Much has been said and written about Russia’s invasion of Ukraine and the ongoing war it has generated. Of late, some Kremlin sympathisers have even advanced the specious argument that Russia was ‘provoked’ into launching the invasion of its neighbour. They opined, ‘If only the West had not encouraged Ukraine to become so hostile to Moscow over time,’ President Vladimir Putin would not have ordered the invasion. Baloney, really. The argument has also flowed in the other direction, ‘if only Ukraine had kept its own arsenal of nuclear weapons, rather than giving them up under the “Budapest Memorandum” in 1994, Ukraine would not have been invaded.’ This is an interesting conjecture. One important element that has been lost in the debate, however, is the actual position of the law and the legal framework for dealing with threats to world peace. The main structure for dealing with a crisis of this magnitude is, of course, the United Nations Security Council, which has now been brought into disrepute, although not for the first time. This time though may prove to be a watershed moment for the world’s body.
This essay seeks to examine the position of the law prior to and after the invasion before tendering a submission for a radical overhaul of the UN Security Council system. Let us clear up the “Budapest Memorandum” issue first. It was signed by Russia and other world powers, guaranteeing Ukraine’s territorial integrity. It has no legal standing. Memoranda are statements of intention by the parties; they do not confer legal rights under international law. On the bare face of things, therefore, can a member of the United Nations (Russia) gratuitously march its troops into another member’s territory (Ukraine) to effect a regime change and alter its territorial borders? Quite simply, the answer is no. Imposition by force of a border change is an act of aggression under Customary International Law. Article 2 (4) of the UN Charter prohibits states from the use of force against “the territorial integrity or political independence” of another state. The dramatis personae in this instance all knew this. They understood the legal jeopardy Russia had put itself into by its action. Russian diplomats and President Putin were conscious of this too. It was an audacious gamble.
As the ferocious attacks on Ukraine got underway on February 24, 2022, an emergency meeting of the UN Security Council was convened the very next day, February 25, 2022, to consider the text of an American-draft resolution condemning the invasion. This is where the muddle begins. Chapter VI of the UN Charter empowers the Security Council to oversee settlements of international disputes. Chapter VII goes further to confer primary responsibility for the maintenance of international peace and security on the Security Council. This invariably includes threats to the peace, breaches of the peace or acts of aggression. The UN General Assembly is an amalgam of 193 members, each taking their seat and casting their vote equally. Although they carry moral weight, resolutions from the Assembly are non-binding. This is so for very good reasons, some would argue. The Assembly consists of a potpourri of actors: tyrants, dictators, democrats, autocrats and monarchies alike. Members from the non-Western (‘less developed’) nations currently outnumber members from the Western (‘advanced’) countries, 2-1. To the latter, therefore, God forbid if the Assembly were to be given power over world affairs! What would become of the “leader of the free world” and that of Western hegemonic powers? It was this foresight that prompted the UN founding fathers to create the safety valve of the Security Council in 1945. Consequently, the Security Council comprised the main victors from World War II, who, incidentally, also had nuclear weapons at their disposal: UK, France, USA, Russia and China. The Charter thus conferred on the Council the power to ‘safeguard world peace.’ Of all the organs of the UN, the Security Council is the only one whose resolutions have powers of enforcement. However, in an effort to make its membership a little bit inclusive, ten additional members were to be drawn from the General Assembly on a six monthly rotation. The five foundation members would remain permanent, with veto powers.
Going back to the emergency meeting of the Council on February 25, 2022, the draft resolution did not pass because Russia blocked it but China was persuaded to abstain instead of voting against. This was seen as a mini ‘victory’ by Western leaders seeking to drive a wedge between China and Russia. Meanwhile, Russia dispatched a letter to the UN Secretary General claiming its action in Ukraine was justified on the ground of ‘self-defence.’ But Putin was saying publicly that Russia’s action was predicated on a “genocide” of the Russian-speaking population in the east of the country. And it was on this basis that Ukraine approached the International Court of Justice (the ICJ is an organ of the UN) at The Hague, in the Netherlands, on February 26, 2022, for an urgent ruling on Putin’s claims. Whilst waiting for the ICJ ruling, the General Assembly quickly passed a resolution “deploring” Russia’s “aggression” in Ukraine, 141-5, with 35 abstentions. The ICJ subsequently ruled 13-2 against Russia on March 15, 2022, and ordered it to halt its invasion of the country forthwith.
The Court’s rulings are supposedly binding but it has no power of enforcement. The two dissenting opinions were the Russian and Chinese judges on the court. The ICJ has jurisdiction pursuant to article 9 of the Genocide Convention 1951. Still frantically scrambling for legal cover, Russia proposed a resolution to the Security Council calling for “aid access and civilian protection” on March 23, 2022, without reference to its invasion of the country. A 2/3 majority of its fifteen members, plus no veto, were required to pass the resolution. It was defeated 13-2. No price for guessing the two countries that voted yes. Russia and China, of course.
The very next day, on March 24 2022, the General Assembly once again voted on another resolution demanding protection for civilians and an end to the siege on Ukrainian cities. It passed 140-5, with 38 abstentions. The Security Council could authorise the use of force against an aggressor but the aggressor, in this case, Russia, has a veto.
It could also have chosen to enforce the ICJ ruling but that would have fallen foul of Russia’s veto as well. The International Criminal Court was founded in Rome, Italy in 2002 to deal with cases of war crimes and crimes against humanity. It is also based in The Hague and is already conducting its own investigations inside Ukraine but it is not a UN organ. It is an inter-governmental organisation. Its jurisdiction is recognised only in 123 countries, including 33 African states. More significantly, it is not recognised by Russia, China, the USA and many others. Since its establishment, the majority of the defendants appearing before it have been Africans.
Russians are unlikely ever to appear. Finally, contrary to Western media speculation about Putin’s mental state, he is a high-stake gambling, cold, calculating old fox, who knows he is in flagrant violation of international law. Furthermore, he knows the only thing standing in the way of legal repercussions is Russia’s veto on the Security Council. The veto has thus become a sword as well as a shield for perpetrating illegality, threatening world peace and laying the ground for global anarchy. Question: Why, in 2022, does the UN Security Council still need to reflect the world as it was in 1945? By all means, let the five permanent members remain if they must. But the veto regime should be consigned to the dustbin of history without further ado.
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