Symposium: Use of force, territorial integrity, and world order: continuing the debate
Ukraine and Beyond: the need to reaffirm basic principles and to build a new consensus on the prohibition of the use of force in international relations
by Professor Sâ Benjamin Traoré
Published on 22 March 2023
A divided world
In their introduction to the recent AJIL Agora on Ukraine and the future of the international legal order, Ingrid (Wuerth) Brunk and Monica Hakimi suggest that Russia’s invasion of Ukraine is the most significant shock to the global order since World War II. Leaving aside—for now—the merit of distinguishing between acts of aggression and suggesting that some aggressions ‘are better than others’, one can only observe that all parts of the world are not shocked in the same way by what is happening in Ukraine. Simply put, reactions have not been similar in the West and in the rest of the world. Many states, especially in the Global South, have shown considerable reluctance to join the in-unison responses adopted by the West.
This profound international divide vis-à-vis the most appropriate approach to Russia’s unlawful use of force against Ukraine is well captured by the voting results displayed on the board of the Assembly Hall during the adoption of the successive resolutions adopted by the UN General Assembly (UNGA) on the situation in Ukraine. As it is well-known, the UNGA’s 2 March Resolution A/RES/ES-11/1 on ‘Aggression against Ukraine’ was adopted by a vote of 141 states with an alarming number of 35 abstentions. As I discussed elsewhere, almost half of the abstaining states were African (not to mention that eight African countries did not even submit their votes) and one voted against the resolution. This pattern was repeated during the adoption of the UNGA’s Resolution on humanitarian assistance to Ukraine, which was adopted on 24 March 2022 with five votes against, 38 abstentions and 140 votes in favour. The Resolution on Territorial integrity of Ukraine was adopted on 12 October 2022 with 35 abstentions and five votes against it. More strikingly, the UNGA’s Resolution on Furtherance of remedy and reparation for aggression against Ukraine was adopted on 14 November 2022 with more than half of the UN members not voting in favour (Yes: 94 | No: 14 | Abstentions: 73 | Non-Voting: 12 | Total voting membership: 193). Besides the voting, it is striking how disconnected from the West many non-Western states and ordinary people are regarding other responses to Russian aggression, for example in regard to sanctions against Russia.
Professors Ingrid (Wuerth) Brunk and Monica Hakimi are mindful of this fact. Acknowledging the divide between the ‘West and its closest allies’ on the one hand and the rest of states ‘standing on the sidelines’ on the other, they find this fact ‘troubling’. It is, therefore, no surprise that they warn that ‘for this prohibition to stay salient, other states must invest in it and not let it slip away’. The truth is that this line of argumentation lacks persuasiveness in many non-Western parts of the world. It sounds like the West is only discovering the virtue of the prohibition of the use of force and aggression now with Ukraine. In what follows, I explain why, contrary to Western sentiments, the rest of the world is not shocked in the same way by the Russian aggression. I further discuss why it is nevertheless vital for Global South states to reaffirm the critical importance of prohibiting the use of force and aggression in international relations. I conclude by exploring why for Western voices to be audible in the South they need to depart from hypocrisy and double standards in exposing all aggressors past and present and holding them into account.
Why is the Russian aggression not (so) shocking in other parts of the world?
The prohibition of the use of force contained in Article 2§4 of the UN Charter and in customary international law is, according to the International Court of Justice (ICJ), a cornerstone of the international legal order. The peremptory character of the rule, especially regarding the prohibition of aggression, is also not questionable. It is equally indisputable that Russia has egregiously violated this critical rule. Based on these premises, it is suggested that the world should have been profoundly shocked by Russia’s invasion. Professors Ingrid (Wuerth) Brunk and Monica Hakimi pinpoint the inadmissible transgression of at least two critical principles: non-use of force and the prohibition of aggression on the one hand and political independence and territorial integrity on the other. Therefore, the question arises, what justifies the indifference or reluctance of so many non-Western states and individuals regarding Russia’s manifest violation of fundamental rules and principles?
The answer to this question is twofold. First as far as the prohibition of the use of force is concerned, its persistent violations by Western military powerful states, in particular, have left the legitimate sentiment in the rest of the world that there is nothing new under the sun. Therefore, the question becomes why Russia’s aggression should be more repugnant than others. Since the end of the Cold War, there have been several instances of unlawful use of force. Western powerful military states and coalitions are mainly responsible for this banalisation of the use of force regime under international law. NATO’s intervention in Kosovo and the US invasion of Iraq in 2003—which would have been unlikely during the Cold War—are emblematic examples of these blatant violations of fundamental rules. This very relaxed approach to the use of force continues until today by the US so-called ‘global war on terror’, which knows no real legal constraints. The rest of the world has also witnessed other problematic instances of the use of force, such as NATO’s intervention in Libya or other Western-led use of force in Syria. Nevertheless, because no serious consequences followed these violations of the prohibition of the use of force and aggression giving the impression that aggression entails no legal consequences. Therefore, it is only logical that it does not appear clear to the non-Western world why Russia should suffer consequences that others never suffered. Moreover, as explained here, critiquing this fact as ‘whataboutism’ is not enough to invalidate this perception.
Secondly, the same line of reasoning applies to the rule of respect for political independence. Internal as well as external self-determination seems to be, at best, an empty concept—if not simply a big joke—to many non-Western states and peoples, since violations of these principles have been recurrent by the very states that appear overzealously invoking them against Russia. What do non-interference, political independence and self-determination mean to many African states and peoples where these fundamental principles have been constantly trampled on by former colonial powers that never really departed in the new neo-colonial setups? What do they mean for Palestinians? International rules and principles do not apply in the same way for all. This fuels resentment or at least indifference. At the systemic level, this “Western exceptionalism” has built the perception that there are good and bad violators of international law. This has contributed to the erosion of fundamental norms and principles, paving the way for other violators, such as Russia. Unsurprisingly, Putin abundantly referred to these instances.
Non-Western peaceful countries must not lose focus
The prohibition of the use of force in international relations has often been declared dead by international legal scholars, a famous example being Thomas Frank’s 1970 Article. These proclamations did not prevent the reaffirmation of the centrality of the rule on different occasions, including by the ICJ a decade later in the Nicaragua Case. However, as pointed out above, since the end of the Cold War, Article 2§4 has been subject to recurrent blows which pose undeniable threats to its survival. Despite these constant threats, some believe in ‘The Nine lives of Article 2(4)’ and think that Article 2§4 has shown remarkable resilience and stubbornly refuses to die. Be it as it may, as it faces another hard hit, one may wonder, ‘How Many Deaths Can Article 2(4) UN Charter Die?’ and how long it could continue resurrecting.
One thing is certain: the multiple attacks against the prohibition of the use of force have mostly come from the same group of states, i.e., the traditional military powers with the Western countries on the one end and Russia on the other. This does not mean there are no aggressors beyond this circle. There are several instances in which non-Western states have engaged in military actions that violated the prohibition of using force in international relations. However, these instances remain relatively contained and do not pose the same type of threat to the international system based on the basic rule of prohibition of the use of force. Most world states are peaceful countries, whether this peacefulness is genuine or simply due to a lack of military means allowing for imperial ambitions. For this reason, I believe that this peaceful and law-compliant majority should not lose focus on the critical importance of the reaffirmation of the prohibition of the use of force and aggression in international relations.
Despite their legitimate resentment over a fundamentally ‘unjust international system’, Global South countries must not get distracted by international rivalries between militarily and economically powerful states with continuous desires for imperial expansion. I have extensively explained here why I believe open and unambiguous condemnation of Russia’s aggression by African states is critical. First, Global South countries have nothing to gain from the banalisation of aggression. On the contrary, being the most common victims of foreign intervention, they have everything to lose from such a banalisation. Second, as Russia’s invasion of Ukraine also hits at the core of the principle of territorial integrity, condemning it in firm terms would only amount to refusing the weakening of such principle cherished by the vast majority of world states and peoples. From a purely legal point of view, the reactions to each instance of the use of force are highly critical in assessing the evolution of states’ practice vis-à-vis the prohibition. Thus, despite the divide, the adoption by the UNGA of its Resolution on the Aggression against Ukraine by a good majority of states can only be welcomed.
Moving forward: the urgency of accountability for all aggressions and violations of fundamental principles
Since Russia intervened in Ukraine, there have been uncountable condemnations worldwide. These condemnations are coupled with calls for accountability. One of the most noteworthy is the proposal for creating a special tribunal on aggression against Ukraine. For these calls to be credible and audible beyond Western circles, it is imperative to build robust international consensus on the need to end the repeated violations of the prohibition of the use of force. A strong consensus in this context means that international actors must seize the opportunity of the Ukrainian situation to take decisive actions to vilify all acts of aggression, including those carried out by Western countries. As no argument of non-retroactivity can stand regarding these past instances of aggression, nothing should prevent their inclusion in the current conversation if we are serious about rejecting aggression. This approach must be particularly favoured considering that nothing has contributed more to eroding the prohibition of the use of force than the repetitive violations carried out since the end of the cold war by Western countries.
However, the trends in this conversation do not seem to take the right direction. Mainstream propositions only concentrate on Russian aggression and barely acknowledge others. When they do so, they make problematic comparisons—such as the one drawn by Professors Hakimi and (Wuerth) Brunk—suggesting that some aggressions are more justifiable than others. However, there is no good and bad aggression. All acts of aggression must be put on the same footing. They should be responded to decisively and face the same opprobrium and reprobation. The fact that an aggressor uses its hegemonic resources—including a more sophisticated legal argumentation by its prominent layers—does not make its aggression more admissible. Iraq is not more tolerable than Ukraine. Failing to look at this big picture that encompasses current and recent acts of aggression in the ongoing conversation leaves the sad impression of selective legality at best, if not that international law principles do not exist and that all is hypocrisy, power dynamics, and interest. A quit look at the voting attitude on the recent UNGA resolution requesting an advisory opinion on Palestine is revealing. Consistency matters! As horrible as it is, the Ukrainian cloud could have a silver lining. It gives a unique opportunity to re(build) a new consensus over principles. It does not seem that this is the route that is being taken.