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American Journal of  
Society and Law ( AJSL)

Russia’s War Against Ukraine: A Contravention of  International Humanitarian Law
Muhammad Ibrahim Bukar1*

Volume 2 Issue 1, Year 2023
ISSN: 2835-3277 (Online)

DOI: https://doi.org/10.54536/ajsl.v2i1.1308
https://journals.e-palli.com/home/index.php/ajsl

Article Information ABSTRACT

Received: February 16, 2023
Accepted: March 03, 2023
Published: March 05, 2023

In February 2022, Russian forces invaded Ukraine and began targeting military objectives 
in some major Ukrainian cities. In the following months, airstrikes continued and extended 
to other areas of  Ukraine, including the capital Kyiv. Attacks started being conducted 
against civilians too. For instance, it has been reported that an apartment complex outside 
of  Kharkiv was directly targeted. International humanitarian law, or the laws of  war, protects 
civilians and noncombatants from the dangers of  armed conflict. It addresses the conduct 
of  hostilities-the means and methods of  warfare - by all parties to a conflict. Foremost is 
the rule that parties to a conflict must always distinguish between combatants and civilians. 
While humanitarian law recognizes that some civilian casualties are inevitable during hostilities, 
it imposes a duty on parties to the conflict to distinguish between combatants and civilians 
at all times, and to target only combatants and other military objectives.  Civilians lose their 
immunity from attack when they are “directly participating in the hostilities” - such as by 
assisting combatants during a battle. This article aimed to contribute to the understanding of  
the contravention of  the international legal framework that regulates the use of  force in the 
Russia - Ukraine armed conflict and how a powerful member of  the United Nations Security 
Council (UNSC) deliberately circumvented treaty provisions on the use of  force. The article 
concludes with a sidebar of  the need to exploit avenues for accountability that will help to 
forestall future occurrences. 

Keywords
International Humanitarian 
Law, Armed Conflict, Russia, 
Ukraine, United Nations

1 Nile University of  Nigeria, Abuja, Nigeria
* Corresponding author’s e-mail: bukar.ibrahim@nileuniversity.edu.ng

INTRODUCTION
The recent attack on Ukraine, similar to the previous 
cases of  invasion of  Georgia in 2008 and Ukraine in 
2014 represents an obvious violation of  international 
law. Following the February 2022 invasion of  Ukraine, 
Russia’s actions have come under severe criticism as many 
countries saw the action as a clear negation of  the standard 
rule governing when states can take up arms or use force 
against one another. As a result of  the inadequacy of  
legal parameters in understanding Russia’s actions in 
Ukraine, many observers, not excluding the United States, 
France, United Kingdom, and other state and non-state 
actors have increasingly drawn attention to the numerous 
instances where Russian military attacked civilian 
populations and deliberately struck protected sites and 
creating large pool of  refugees wandering across Europe. 
These actions by Russian military constitute egregious 
violations of  international law governing the conduct of  
war. In essence, Russia’s actions against Ukraine can hardly 
fit into the legal requirement for war pushing Russia to rely 
on propaganda and unfounded approximations. 
To contribute to furthering the understanding of  the 
complex issues at stake, this article is focused on the legal 
angle of  an utterly political affair. Particularly, this attempt 
would contribute to understanding the contravention of  
the international legal framework that regulates the use 
of  force in Ukraine and how a powerful member of  the 
United Nations Security Council (UNSC) deliberately 
circumvented treaty provisions on the use of  force. The 
article concludes with a sidebar of  the need to exploit 
avenues for accountability that will help to forestall future 
occurrences. 

METHODOLOGY
In conducting this research, I adopted the doctrinal 
approach and as such, the research completely relied 
on consultations of  academic materials written on the 
subject area. These materials include textbooks, articles, 
statutory authorities and case laws. The research did 
not employ any field work which will require the use of  
questionnaires or interviews. By so doing, I concerned 
myself  with identifying the existing gaps and ensuring 
that I tailor the research towards filling the identified gaps. 

The Laws of  War
By and large, the concept of  the law of  war specifically 
refers to a segment of  international law that governs the 
initiation of  war, use of  force, the conduct of  war, and the 
protection of  victims of  war. (Detter, 2016). Generally, 
it provides the guidelines on which basis wars can be 
prosecuted. (Roberts, 2000). International law scholars 
such as (Solis, 2010) prefer to use the terminology 
interchangeably with International Humanitarian 
Law (IHL) or even law of  armed conflicts. To further 
appreciate the extent of  knowledge on the subject matter, 
there exist two main categories of  the law of  war: (Stahn, 
2006); jus ad bellum (rules that regulate when a state 
can initiate or resort to the use of  force) and jus in bello 
(legal rules governing the conduct of  both states and foot 
soldiers during war).
Though the two rules appear to be closely related, they 
function independently of  one another. That is to say 
“compliance with one category is required regardless of  
compliance with the other.” (Michelle, et al., 2022). That 
is to say, even if  a state was attacked without legal due 

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processes, its response in terms of  defense must be seen 
to comply with the legal and acceptable procedure of  
conducting war. In relation to the specific case of  Russia’s 
attack of  Ukraine, the drafters of  the law of  war expect 
Ukraine to conduct its defense against Russian aggression 
within the ambit of  the law of  jus in bello.

Jus ad Bellum: Dissecting the Reasons for the 
Hostilities in Ukraine 
To analyze the focal point of  jus ad bellum in general, 
and the specific case of  Russia’s attack of  Ukraine, one 
must pay priority to the United Nations Charter. In 
specific terms, Article 2(4) of  the UN Charter formally 
forbids all member states from the threat or use of  force 
against fellow member states. It reads “all Members shall 
refrain in their international relations from the threat or 
use of  force against the territorial integrity or political 
independence of  any State, or in any other manner 
inconsistent with the Purposes of  the United Nations.” In 
other words, this provision recognized the inviolability of  
borders, and further anchors the respect for the territorial 
integrity of  states while also restraining the use of  force 
against independent states.  
Aside from the UN Charter’s unambiguous prohibition 
of  state intervention in the internal affairs of  fellow 
states, there are a number of  other agreements that were 
concluded based on the framework of  the UN Charter 
that recalled the importance of  peaceful settlement 
of  disputes as well as cautioned member states from 
threatening the international relations. For example, one 
such declarations that seek to promote peaceful resolution 
of  disputes is the resolution 2625 of  the UN General 
Assembly of  24 October 1970 reads “Declaration on 
Principles of  International Law concerning Friendly 
Relations and Cooperation among States in accordance 
with the Charter of  the United Nations.” However, there 
are exceptions to the rule of  Article 2(4). As enshrined in 
Article 51 of  the same UN Charter, states have a right to 
take either individual or collective actions regarding self-
defense. (Ruys, 2010). More so, according to (Schweigman, 
2001). Chapter VII of  the UN Charter permits members 
of  the UN Security Council to resort to the use of  military 
actions in the event that peaceful measures have proven 
ineffective in restoring peace and security. Russia has not 
reported Ukraine for scrutiny within the Security Council 
and the UNSC have not exhausted peaceful avenues as 
required by Article 41.  
The proposition by President V. Putin and other top 
officials of  the Russian regime that its use of  force 
in Ukraine can be justified under the provisions for 
self-defense as enshrined in Article 51 of  the UN 
Charter cannot hold water. Article 51 reads “nothing 
in the present charter shall impair the inherent right of  
individual or collective self-defense if  an armed attack 
occurs against a member of  the United Nations.” On 
the contrary, there is no record suggesting that Ukraine 
has threatened to commit and or have committed an 
armed attack against the Russian Federation. Again, there 

is nothing to suggest that Ukraine has taken up arms 
or threaten to take up arms against Russians living in 
Donetsk and Luhansk (two regions within the borders 
of  Ukraine with significant Russian populations). Besides, 
even if  Russia has gathered sufficient evidence suggesting 
that Ukraine had threatened or planned to take up arms 
against Russians in the Ukrainian regions of  Donetsk 
and Luhansk, the cover provided by Article 51 cannot 
be overstretched to sanction a collective action under 
the guise of  self-defense because the two regions are not 
members of  the United Nations. In essence, Donetsk and 
Luhansk do not qualify as states going by the rule of  state 
recognition in international law. (Korotkyi et. al. 2018).
Besides, under international law and jus ad bellum, it is 
legal and acceptable for a state to permit the use of  force 
by another independent state on its territory. Usually, this 
must be consented to by the inviting state and maybe 
to assist in the fight against terrorists or rebel forces 
domiciled in the state that offers such invitation (Deeks, 
2013). Yet, the case under consideration does not witness 
any form of  formal or informal invitation extended to 
Russia by Ukraine. Therefore, the invasion of  Ukraine 
without invitation runs contrary to the rules of  jus ad 
bellum.

Russia’s Assertion of  Jus ad Bellum 
On the very morning that Russia’s military tanks and 
ballistic missiles were prepared to start the bombardment 
of  Ukraine, its permanent representative to the United 
Nations, Vasily Nebenzya alerted the Secretary General 
of  the UN that Russia’s military are underway to attack 
Ukraine (Michelle et al. 2022). Attached to the formal 
submission of  the declaration of  war was Vladimir 
Putin’s speech in which he recounted some grievances 
as justification for the attack. Though it is difficult and 
unclear as to the position of  international law regarding 
the invasion of  Ukraine by Russia, Putin’s letter to the 
UN provided some justifications under the pretext of  
international law. Some of  the justifications were drawn 
from the body language of  the UN Charter. A perusal of  
Putin’s justifications anchored on three main arguments.  
Fundamentally, Russia claimed that the United States and 
other European NATO members threatened its survival. 
Thus, the attack was initiated as a means to defend itself  
from such eminent threat. It argues that such threat posed 
by NATO emanates from within Ukraine as a friend 
of  NATO members. While the UN Charter Article 51 
reserves the “inherent right” of  member states to self-
defense in times of  armed attack, it does not lineate the 
specific extent of  such right. Therefore, the question 
arises as to measure the threat that would warrant states to 
exploit self-defense measures under the article. Whatever 
the extent of  provocation before a state invokes the spirit 
of  Article 51, commentators argued that the absence of  
physical threat or military action by Ukraine against Russia 
means that Russia’s justifications cannot be valid under 
any guise. (Michael, 2022). Another justification provided 
by Russia for the invasion of  Ukraine is anchored on 

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the principle of  “collective self-defense. (Kelsen, 1948).” 
Prior to the invasion of  Ukraine, Russia had declared the 
political independence of  two regions of  Donetsk and 
Luhansk arguing that these regions have been subjected 
to all forms of  violations by the state of  Ukraine. Be that 
as it may, the regions cannot be treated as independent 
states by international law standard of  statehood and thus 
do not fit into the equation of  collective self-defense as 
envisioned by the drafters of  the UN Charter. Further 
to the above point of  analysis, legal thinkers have argued 
that the regions do not qualify as states mainly because 
their claim of  independence was a function of  forceful 
declaration. Again, these regions within Ukraine do 
not have absolute control over the territories under its 
domain and it is the Russian Federation that engineered 
its so-called independence. 
In addition, even if  the so-called independent territories 
have been fully recognized as states, thinkers have noted 
that the principles of  jus ad bellum, including necessity and 
proportionality means that Russia’s military action should 
have been limited to the regions and not an extensive attack 
aimed at “demilitarization” of  the entire Ukraine.
Furthermore, the Russian Federation contended that 
its attack on Ukraine is contrived to prevent “genocide 
perpetrated by the Kiev regime” been perpetrated against 
the Russian people in Ukraine. (Michael, 2022). On its part, 
Ukraine has unequivocally rejected any such allegation 
against its own citizens and has even approached the 
International Court of  Justice for formal affirmation. 
In fact, there has been no formal or informal complains 
from the United Nations or any group of  international 
human rights organizations regarding Ukraine’s ill-
treatment of  Russian speaking populations within its 
border. In essence, observers argued that the idea that 
Russia’s invasion of  Ukraine was born solely to protect 
against Ukrainian genocide appears to be total fabrication 
and thus illegal and a contravention of  international law 
(Sean et al. 2022). 

Jus in Bello: What are the Conducts and Responsibilities 
of  Belligerent Nations?
Since the disputes between Russia and Ukraine transited 
to full-scale war, the application of  the principles of  jus in 
bello become more important. The concept of  jus in bello 
is founded on treaties and customary international law. 
While other additional treaties and agreements can also 
form a body of  jus in bello, there are two main collections 
of  international agreements that constitute it namely, 
the Hague Conventions of  1899 and 1907 and the four 
Geneva Conventions of  1949. While Hague conventions 
are a set of  rules governing the modus operandi warfare, 
the Geneva Conventions serves to regulate the treatment 
of  war victims and surrendered actors. It is noteworthy 
to stress that both Ukraine and Russia are parties to 
the core treaties. However, not all of  them signed up to 
some of  the related protocols. A violation of  the Geneva 
Conventions constituting “grave breaches” Henckaerts 
(2009) can amount to “war crimes May (2007).”

The indispensable principles of  jus in bello include first 
Military necessity. This principle requires states that are 
engaged in armed conflicts to exploit measures that are 
necessary to accomplish its legitimate military objectives, 
as long as those measures are within acceptable 
international law standards (Henckaerts & Louise, 
2005). Second, the humane principle requires all parties 
to a conflict must ensure to exploit only measures that 
would not inflict undue suffering, injury, or destruction. 
That is to say, parties to a conflict are required to not 
exploit measures that would lead to suffering, injury, 
or destruction if  such measures would not lead to the 
accomplishment of  its military objectives. Third, the 
principle of  Proportionality which dictates in Articles 51 
and 57 of  the 1977 Additional Protocol I that all parties 
to a conflict are required to deploy military force that 
is commensurate with the force of  the opponents and 
that would minimize civilian casualties. For this reason, 
the ICJ has expressed in the case of  (Nicaragua v The 
United States of  America, 1984) that: “self-defense […] 
warrant[s] only measures which are proportional to the 
armed attack and necessary to respond to it, a rule well 
established in customary international law.” Similarly, the 
ICTY has noted in the (Kupreskic case) that: “In the 
case of  attacks on military objectives causing damage to 
civilians, international law contains a general principle 
prescribing that reasonable care must be taken in attacking 
military objectives so that civilians are not needlessly 
injured through carelessness.” The Court further recalled 
that these principles have to some extent been spelled 
out in Articles 57 and 58 of  the First Additional Protocol 
of  1977. Such provisions, it would seem, are now part 
of  customary international law, not only because they 
specify and flesh out general pre-existing norms, but also 
because they do not appear to be contested by any State, 
including those that have not ratified the Protocol. The 
use of  excessive force is therefore discouraged. Lastly, 
the principle of  distinction states that parties to a conflict 
are required to provide the clearest distinction between 
civilians and combatants. This provision also required 
parties to distinguish protected and unprotected objects. 
Parties are required by this principle to protect both 
civilians and protected objects.   
Apart from the general principles enumerated above, the 
rule of  jus in bello required all parties to a conflict to 
protect some groups including civilians, children, medical 
and religious personnel, and voluntary aid workers. The 
principle extended its shield to protect groups that no 
longer engage in hostilities such as prisoners of  war, 
wounded, sick etc. In its Common Article 3, the four 
Geneva conventions provide a “minimum yardstick” 
(Gandhi, 2001) of  protection that is required of  any party 
that takes prisoners of  war or war victims or those who can 
no longer participate in the conflict. Acts that are prohibited 
under Common Article 3 of  the four Geneva Conventions 
include, sexual assault, rape, torture, cruel treatment, 
biological experiments, hostage-taking, murder, mutilation, 
or maiming of  those not taking part in hostilities. Under 

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this provision, certain properties are required to enjoy 
special protection. This includes historic monuments, 
hospitals, religious sites, art, science, or charitable purposes 
and places where the sick and wounded are collected, 
provided they are not used for military purposes.
The rule governing the prosecution of  war also limited 
the weapons that parties to a conflict can use during arm 
conflict. Accordingly, jus in bello prohibits two forms of  
weapons. First, it prohibits weapons that cause unnecessary 
injury or weapons that can hardly be manipulated to 
distinguish targets. Second, it also prohibits poisonous 
chemicals and biological weapons (Mallison, 1967). 
Similarly, jus in bello provides legal prohibitions against 
the use of  certain forms of  methods in prosecution of  
war including pillaging, limiting destruction and seizure 
of  non-military property, requiring free passage of  some 
humanitarian relief, and regulating the white flag of  
surrender, among other things.

The Effectiveness of  Jus in Bello in Ukraine
The position of  observers and some foreign governments 
such as the US and UK is that some of  the actions taken 
by Russia have violated the laws of  war. Some of  the 
allegations against Russia which represents the position 
of  facts of  law and which are a contravention of  law, 
including the use of  ballistic missiles and other explosive 
weapons with no precision and indiscriminately on 
the Ukrainian populations, which constitute egregious 
violations of  the laws of  war, particularly the law on the 
use of  weapons of  mass destruction. The Use of  ballistic 
missiles and other explosive weapons in an indiscriminate 
manner in densely populated areas. 
However, it is important to note that neither Russia 
nor Ukraine are parties to the convention on cluster 
Munitions, the indiscriminate use of  sophisticate 
weapons have implications under the jus in bello. Some 
have argued that certain elements of  Ukraine’s conduct 
are also unlawful. In particular, the public display of  
captured Russian soldiers during news conferences could 
implicate the Third Geneva Convention’s requirement to 
treat soldiers humanely and protect them from “insults 
and public curiosity (Geneva Conventions, 1949).”
In all these, proving that a party to the conflict has 
violated certain provisions is notwithstanding a difficult 
task. It requires identifying, gathering evidence of, and 
proving the violations are a fact finding mission that often 
do not see the light of  the day, argued (Weller et al. 2015). 
More challenging is to establish that civilian deaths are 
caused by intentional or deliberate and therefore unlawful 
acts by Russian armed forces. Again, it will be difficult to 
establish that Russia’s actions are not deliberately taken by 
are incidental and not excessive (and therefore potentially 
permitted under the principle of  proportionately).

International Institutions Respond to Russia’s Actions
In addition to financial sanctions imposed bilaterally by 
the United States and numerous other countries, Russia 
is likely to face widespread condemnation and isolation 

in international bodies. It is the opinion of  this article 
that very few governments and law experts will agree that 
Russia’s actions is permissible under international law. 
In line with this development, the Council of  Europe 
suspended Russia’s participation in its Committee of  
Ministers and its Parliamentary Assembly (Strasbourg, 
2022). Meanwhile, the UN Security Council voted on 
a binding resolution condemning the invasion and 
requiring Russia to cease its military actions and withdraw 
from Ukraine. But Russia, as a permanent member of  the 
Security Council, vetoed the resolution.
On Sunday, the Security Council voted 11-1 (with Russia 
opposed and three members abstaining) on a nonbinding 
resolution calling on the UN General Assembly to hold 
an emergency special session to consider Russia’s actions. 
This Security Council resolution comports with UN 
General Assembly Resolution 377(V) of  1950 (the so-
called Uniting for Peace resolution), which resolved that 
in the case of  a deadlock in the Security Council, the 
General Assembly shall “consider the matter immediately 
with a view to making recommendations to members 
for collective measures.” The General Assembly is likely 
to overwhelmingly adopt a resolution opposing Russia’s 
actions as a threat to Ukraine’s territorial integrity, 
sovereignty, and political independence, as it did in 2014 
after Russia annexed Crimea. The General Assembly 
could also mandate a UN investigation of  Russia’s actions, 
urge member states to impose sanctions on Russia, or 
recommend that Russia be expelled or suspended from 
certain UN bodies.
In addition, Ukraine also filed another claim against 
Russia in the International Court of  Justice (ICJ) on 
Sunday, alleging that Russia misinterpreted the Genocide 
Convention to justify the invasion of  Ukraine. The 
ICJ is already hearing two claims Ukraine filed in 2017 
– (Ukraine v Russian Federation, 2017) relating to 
Russia’s actions in Crimea and eastern Ukraine. Putin 
and other Russian officials could face an investigation by 
the ICJ for war crimes committed during the invasion. 
Although Russia is not a party to the Rome Statute, which 
established the International Criminal Court (ICC), 
Ukraine has accepted the ICC’s jurisdiction for offenses 
that have occurred on its territory since 2013 (other than 
the crime of  aggression, for which the ICC does not have 
jurisdiction for nonparties).

Legal Responsibility and US Legislative Alternatives
Identifying avenues of  accountability for law of  war 
violations raises complex practical, legal, and jurisdictional 
questions. As discussed in this article that seeks to explain 
the illegality of  Russia’s invasion of  Ukraine, Ukraine 
is pursuing cases against Russia in the International 
Court of  Justice and other international tribunals, but 
constraints on jurisdiction and enforcement may limit 
the cases’ practical impact. Some observers have called 
for the creation of  a new international tribunal with 
broader jurisdiction to address Russia’s actions. Germany 
has reportedly opened investigations into whether the 

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invasion is leading to crimes that can be prosecuted 
under their respective domestic laws. (Bojan, 2022). The 
United States has a war crimes statute but it does not 
provide universal jurisdiction, and the Department of  
Justice has not prosecuted or convicted anyone for a war 
crimes offense under this statute. Some commentators 
have called for Congress to amend this statute to provide 
broader jurisdiction. Others have proposed amending the 
Foreign Sovereign Immunities Act to allow civil lawsuits 
against Russia and attachment of  Russian assets (Scott & 
Chimene, 2022).
At the United Nations, more than 100 sovereign nations 
voted for General Assembly Resolution ES-11/L.1, which 
“deplores” the incursion as an illegal use of  force, but 
this resolution is nonbinding. Russia vetoed a different 
resolution at the U.N. Security Council that would have 
contained an obligatory “verdict” that Russia must stop 
using force and unreservedly pull out from Ukraine 
without delay. As examined in this paper, human rights and 
humanitarian institutions may possibly keep on addressing 
facets of  the Russian offensive; on the other hand; the U.N 
body has the means to pressure or persuade the Russian 
Federation to end its acts of  aggression in Ukraine.  
The legislative body could reflect on legislation mandating 
the United States’ Foreign Claims Settlement Commission 
to allow claims arising from Russia’s attack and its 
probable nationalization of  American-owned property 
in Russia. Discussed in this article, the Foreign Claims 
Settlement Commission is a quasi-judicial, independent 
agency within the Department of  Justice that adjudicates 
claims of  U.S. nationals harmed by foreign governments. 
Its authority is limited to country-specific programs 
created through legislation or by referral from the U.S. 
Department of  State. 
The United States, the United Kingdom, the European 
Union, and their allied countries have imposed sanctions 
on Russia to hold it responsible for attacking Ukraine. 
Some members of  the United States Congress have 
advocated for expanding those sanctions. Members 
have also introduced legislation that would authorize the 
President to seize and liquidate Russian oligarchs’ assets 
in the United States. Chapter 35, section 1701 of  the U.S 
(International Emergency Economic Powers Act, 1977) 
allows the President to block transactions and “freeze” 
assets, but the President’s authority to vest (i.e., take title 
to) those assets is limited to circumstances when the 
United States has been attacked or is engaged in hostilities.

CONCLUSION
The Russian references to “genocide” in Eastern Ukraine 
to justify its intervention cannot be substantiated and offer 
no justification for military action under international law. 
Instead Russia has violated the jus ad bellum regime, the 
conditions under which States may resort to war or to the 
use of  armed force in general. Its actions constitute an act 
of  aggression breaching the cornerstone legal principle 
of  the prohibition of  use of  force, laid down in article 2 
(4) of  the UN Charter. 

It is the opinion of  this article that apart from the jus ad 
bellum legal framework, Russia’s invasion raises concerns 
with respect to the application of  jus in bello - the body 
of  international law related to the conduct of  hostilities 
and the means and methods of  warfare. As the military 
operations are still ongoing, it can only be reiterated at 
this stage that violations of  this body of  law may trigger 
war crimes accusations, whereas the particular provisions 
of  the IV Geneva Convention on belligerent occupation 
will be of  high relevance. 
Finally, the displacement of  many civilians who may ask 
for protection in other countries will activate international 
and regional refugee law. The dramatic events of  the 
last few months have fundamentally challenge the basic 
premises of  the international legal order as we know it; 
the normative consequences of  this military operation 
remain to be seen.

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