Report to Congress on Law of War and the Invasion of Ukraine - USNI News - USNI News

The following is the March 16, 2022, Congressional Research Service Legal Sidebar, The Law of War and the Russian Invasion of Ukraine.

From the report

In the days after Russia’s invasion of Ukraine on February 24, 2022, many countries condemned the action as a violation of international law governing when countries may use force against one another. Since then, several observers, including the U.S. Secretary of State and other foreign government officials, have cited evidence that the Russian military has targeted civilians, struck protected sites, and taken other actions that violate international law regulating the conduct of war. This Legal Sidebar provides a brief introduction to the international legal framework governing the use of force in the invasion of Ukraine and concludes with a discussion of avenues for accountability and options for Congress.

Terminology

The law of war generally refers to the portion of international law that regulates the inception of use of force, the conduct of hostilities, and the protection of war victims, among other things. The term is often used interchangeably with the law of armed conflict and international humanitarian law. There are two major categories under the law of war umbrella: jus ad bellum (legal rules governing when a country can resort to use of force) and jus in bello (law governing conduct during the use of force). While they can be interrelated, jus ad bellum and jus in bello generally operate independently such that compliance with one category is required regardless of compliance with the other. For example, a state that is a victim of a jus ad bellum violation because it is attacked without a lawful basis must still comply with jus in bello when conducting military operations to defend itself.

Jus ad Bellum: Deconstructing the Justifications for War in Ukraine

The starting point to analyze most aspects of jus ad bellum is the U.N. Charter. Article 2(4) prohibits member-states from using or threatening to use force against one another, but there are exceptions. Article 51 preserves member-states’ right to act in either individual or collective self-defense when an armed attack occurs, and Chapter VII of the charter permits the U.N. Security Council to authorize military actions necessary to maintain or restore international peace and security. A state can also consent to the use of force in its territory.

Customary international law (described in this CRS Report) also informs jus ad bellum. Customary international law requires that the use of force be proportionate to the justification for military action and necessary because no other reasonable means of redress are available.

CRS Legal Sidebar Prepared for Members and Committees of Congress Legal Sidebari The Law of War and the Russian Invasion of Ukraine March 16, 2022 In the days after Russia’s invasion of Ukraine on February 24, 2022, many countries condemned the action as a violation of international law governing when countries may use force against one another. Since then, several observers, including the U.S. Secretary of State and other foreign government officials, have cited evidence that the Russian military has targeted civilians, struck protected sites, and taken other actions that violate international law regulating the conduct of war. This Legal Sidebar provides a brief introduction to the international legal framework governing the use of force in the invasion of Ukraine and concludes with a discussion of avenues for accountability and options for Congress. Terminology The law of war generally refers to the portion of international law that regulates the inception of use of force, the conduct of hostilities, and the protection of war victims, among other things. The term is often used interchangeably with the law of armed conflict and international humanitarian law. There are two major categories under the law of war umbrella: jus ad bellum (legal rules governing when a country can resort to use of force) and jus in bello (law governing conduct during the use of force). While they can be interrelated, jus ad bellum and jus in bello generally operate independently such that compliance with one category is required regardless of compliance with the other. For example, a state that is a victim of a jus ad bellum violation because it is attacked without a lawful basis must still comply with jus in bello when conducting military operations to defend itself. Jus ad Bellum: Deconstructing the Justifications for War in Ukraine The starting point to analyze most aspects of jus ad bellum is the U.N. Charter. Article 2(4) prohibits member-states from using or threatening to use force against one another, but there are exceptions. Article 51 preserves member-states’ right to act in either individual or collective self-defense when an armed attack occurs, and Chapter VII of the charter permits the U.N. Security Council to authorize military actions necessary to maintain or restore international peace and security. A state can also consent to the use of force in its territory. Congressional Research Service https://crsreports.congress.gov LSB10710

Congressional Research Service 2 Customary international law (described in this CRS Report) also informs jus ad bellum. Customary international law requires that the use of force be proportionate to the justification for military action and necessary because no other reasonable means of redress are available. Russia’s Jus ad Bellum Claims The morning of the invasion in Ukraine, Russia’s permanent representative to the United Nations notified the U.N. Secretary-General of its military action. Appended to the notice was a speech by Russian President Vladimir Putin describing a host of grievances and justifications for the invasion. While it is not clear that international law has had any influence on President Putin’s decisionmaking, he nevertheless couched several justifications using international law and the U.N. Charter’s terminology. Russia’s legal theories centered on three arguments. First, Russia claimed to be defending itself from a generalized threat posed predominantly by the United States and other NATO members but emanating from Ukraine. Article 51 of the U.N. Charter preserves states’ “inherent right” of self-defense when an “armed attack occurs,” but it does not define the right’s exact contours. While there are a range of views on how imminent the attack must be before use of force in self-defense is allowed, observers have generally concluded that the absence of military action in Ukraine threatening the Russian state means Russia’s self-defense argument is not viable under any standard. Second, Russia claimed to be acting in collective self-defense of separatist areas in Ukraine’s Luhansk and Donetsk regions, which the Russian government recognized as independent states three days before its invasion. However, the two areas do not appear to satisfy international law’s traditional criteria for statehood. In particular, legal analysts assert that the areas cannot be considered states because their purported independence was established through the use of force; they do not exercise control over the whole of their claimed territory; and they depend upon Russia for economic, financial, political, and military support. Even if the regions could be considered states, observers note that jus ad bellum principles of necessity and proportionality would require Russia to limit its military intervention to actions that protect only these breakaway regions—not a full-scale invasion aimed at the “demilitarization” of all of Ukraine. Third, Russia argued that its invasion is designed to prevent “genocide perpetrated by the Kiev regime” against Russians and Russian-speakers in Ukraine. As discussed in this Legal Sidebar, Ukraine “emphatically denies” the genocide allegation and has challenged Russia’s assertion before the International Court of Justice. Neither the United States nor international human rights monitors have reported evidence of such genocide in their assessments, and most observers view the claim as an entirely fabricated pretext for overthrowing Ukraine’s government. Jus in Bello: What Rules Apply During the Conflict? As the war in Ukraine proceeds beyond the initial invasion to sustained armed conflict, jus in bello principles become more prominent. Jus in bello is derived from a collection of treaties and customary international law. Two sets of international agreements, the Hague Conventions of 1899 and 1907 and the four Geneva Conventions of 1949, form the foundation of the treaty-based portions of jus ad bellum, although other treaties are also relevant. The Hague Conventions chiefly focus on regulating the means and methods of warfare, and the Geneva Conventions primarily provide protections for those who do not take part in the hostilities or can no longer fight. Ukraine and Russia are parties to both core sets of treaties but not to all of their related protocols. “Grave breaches” of the Geneva Conventions and other serious violations of jus in bello can constitute war crimes—an issue explored in this CRS Sidebar. Key jus in bello principles include the following:

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source: https://news.usni.org/2022/03/25/report-to-congress-on-law-of-war-and-the-invasion-of-ukraine

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