Ukraine War, May 7, 2022 (I): Speaker of Russian Duma accuses U.S. of direct involvement in military operations against Russia; The meaning of “Belligerent” and being at war with Russia–Confusion between International Humanitarian Law and the Law of the U.N. Charter

To see a list of previous articles, enter “Ukraine” in the Search Box on the upper right, on The Trenchant Observer web site, and you will see a list in chronological order.

Disparches

1) “Duma-Sprecher Wolodin wirft USA direkte Beteiligung an Kriegshandlungen vor; Der Sprecher des russischen Unterhauses beschuldigt Washington, Militäroperationen in der Ukraine zu entwickeln. CIA-Veteranen warnen ihre Nachfolger: Zu viel öffentliche Angeberei über ihre Rolle sei unklug,” Der Spiegel, den 7. Mai 2022;

2) Julian Borger, “US intelligence told to keep quiet over role in Ukraine military triumphs; CIA veterans advise successors against ‘unwise’ intelligence boasts that could trigger escalation from Russia,” The Guardian, May 7, 2022 (06.10 BST, updated 13:53 BST);

3) Joseph Clark, “Senior Russian lawmaker accuses U.S. of being directly involved in Ukraine war,” The Washington Times, May 7, 2022.

Commentary

Analysis of Relationship between International Humanitarian Law and Law of the U.N. Charter

The following analysis was first published here on April 28, 2022.

Confusion between the Law of the U.N. Charter and International Humanitarian Law, and the meaning of being a “Belligerent”

International Humanitarian Law, formerly known as the Law of War or the Laws of War, refers to the law contained in the 1949 Geneva Conventions and subsequent protocols and treaties regulating the actions permitted by armed forces during an armed conflict.

The international law of the United Nations Charter makes no distinction between being a “belligerent” or not. Under the Charter, the use of force across international frontiers in prohibited (Article 2 paragraph 4) except in exercise of the right of individual or collective self-defense (Article 51).

The Law of War developed over centuries, and in particular since the U.S. adoption in 1863 of the Liber Code regulating the conduct of Union soldiers during the Civil War.

Under International Humanitarian Law or the Law of War, the rights and obligations of the soldiers of a country that is a party to the conflict (a “belligerent”) are different from those of countries which are not parties to the war.

These distinctions were important before 1945 and more recently during the war in Afghanistan, but are not directly relevant to considering what actions are permissible for a country to take in exercise of the right of collective self-defense under the U.N. Charter.

Under the Charter, there is no such thing as “a state of war” and “a declaration of war” has no meaning. What determines the legality of a state’s actions is whether or not its use of force is against “the territorial integrity or political independence” of a target state, and whether the use of force in response to such action when it amounts to an “armed attack” is necessary and proportionate in order to repel the attack and bring it to a halt.

There is no legitimate reason to use force across an international frontier except in response to an “armed attack”.

Consequently, all the talk in public discussions about whether a given action by a NATO member country is an “act of war” is totally irrelevant under the law of the United Nations Charter.

The significant question is whether any such action is lawful as an act of collective self-defense.

These clarifications should inform discussions of the appropriateness of taking this or that action. A state does not become a “party” to a war when it is simply acting in exercise of the right of collective self- defense.

Admittedly, the two bodies of law can lead to confusion, as they are based on different premises yet continue to co-exist in the world today. The basic point is that International Humanitarian Law deals with the treatment of soldiers on the other side and with the protection of civilians.

Under the law of the U.N. Charter, on the other hand, at the level of interactions between states, there is no such thing as a “belligerent” in the sense of a state being a participant in a war. The only question is whether it is acting lawfully in exercise of the right of individual or collective self-defense.

In the context of the current war in Ukraine, this means that the transfer of Polish jets to Ukraine would at most be an act of collective self-defense, fully justified in response to Russia’s illegal invasion of the country. It would not make the state transferring the jets a party to a war with Russia, and would not entitle Russia to take any action against it in response. The analysis is no different if we are talking about the supply of tanks, airplanes, or other heavy weapons to Ukraine.

How Putin and Russia might perceive and react to such actions is a separate question. But at least the U.S. and NATO should be clear when they talk about such matters, and use language which reflects the modern state of international law as set forth above.

An act of collective self-defense against an invading state is not an “act of war” against that state, and does not mean that the state acting in collective self-defense is at war with the invading state.

These distinctions are important, even if they are not always understood.

The Trenchant Observer

***

See also,

Only force can stop Putin

“Ukraine War, April 5, 2022 (II): Force must be used to stop Putin,” The Trenchant Observer,

 

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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