Dr David Turns, Senior Lecturer in International Law in the Centre for Defence Management and Leadership at Cranfield University, comments on the international legal framework of current tensions between Russia, Ukraine and NATO:
“Amid all the current media interest in the massing of Russian military forces near the frontiers of Ukraine, there has been next to no discussion of the international law relevant to the situation. To some extent this may be because the attention has been heavily focused on the question of whether Russian military forces massing on the land borders of Ukraine with Belarus and Russia itself, and Russian naval units on the Black Sea, are going to be used in an invasion of Ukraine. This would ostensibly implicate the international law relating to the use of armed force by states.
However, if what is being contemplated is a Russian use of force against Ukraine, then this is not the correct legal framework for the situation. Although there has been relatively little ‘hot’ warfighting between the parties for some time, Russia and Ukraine are in fact already in an ongoing situation of armed conflict as defined by international law, and the body of law actually applicable to the relations between them is therefore international humanitarian law (IHL).
Russia’s invasion and subsequent annexation of Crimea, which created a situation of belligerent occupation, and its active support for separatist forces in Donbas, mean that there has been a situation of international armed conflict in existence between Russia and Ukraine since the first half of 2014. As such, the large majority of IHL rules are already directly applicable between the parties, such as those relating to the treatment of captured soldiers in Donbas and the protection of the civilian population in occupied Crimea. It makes no difference that Russia persistently denies the existence of a situation of armed conflict with Ukraine, or that it is involved therein: an armed conflict exists, and IHL applies, automatically whenever there is a resort to armed force between states (as the International Criminal Tribunal for the Former Yugoslavia put it in 1995). Although the situation in Crimea is militarily quiet, violations of IHL have been sporadically reported in Donbas, most recently a Russian-backed separatist artillery barrage into Ukrainian-controlled territory that hit a nursery school – a protected object under IHL – in Stanytsia Luhanska on 17 February.
In these circumstances, it would be redundant to consider whether Russia will illegally use force against Ukraine, since an armed conflict has already been going on for the last eight years: the rules surrounding the legality of the resort to armed force are only of relevance at the initiation of such a conflict. It would be more correct to consider if Russia will illegally use force against other countries in the region: for example, a move by Russian military forces against any of the Baltic states would be an entirely different question. A build-up of Russian forces and their concentration near the frontiers of Lithuania, Latvia or Estonia could certainly be viewed as a threat to use force in contravention of the United Nations Charter. But there is no evidence of such a direct threat to those or any other states in Europe, and Russia cannot now be accused of threatening to use force against Ukraine because that happened already in 2014.”