by James Rowles*
*Doctor of Juridical Science (SJD) in International Law, Harvard University
As an international lawyer, I am continually struck by the fact that our political discourse and terminology related to the use of force in general, and the war in Ukraine in particular, is grotesquely out of date. It is as if we were using the terminology of horse and buggy days to describe the challenges of high-speed trains or jet airliners.
The realities have changed, but national leaders and politicians refuse to update their files.
As a result, he have national and international debates based on concepts that have been superseded by developments in international law. These comcepts have no legal validity but they live on in the minds of leaders who are by and large, and to a very significant extent, ignorant of international law.
We shall address the causes of this phenomena at a later date. But for let us simply address and illustrate the phenomena themselves.
For example, U.S. and European governments say they will not take this or that measure to assist Ukraine militarily because it could make them “a party to the war”, or be perceived by Moscow as a “party to the war”. The fear, often unstated, is that if tbey become a party to the war, then Russia may legitimately attack them because they are a “belligerant” in the conflict.
This whole way of thinking is fundamentally mistaken. Since 1945, there is no such concept as a “party to the war” or a “belligerent in the conflict” except in a narrow category of cases under the “law of war or “international humanitarian law” as this body of law is now known.
Whether one is a belligerent party is still relevant in determining whether particular targets in a civil war or international armed conflict are legitimate targets, e,g., whether a grouo of men in a Taliban area may be executed by a drone attack in Afghanistan. We won’t go into the details because they are largely irrelevant to the questions we are considering.
In 1945, the U.N. Charter changed the whole framework for considering the legality of the use of force. Under the new U.N. Charter framework, the key concepts became the prohibition against “the threat or use of force against the territorial integrity or political independence of any state” (Article 2 paragraph 4, U.N. Charter). The only exceptions to this prohibition were
1) the use of force in exercise of the “inherent right of individual or collective self-defense” against an “armed attack” as authorized by Article 51 of the Charter;
2) “regional enforcement action” by a regional organization (such as the Organization of American States), reported to and approved by the U.N. Security Council; and
3) the use of force pursuant to decisions of the Security Council under Chapter VII of the Charter.
Exceptions 2) and 3) are irrelevant for purposes of the present discussion. The key point is that the use of force across international frontiers was (and is) prohibited by Article 2 (4) of the Charter.
Nowhere is this framework is there any mention of being “a party to the war”. Under international law, technically speaking, “a state of war” does not exist.
Some confusion exists because, even after the Charter was adopted in 1945, the pre-existing categories were retained in one area, “the law of war” which is now known as “international humanitarian law”. The law in this area refers to the conduct of war, and what constitute war crimes. It is not relevant to our present discussion.
There are two possible situations under the scheme of the Charter where force may be used. The first is the illegal use of force in violation of Article 2(4) of the Charter. This use is prohibited, but it may occur.
The second situation in which force may in fact be used is in exercise of the right of individul or collective self-defense in accordance with Article 51 of the Charter. The article includes the twin requirements of “necessity” and “proportionality” which existed prior to the Charter under customary international law.
In short, under international law, there is no such thing as “a state of war”. That means that if a state such as the United States is actively providing Ukrainian troops with real-time targeting information on Russian targets, it does not thereby become a “party to the war” and does not authorize Russia to take any military action against the U.S. The United States would be acting in lawful exercise of the right of collective self-defense as authorized by Article 51 of the Charter.
If Russia were to treat the U.S. as “a party to the war”–a legal category which no longer exists–and to attack the U.S. or U.S. forces in response, it would be violating Article 2 (4) of the Charter.
Unfortunately, international leaders are often ignorant of international law, and even if they call the international lawyers in at all, it may be to merely answer a specific question.
During the 1962 Cuban Missile Crisis, John F. Kennedy, Jr. used international law and international lawyers to frame the issues–to his and our great advantage. Today’s leaders, even if they call the international lawyers in, don’t seem to use them in the same way, judging from the way current leaders frame the issues.
A second example of obsolete concepts, at least when it comes the use of force, is provided by the concept of “neutrality”. Before 1945 and the U.N. Charter, the concept of “neutrality” had significance under international law as it existed then. A neutral country which was not “a party to a war” or conflict could not lawfully be attacked by one of the warring parties.
Neutrality played a big role in the Spanish Civil War where it was invoked by France, Britain, and other countries as an excuse for not coming to the defense of the elected Republican government. In World War II, the status of being neutral did little to stop Adolf Hitler’s tanks from rolling through the Netherlands and Belgium on May 10, 1940.
When it comes to the use of force, the status of “neutrality” no longer has any validity under the scheme of the U.N. Charter. All members are obligated to uphold the basic principles of the Charter, including the prohibition of the illegal use of force. Legally, a member of the U.N. cannot validly maintain that it is assuming a position of neutrality in a war such as the Russian war of aggression against Ukraine, where the facts relating to Russian aggression are beyond dispute.
In the case of decisions by the Security Council under Chapter VII, to maintain international peace and security, all members are bound to comply with the decisions. Of course, when a Permanent Member of the Security Council (with a veto) is the state committing aggression, the Security Council will not be able to reach decisions.
Nonetheless, all members are bound to uphold the basic principles of the Charter, a fact which should be remembered by members of the Western coalition seeking to persuade countries from the “Global South” to condemn Russia for its ongoing aggression and commission of war crimes, and to join the sanctions regime.
The implications of the preceding analysis are dramatic.
If the U.S. delivers to Ukraine long-range artillery rockets (ATACMS) with a range of 300 km (180 miles), that will not make it a “party to the war”. Its action would be fully justified under Article 51 as action taken in exercise of the right of collective self-defense.
If the U.S. or other countries deliver fighter jets to Ukraine, they will not become parties to the war, while their actions would be justifianle as taken in exercise of the right of collective self-defense.
Similarly, providing Ukrainian troops with real-time targeting information on Russian targets is justifiable as an exercise of the right of collective self-defense.
If Ukraine hits targets in Russia that are supporting the invasion, those actions would be justifiable under international law as acts of self-defense.
If the U.S. were to provide Ukraine with real-time targeting information on targets in Russia, such actions would be justifiable as taken in exercise of the right if collective self-defense.
Finally, it should be stressed that the spurious distinction between “offensive” and ” defensive” weapons is meaningless, as all weapons used to repel and bring to a halt the armed attack on Ukraine are “defensive” when used in exercise of the right of individual or collectibe self-defense under international law and the U.N. Charter.
Putin’s “red lines” have no significance under international law. He is the one violating “red lines”, the “red lines” of the international community embodied in the United Nations Charter and international law.
The pre-1945 legal categories discussed above are used by Putin to amplify his nuclear threats. Western leaders should ignore all of his talk about becoming a party to the war, and start speaking about exercising their lawful right of collective self-defense.
If they worry about anything, it should be Putin’s nuclear threats. They should do so with the full realization that they have been empty threats up until now. They need to focus on the threats, not legal categories and concepts that have been legally irrelevant for over 75 years.
They also need to focus on what is necessary to defend Ukraine and defeat Putin, not on their fears. No actions in a war are free of risk.
The risk they should really be focusing on is the risk of defeat.
The Trenchant Observer
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