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Thus, the Russian President argued that the continued Ukrainian attacks on the Donbas republics, recognized by Russia since 21 February 2022, activated the provisions of the mutual assistance treaties and allowed or in fact compelled Russia to intervene militarily and exert collective self-defense according to article 51 of the UN charter.
This logic may be compared to article 5 of the Nato Treaty, which “commits each member state to consider an armed attack against one member state to be an armed attack against them all”. The Donbas republics aren’t UN members but plausibly have a right of individual or collective self-defense, just as Switzerland prior to 2002 had a right of self-defense even without being a UN member (and in fact joined Nato’s Partnership for Peace in 1996).
Thus, the key point in Russia’s justification of the invasion, though rarely discussed in Western media, is that Ukraine was already at war against two states allied with Russia and did not stop this war despite a Russian warning. From this perspective, Russia’s invasion was and is an attempt to end Ukraine’s eight-year war against the Donbas republics.
In a February 2024 interview to a US journalist, the Russian President made the following statements confirming this line of reasoning:
“It was they [the Ukrainian side] who started the war in 2014. Our goal is to stop this war. And we did not start this war in 2022. This is an attempt to stop it. () All this put together led to the decision to end the war that neo-Nazis started in Ukraine in 2014. () We don’t attack anyone. When did the developments in Ukraine start? Since the coup d’état and the hostilities in Donbass began, that’s when they started.”
The UN Security Council can declare an invasion illegal. This happened in 1990 in the wake of Iraq’s invasion of Kuwait. The Russian invasion of Ukraine wasn’t declared illegal by the UN Security Council, which isn’t surprising given that Russia itself is a council member with veto power.
Thus, while the Russian invasion of Ukraine may not be obviously legal according to international law, it may not be obviously illegal, either. Many Western experts in international law have stated that the invasion is in fact illegal, but their arguments are surprisingly weak or vague. Two Harvard professors of International Law, for instance, called the Russian response “problematic”.
An additional argument is that Russia broke the 1994 Budapest Memorandum by invading Ukraine. The Budapest Memorandum was signed by Russia, the US and the UK and prohibited the use of military force or economic coercion against Ukraine and two other post-Soviet states; in exchange, these states gave up their Soviet-era nuclear weapons.
However, the memorandum was never ratified and wasn’t legally binding; moreover, Russia argues that the memorandum was already broken by the US-backed, armed regime change in 2014 and by the fact that the Ukrainian President discussed the acquisition of nuclear weapons at the 2022 Munich Security Conference, five days before the Russian invasion.
Figure: Donbas ceasefire violations prior to the Russian invasion (OSCE/ICG/MM)
What about US invasions?
Given that the Russian invasion of Ukraine may not be clearly illegal, why did the United States not follow a similar strategy in its many invasions and wars against other countries? The answer appears to be that in most cases, the US was not in a position to do so.
For instance, in the 2003 Iraq War the US could have recognized Kurdistan as an independent state, but the Kurds were not under attack by Iraq, and Nato member Turkey would not have accepted the recognition of an independent Kurdistan. Instead, the US chose a bogus story about alleged “weapons of mass destruction” to justify its illegal invasion of Iraq.
In the 2001 Afghanistan War, the US could have recognized the United Islamic National Front for the Salvation of Afghanistan (i.e. the Northern Alliance) as an independent state or even as the official government of Afghanistan (instead of the Taliban), but the Northern Alliance controlled only one valley in Afghanistan and the US instead chose the bogus Bin Laden story to justify its invasion.
In the 1999 Kosovo War against Serbia, the US could have recognized Kosovo as an independent state prior to the war, but the US-supported Kosovo Liberation Army (KLA) was still a recognized terrorist group and controlled only a few villages in Kosovo at the time. Instead, the US chose a fabricated humanitarian pretext to justify the illegal three-month bombing campaign.
In the Syria War (2011-2020), the US could have recognized rebel-held territories as independent states, but these territories were controlled by US-supported Islamist terrorist groups like “Al Qaeda” and “ISIS”. Thus, the US chose false-flag chemical attacks and staged terrorist attacks to justify its illegal military interventions in Syria and against the Syrian military.
In Latin America, the US mostly relied on military coups, paramilitary groups or direct military invasions to achieve its geopolitical goals. In 2019 the US recognized an opposition leader as President of Venezuela, but he had no power or territorial control in the country and fled to the US.
Overall, the Russian strategy of recognizing and supporting a state already under attack by another state was rarely an option for the US, likely because few states would attack another state knowing that this would trigger a US intervention. As a result, most US wars were either outright illegal or based on various deceptions and provocations.
Figure: The Logic of US Foreign Policy (SPR/Sylvan/Majeski, 2018)
Conclusion
In conclusion, the analysis above suggests that the legal status of the Russian invasion of Ukraine is more complex than commonly assumed by people on both sides of the conflict. The actual Russian justification of the invasion is rarely discussed in Western media and relies on the fact that Ukraine was already at war with two states recognized by and allied with Russia.
The secession of the Donbas republics from Ukraine in 2014 and their recognition by Russia on 21 February 2022 violated the Ukrainian constitution but may not have violated international law, as suggested by the Kosovo precedent and other precedents. The Russian invasion on 24 February 2022 relied on a Nato-like collective self-defense treaty activated by Ukrainian attacks.
From the point of view of international law the Russian invasion may be problematic but it may not be obviously illegal, and it is rather difficult to argue that it was unprovoked. Nevertheless, the ideal solution for Ukraine likely would have been some sort of “Swiss model” including a neutral foreign policy and a federated multi-lingual domestic political system.
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Is the Russian invasion of Ukraine illegal?
An analysis by Swiss Policy Research
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Documents
- Speech by the Russian President (21 February 2022)
- Speech by the Russian President (24 February 2022)
- Interview with the Russian President (9 February 2024)
- Legality of the Russian invasion of Ukraine (Wikipedia)