Ukraine, “war” versus “special military operation”: why words matter in international law

24/08/2022
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Alexey Furman / Getty Images Europe / Getty Images via AFP

August 24, 2022. Six months after the beginning of a full-scale offensive against Ukraine, the Russian authorities continue calling the Russian-Ukrainian war a "special military operation". The International Federation for Human Rights (FIDH) explains why it is not legally appropriate to call the international armed conflict taking place in Ukraine a “special military operation”.

August 24, 2022, marks the 31st anniversary of Ukraine’s independence and the founding of the modern state of Ukraine. This year, the date coincides with another deplorable milestone - six months since the escalation of the Russian-Ukrainian war which commenced in 2014. Since February 24, 2022, the beginning of a full-scale offensive against Ukraine, the Russian authorities insist on calling it a “special military operation" (“SMO”). Regardless of its internal qualification, Russia’s attack on Ukraine constitutes an act of aggression and an ongoing violation of international law. Six months after the February 24 aggression, FIDH explains why it is not legally appropriate to call the international armed conflict taking place in Ukraine a “SMO”.

You don’t need to declare a war to be at war

The existence of an armed conflict is established based on facts, irrespective of its internal qualification or the declaration of war by one of the parties. On February 24, 2022, Russian authorities launched an armed attack on major Ukrainian cities, including the capital Kyiv, Kharkiv, Odessa, Mariupol, and Kramatorsk, with ballistic cruise missiles and multiple rocket launchers reportedly used in the attacks. During the past six months, over 13.400 civilians were injured or killed. In addition, over 6.6 million Ukrainians sought refuge in Europe, while another 6.6 million people are internally displaced within Ukraine. FIDH’s member organizations documented countless instances of international crimes being committed by Russian soldiers during the past six months, including the killing of civilians, torture, sexual and gender-based crimes and forced displacement.

The invasion of Ukraine by Russian troops undoubtedly constitutes an unlawful use of force under the United Nations (“UN”) Charter and an aggression against Ukraine, as recognised by the UN General Assembly in its Resolution on March 2, 2022. Attempts by the Russian authorities to justify the aggression on Ukraine in terms of international law are both factually and legally incorrect. In a televised address on February 24, 2022, Russian President Vladimir Putin specifically referred to the right to self-defense in Article 51 of the UN Charter, the treaties of mutual assistance with the so-called Donetsk and Luhansk People’s Republics ("DPR"/"LPR"), as well as the "demobilisation" and "denazification" of Ukraine.

Legally, neither NATO’s "enlargement" nor any of Ukraine’s actions constitute an armed attack against the Russian Federation. Particularly, Article 51 does not recognize a right to preemptive self-defense. Furthermore, the invasion of Ukraine cannot be justified as an act of collective self-defense in support of the "DPR" and "LPR", as the attack must be carried out against a UN member state. However, the "DPR" and "LPR", despite their recognition as states by Russia three days before the attack on Ukraine, are neither states under international law, nor members of the UN.

Additionally, under the 1949 Geneva Conventions, governing the application of international humanitarian law, an international armed conflict exists when one state party to the Conventions uses armed force against another state, "even if the state of war is not recognised by one of them". Therefore, as a result of Russia’s invasion of Ukraine, there is currently, legally speaking, a classic international armed conflict between the two countries, regardless of its labeling within Russia. In non-legal speak, it is as “war” as it gets.

When calling a war a "war" leads to prison

On 21 July, the General Prosecutor’s Office of Moscow’s Tverskoy District Court explained, for the first time, the de facto ban on the use of the word "war" in Russia. In the case of krasnews.com, a news portal blocked by Roskomnadzor, the Russian media regulator, in March 2022, the prosecutor’s office stated that "the misrepresentation of the essence of the ongoing military operation with the simultaneous use of the term ’war’ represents an increased public significance, since the Russian Federation’s participation in full-scale military operations would affect a wide range of public interests, both social and economic”. The term "SMO" is a euphemism to give the illusion of a legitimate, justified and necessary measure of a limited – both in time and intensity – nature, i.e. something less severe than an armed conflict or a war.

The systematic crackdown on journalists and protesters for using the word "war" began immediately after the announcement of the so-called "SMO" and Russia’s re-invasion of Ukraine on 24 February. It includes the March 4 adoption of laws prohibiting “fake news” about the “SMO” and any discrediting of Russia’s armed forces, subsequent arbitrary arrests at anti-war protests and administrative and criminal prosecution of anti-war activists, and the ban on news portals and social media disseminating truthful information about the war. Under the new amendment to Article 207.3 of the Russian Criminal Code, which prohibits the dissemination of "knowingly false information" about the use of the Russian army,
75 criminal cases have been initiated since the beginning of the war. In July, a Moscow court sentenced municipal deputy Alexei Gorinov to seven years in prison for calling the "SMO" a war. At the same time, more than 3,300 protocols were drawn up under Article 20.3.3 of the Russian Code of Administrative Offenses for "discrediting" the Russian army, including for the slogan "no to war".

FIDH in action in Ukraine

FIDH stands in solidarity with its two member organizations in Ukraine - the Kharkiv Human Rights Protection Group (“KHRPG”) and the Center for Civil Liberties (“CCL”) which have been at the forefront of the struggle for justice, peace and democracy in Ukraine since the beginning of the international armed conflict, particularly over the last six months.

Despite ongoing legal and military battles, our member organizations have been documenting international humanitarian law and human rights violations committed by the Russian military in Ukraine. Since the beginning of the war, FIDH has been engaged in supporting the work of its partners on the ground, filing several Article 15 communications with the International Criminal Court (“ICC”) and advocating for the opening of an ICC investigation into the international crimes committed in Ukraine.

FIDH continues to gather information on ongoing war crimes and crimes against humanity to convey an important message: no matter how the Russian authorities justify the war or what they label it, those responsible for grave violations of international law in Ukraine will not escape justice.

Learn more: definitions and background

The term "war" in international law. As a legal term, the word "war" was actively used in international conventions until the second half of the twentieth century: for example, under the 1907 Hague Conventions, international humanitarian law was only applicable in time of “war”. However, even then, a clear definition of "war" did not exist in international law.
In contemporary international law, the term "war" has virtually lost its independent legal meaning, falling under the concepts of international or non-international (internal) armed conflicts introduced by the 1949 Geneva Conventions.

Under the Geneva Conventions and their interpretation by the International Committee of the Red Cross, an international armed conflict exists when one state party to the Conventions uses armed force against another state, "even if the state of war is not recognised by one of them". The mere malicious crossing of a state boundary by the army of another state, even without the use of force, will suffice. A non-international (internal) armed conflict, by contrast, is characterized by an armed group, or groups, fighting against the state or against each other, if a certain level of organization of such groups and a certain intensity of the military operations is reached.

War of aggression . Efforts of states to limit the right to wage war finally replaced the idea of war as an expression of state sovereignty and a legitimate means of achieving political objectives. Thus, in the Briand-Kellogg Pact 1928, states outlawed war as an instrument of foreign policy.

Article 2(4) of the UN Charter prohibits the use of armed force against the territorial integrity or political independence of other states. The UN Charter recognises only two exceptions – individual and collective self-defense in case of an armed attack against a member state under Article 51, as well as measures taken by the UN Security Council under Article 42.

It is particularly noteworthy that the prohibition on the use of force includes the waging of a "war of aggression". This term originated in the 1919 Treaty of Versailles and was later used in the Charter of the International Military Tribunal at Nuremberg after the war waged by Nazi Germany. In 1974, the UN General Assembly adopted Resolution 3314, which contains a definition of aggression. Inter alia, an “act of aggression” is "regardless of a declaration of war, (...) (t)he invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary". The UN General Assembly referred to this document in its March 2, 2022 Resolution condemning Russia’s aggression against Ukraine.

The use of armed force, as with the determination of the existence of an armed conflict, is established on the basis of facts. Although the obligation to declare war or to issue an ultimatum is foreseen in the third Hague Convention of 1907, this rule no longer applies today, as States rarely openly declare war because of the comprehensive prohibition on the use of armed force. Accordingly, the terminology of the UN Charter is deliberately broad, so that states cannot escape responsibility by simply not declaring war. In this context, it is worth emphasizing that the term "SMO" does not exist in international law. Any actions by the Russian army fall under the general rules of international law, i.e., the general prohibition on aggression and prohibition on the use of force.

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