The International Law of War and Russia’s ‘Special Military Operation’

The International Law of War and Russia’s ‘Special Military Operation’
Image Source: “Ukraine army cuts off main road to Sloviansk” by snamess is licensed under CC BY-NC 2.0.

Moscow has refused to call its actions in Ukraine a ‘war’, instead suggesting that it is simply conducting a ‘special military operation’. Such an unyielding position is inherently steeped in the international law of warfare. By refusing to issue an official Declaration of War against Kyiv, the Kremlin is cherry-picking jus ad bellum norms in order to paint its actions as a “[humanitarian] intervention by invitation”, feeding into its perception of Ukraine as an unviable state, whilst also seeking to avert a myriad of unfavourable domestic implications which would be triggered by a State of War.

“Intervention by Invitation” 

Putin has sought, quite skillfully, to frame and justify his invasion of Ukraine using language present in the UN Charter, portraying the war as akin to a self-defensive peacekeeping mission. In his speech on 24 February, the Russian president evoked Article 51 of the Charter on the “inherent right of individual and collective self-defence.” He ironically argued  Moscow was justified in using force against Kyiv to prevent the latter from using force against the pro-Russian Donbas republics, suggesting that Russia does not start wars but rather “ends them”. 

The Kremlin’s desire to portray its actions as being in line with international law has also stemmed from its direct recognition of the Donetsk and Luhansk People’s Republics (DPR and LPR, respectively) three days before the invasion. Although neither the DPR nor the LPR meets the sovereignty requirements outlined in the Montevideo Convention, Moscow nevertheless used their recognition to argue that its actions do not constitute a war but rather a legitimate “intervention by invitation.” Russia has also sought to tie its prior justification with the concepts of humanitarian intervention and the responsibility to protect (R2P) principle, arguing that since Kyiv was committing ‘genocide’ against the pro-Russian population in eastern Ukraine, and in light of Zelensky’s unwillingness to prevent grave human rights abuses, Moscow had no other choice but to use force to stem these violations.

A Declaration of War would not violate Russia’s rights vis-a-vis the Hague Convention (III) on the Opening of Hostilities, nor see individuals prosecuted by the International Criminal Court (ICC) for the crime of aggression since Russia is not a signatory of the Rome Statute. However, it would violate the foundations of the UN Charter, of which Russia is a signatory. In particular, it would go against Article 2(4), which states that “… all Members shall refrain… from the threat or use of force against the… independence of any state…”, a notion which would shine new light on Putin’s true military intentions, and destroy Russia’s official narrative. Initiating a State of War by the Kremlin would, inherently, transform Ukraine into the victim of international aggression rather than the perpetrator of violence in the Donbas, further proving Putin’s R2P-grounded “humanitarian intervention by invitation” narrative to be legally hollow.

Unequal Legalistic Status Within the ‘Near Abroad’ 

It is also important to note that Moscow’s linguistic reformulation of its invasion as a ‘special military operation’ reflects Russia’s habit of avoiding the term ‘war’ about its use of military force in the post-Soviet space. The two Chechen wars, and the Russo-Georgian war, were portrayed by Moscow as either “counter-terrorist operations” or a “peace enforcement operation,” respectively. Ukrainian legal scholar Kostia Gorobets notes that this pattern has also been evident in Ukraine, with the Kremlin’s reluctance to officially declare war against Kyiv reflecting Moscow’s perception of the ‘near abroad’ as its imperial backyard. Since Russia believes it is using force within its “own [colonial] domain,” it reserves a ‘special military operation’ for its southern neighbour rather than a war. After all, the “very concept of a war assumes equality of status”, a notion which clashes with the Kremlin’s perception of Ukraine as an integral part of Moscow’s sphere of influence. This idea has also been reflected in Putin’s assumption that the Ukrainian state is unviable and fake, with the Russian president proclaiming, on 21 February, that Ukraine was “created by Russia”. 

Such a position reinforces the “hierarchical” nature of the “unwilling or unable” doctrine  that Moscow uses against Kyiv to justify its humanitarian intervention claims. By this logic, since the ineffective Ukrainian state lacks sovereign equality with Russia, and cannot protect its own population, a ‘special military operation’, rather than a full war, is required to bring the rebellious Ukrainian entity into the Russian fold. The Kremlin sees a Declaration of War as inherently an inter-state phenomenon, meaning that Ukraine, which was gifted its sovereignty and statehood by Moscow, is not privy to a State of War, but rather a pacifying military venture.

War Powers and Russia’s National Law 

Another key aspect which has prevented Russia from calling its actions in Ukraine a war has been the extensive domestic ramifications which a Declaration of War could trigger: the so-called ‘wartime period’ and martial law under Article 18 of Russia’s Federal Law N 61-FZ “On Defence” and “The State of War”. Such a legalistic shift would mean severing any diplomatic, social, and economic relations with Ukraine, inadvertently hampering Russia’s ability to export oil and gas to Europe through Ukrainian territory. It would also see the country’s economy shift dramatically to a war footing amidst the almost complete freezing of the constitutional rights enjoyed by Russian citizens. Putin has undoubtedly demonstrated, since 24 February, that he is not above domestic clampdowns. Still, recent developments would not compare to the extent and gravity of restrictions that a formal Declaration of War would usher in. A State of War would further exacerbate existing discontent among the population, as evidenced recently by the anti-mobilisation protests and long border queues to leave the county.


Finally, by reframing the ‘special military operation’ as a war, the Kremlin risks failing to live up to its own narrative. The full mobilisation of the country does not sit well with the idea that Ukraine is a failing, dysfunctional, and non-existent state, which can be easily overcome with limited military action without disturbing the everyday lives of ordinary Russian citizens. Therefore, despite the recent mobilisation drive of 300,000 Russian reservists, which Putin ordered on 21 September, and which represents an escalation of the ongoing conflict, Moscow has continued to stick to the original framing narrative. The alternative would not only “confirm the fact that Russia’s professional army has [struggled]” but it would, concurrently, “elevate Ukraine to the status of an equal adversary”.

Although the Kremlin has so far been successful in boosting its army’s ranks without having to resort to an official State of War, the recent military call-up has brought the conflict into the homes of many ordinary Russian citizens. Unsurprisingly, this mobilisation threatens Putin’s strategy for relative domestic stability–that is, in exchange for their passive support or indifference, the preservation of ordinary life for the majority of the population. A shift in public attitude here could exacerbate political instability, possibly bringing about added domestic pressures on Moscow as it prepares for prolonged conflict in Ukraine.

In the short term, the conflict will most likely continue into the winter, as Russia seeks to fully retain and annex the areas under its control. To that end, it is likely to take advantage of the impending economic and energy crises to hinder the West’s support of Kyiv. Still, a future recognition by the Kremlin that it is at ‘war’ with Ukraine is unlikely. If anything, the ongoing partial mobilisation has further indicated Putin’s desire to stick to the original framing narrative–a move which continues to be grounded in the Kremlin’s cherry picking of jus ad bellum norms, a vision of Ukraine as an integral part of the Russian state-entity, and an acute fear of domestic repercussions and further unrest.

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