Ukraine War, May 23, 2023: Ukraine, Russia, and the right of self-defense under International Law and the United Nations Charter


1) Joe Barnes (Kyiv) and Nataliya Vasilyeva (Russia correspondent), “Ukrainian fighters launch cross-border tank raid to ‘capture’ Russian villages; Volunteers from anti-Kremlin brigades claim they have set up a ‘people’s republic’,” the Telegraph, May 22, 2023 (3:16 p.m.);

2) Le Monde avec AFP, “Guerre en Ukraine : des combattants venus d’Ukraine font une incursion armée en Russie, un site de stockage nucléaire évacué; Les autorités russes ont signalé, lundi, l’« entrée d’un groupe de sabotage et de reconnaissance de l’armée ukrainienne dans le district de Graïvoron » et ont évacué le site de stockage d’armements nucléaires de Belgorod-22. Kiev nie toute implication,” le 24 mai 2023 (modifié à 06h33);

3) Andrew E. Kramer, Valerie Harper and Michael Schwirtz, “Anti-Kremlin Fighters Take War to Russian Territory for a Second Day
The cross-border attacks by fighters aligned with Ukraine were an effort to force Russia’s military to divert troops from the front line, an official said,” New York Times, May 23, 2023 (7:29 p.m. ET);


Kramer, Harper and Scwirtz report details which allow anyone connecting the dots to grasp what everyone knows: The units attacking Belgorod in Russia are operating under the command of the Ukrainian army.

Unnder international law these troops are for all intents and purposes part of the Ukrainian military. Kramer, Harper and Scwirtz report the following:

“Ukraine has denied any direct involvement in the incursions, casting the border attacks as a sign of internal division in Russia. A Ukrainian deputy defense minister, Hanna Maliar, described the fighters as “Russian patriots” rebelling against President Vladimir V. Putin’s government.

“A group called the Free Russia Legion, made up of Russians who have taken up arms for Ukraine, claimed responsibility for taking the war to Russian territory. The volunteer unit operates under the umbrella of Ukraine’s International Legion, forces overseen by Ukrainian officers.”

The Times Reporters quote Ilya Ponomarev, “an exiled former member of the Russian Parliament who described himself as the political representative of the (Ukraine’s international) legion, as stating by telephone on Tuesday “that the incursions were an effort to force Moscow’s military to divert troops fighting in Ukraine…“We think now they need to reconsider and deploy more forces all along the Ukrainian border,” Mr. Ponomarev said. He also said Ukrainian officers had been aware of the operation but had not directed it.

These extraordinary intellectual contortions lead to statements such as the following, according to the Times reporters:

A senior Ukrainian official said that Ukraine’s military was acting in support of the cross-border fighters and protecting Ukraine’s border in case of a Russian counterattack. The official said “no Ukrainian fighters had entered Russian territory.”

These are the ridiculous contortions Ukraine and others have had to make to at the same time 1) defend Ukraine, and 2) avoid running afoul of the absurd conditions the U.S. and other NATO countries have placed on the use of weapons they have supplied.

The U.S. policy is to enforce Vladimir Putin’s “red line” that Ukraine is not to attack targets within Russia proper (1991 boundaries). The State Department in effect confirmed this policy, stating, “We’re skeptical at this time of the veracity of these reports.” The spokesman added that the United States does not “encourage or enable strikes inside of Russia.”.

Self-Defense in International Law and under the United Nations Charter

Article 2(4) of the U.N. Charter prohibits the threat or use of force against the territorial integrity or political independence of any state.

This is the cornerstone principle of the U.N. Charter and indeed the entire United Nations System and the U.N. Charter-based international legal order. This is the principle which Vladimir Putin and Russia have violated by invading Ukraine first in 2014 and now on February 24, 2022, and which they continue to violate every day by prosecuting their war of aggression against Ukraine.

Nations which are the victim of an “armed attack” have the right under international law to use force to defend themselves, in exercise of their right of individual self-defense, and to call upon other nations to assist them by using force to repel the attack, in exercise of these nations’ right of collective self-defense.

Ukraine therefore has the right to strike targets on Russian territory provided such actions are necessary and proportionate responses to the Russian armed attack. Given what Russia has done and is doing to Ukraine and its citizens, there can be little question of the proportionality of Ukrainian attacks on military targets in Russia proper.

Nor can their be any question of the necessity of any such military responses to Russia’s invasion and ongoing attacks in and against Ukraine.

Necessity and Proportionality are two requirements for the lawful exercise of the right of self defense under traditional, customary international law. The rights of individual and collective self-defense are explicitly recognized in Article 51 of the U.N. Charter.

In short, Ukraine absolutely has the right to strike targets in Russia proper, as do nations acting in collective self-defense at its request.

This is the simple yet powerful architecture of the United Nations Charter and international law.

It is useful to keep it in mibd as all kinds of other justifications and arguments may be made by countries seeking to overthrow these principles and the Charter.

Without international law as a framework for understanding and guiding actions to uphold and maintain international peace and security, the arguments of the most powerful states will confuse and may well be those that prevail.

Tragically, President Biden and other NATO leaders have accepted Vladimir Putin’s “red line” prohibiting U.S. and other Ukrainian allies from supporting or “enabling” any Ukrainian attacks on Russian territory.

This has had the effect of requiring Ukraine to agree not to use weapons supplied by the U.S. and other NATO allies against targets in Russia. Biden has conditioned U.S. military assistance on Ukrainian promises that weapons supplied will not be used to attack Russia.

This has meant that Ukraine has had to defend itself, in effect, with one hand tied behind its back.

Why has President Joe Biden led the way in imposing such restrictions?

The answer, sadly, is Biden’s FEAR OF PUTIN and Putin’s nuclear threats.

We don’t know what understandings Biden may have reached with Putin regarding this “red line”. We do know that National Security Adviser Jake Sullivan has held secret “back-channel” conversations with Putin’s top aides, and that the substance of those conversations have never been made public.

We also know that Biden has become an enforcer of Putin’s “red lines”. This has led to much confusion and many to believe they are NATO’s “red lines”.

Nonetheless, over time these red lines have fallen by the wayside, one after another, with the latest being U.S. acquiescence in the transfer of F-16 fighter jets to Ukraine.

Still, the U.S. refuses to transfer the ATACMS long+range artillery rockets to Ukraine because they have a range of 300 km. or 180 mikes, and could be used to strike targets in Russia.

Biden’s enforcement of Putin’s “red line” regarding not striking targets in Russia was a fundamental strategic error made at the beginning of the war. Indeed, Putin’s nuclear threats became Russia’s most successful weapon against Ukraine and the West.

Biden’s surrender to his fear of Putin consistently gave “escalation dominance” to Putin, as the West was always afraid of him escalating but never took the initiative to make him afraid of NATO escalating.

It is time for Biden to abandon enforcement of this “red line” of Putin, and to allow Ukraine to exercise fully its right of individual self-defense against targets launching attacks on Ukraine or supporting the war in Ukraine.

A straightforward policy of allowing Ukraine to exercise its right of self-defense fully, even against targets in Russia, would help avoid the intellectual contortions Ukraine has resorted to, of pretending it has no involvement in attacks against Russia. Lies and misinformation will not strengthen support for Ukraine in the West.

Rather, Ukraine could say, “Yes, we attacked military targets in Belgorod, in exercise of our right of individual self-defense authorized under international law and Article 51 of the U.N. Charter. These acts of self -defense are in response to Russia’s invasion and ongoing war of aggression.”

There would be no need for duplicitous talk of Ukraine not being involved, or of these attacks being carried out by “Russian saboteurs” or “Russian Patriots”.

The attacks on Belgorod appear to have been carried out in coordination with the Ukrainian military in order to secure important Ukrainian strategic objectives related to he upcoming counter-offensive.

Ukraine is acting in accordance with international law. There is no need for Ukrainians to be cute about (and neither confirm nor deny) attacks on targets in Russia.

If only Joe Biden would stop enforcing Putin’s “red line” about not striking targets in Russia.

The Trenchant Observer


A selection of the best articles from The Trenchant Observer is published on Tuesday, Thursday, and Saturday in the Trenchant Observations newsletter on Substack.

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