At war with international law

The truth is usually one of the first casualties in any war – and with it, international law. In the opinions of these three legal experts, this has been confirmed once again by the war in Ukraine.

Main portal of the United Nations with many flags
© coldsnowstorm/iStock

The Walther-Schücking-Institute for International Law at Kiel University is the oldest German university institution that is dedicated specifically to international law. So it's no wonder that the expertise gathered there is always in particular demand whenever violent conflicts or other global crises occur to worry the public.

Professors Andreas von Arnauld, Kerstin von der Decken and Nele Matz-Lück make up the Institute's Board of Directors, and have made fundamental assessments of the war in Ukraine public including in an article on their international law blog. Their clear finding: even with a lot of imagination, the Russian war of aggression simply cannot be reconciled with the international legal order.

According to Professor von Arnauld, this is already countered by the prohibition of violence, which is regarded as a central achievement of the United Nations (UN) in the 20th century. No matter how much countries are at odds, under the terms of the UN Charter the military must not be a means of confrontation. The Charter allows only two exceptions: a mandate from the United Nations' Security Council, or self-defence against an armed attack. "Russia cannot invoke either of these," says von Arnauld.

The legal scholar sees Russia's arguments for its "special operation" as a pretext. "There has never been an armed attack by Ukraine on Russia. Conversely, Ukraine has a right to self-defence against the Russian aggressor." Von Arnauld and his colleagues consider another windy construction to be similarly baseless. Russia initially recognised the self-proclaimed "Republics" of Donetsk and Luhansk, who in turn called on their big neighbour to help protect them against the allegedly aggressive Ukraine. However, this does not change the fact that under international law, the two regions are part of Ukraine, even after the Minsk Agreement, which was sealed by Russia in 2014.

Three people stand next to each other
© Jürgen Haacks, Kiel University

Kerstin von der Decken, Nele Matz-Lück and Andreas von Arnauld (left to right) address the topic of war and international law.

Meanwhile, co-director Nele Matz-Lück rates the violence-reducing options by international organisations as limited. First of all, she says, the idea of a military response by the UN to the war of aggression is "absolutely out of the question". The simple reason: the veto right of Russia and of China on the Security Council. On the other hand, there has been an emergency session of the UN General Assembly that condemned the Russian approach by an overwhelming majority. However, Professor Matz-Lück adds that this vote is "not legally binding".

In the meantime, Professor Kerstin von der Decken points out that such a war not only has legal consequences for the countries, but also for individuals – i.e. for the perpetrators and for the victims. But it's not that simple. It is in the jurisdiction of the International Criminal Court (ICC), based in The Hague, to punish war crimes, crimes against humanity, genocide and also the crime of aggression. So in the lawyer's opinion, the war in Ukraine offers a broad field of activity. The catch is, of course, that neither Russia nor Ukraine has ratified the ICC Statute.

Which means the ICC would not actually be allowed to take action. But because Ukraine already recognised the jurisdiction of the Court for crimes on its territory in 2013, a corresponding procedure has been underway since the beginning of March with regard to possible war crimes.

On the other hand, is there anything to the Russian accusation that the West itself has often enough waged war in Syria, Afghanistan and Kosovo in violation of international law? In fact, according to Professor von Arnauld, these interventions also occurred without a UN mandate, but certainly in the case of Kosovo against the undisputed background of systematic ethnic cleansing. The fact is, though, that "A violation remains a violation, even if others have also committed one.”

Author: Martin Geist

Editorial note: After the editorial deadline, Prof. Dr Kerstin von der Decken was appointed Minister of Justice and Health.