A Year Later: Formal-Legal Framework Around The Impasse Of Russo-Ukrainian War

Russia’s aggression continues unabated 15 months after their initial invasion of Ukraine. On 20 May 2023, Russia’s state-sanctioned media announced the successful seizure of Bakhmut, Ukraine, describing it as an effort to “liberate Artyomovsk”——Bakhmut’s name under the Soviet Union. Despite Ukraine President Volodymyr Zelenskyy’s insistence that defense of Bakhmut continues, Russia’s performance can be pessimistically considered as another evidence of the international community’s weakness to limit Russia President Vladmir Putin’s untiring Napoleon complex.

Since the beginning of the war, the international community, led by Western countries, has shown no hesitation to support Ukraine against Russia. This is again demonstrated in the G7 Hiroshima Summit, held from 19 May 2023 to 21 May 2023, where leaders reiterated their commitment to assist Ukraine. The United States President Joe Biden reassured that “together with the entire G7 we have Ukraine’s back and I promise we’re not going anywhere.” As the largest donor to Ukraine, the United States announced an additional $375 million in military aid during the summit. In total, more than $75 billion in humanitarian, financial, and military support has been provided to Ukraine, according to the Kiel Institute for the World Economy.

German Chancellor Olaf Scholz expressed confidence that this bolstered support sends a clear message to Russia that a prolonged conflict is unlikely to yield further gains. However, the reality is that in spite of the sustained support from the world’s wealthiest democracies——both in rhetoric and material assistance——Russia’s aggression has persisted for over 15 months, leading to an estimated death of 17,000 people, as reported by the United Nations (UN). To examine why the overwhelming opposition to Russia nonetheless yields limited success, this report lays out the inherent dilemmas within the formal-legal international system and offer suggestions for the most viable approach to navigate these dilemmas.

The most straightforward options of multilateral responses are through the UN. In a legal-formal context, international peace and security is under the jurisdiction of the UN Security Council. This is to say that actions sanctioned by the Security Council are regarded as the most authoritative and well-coordinated international responses. However, for the Russo-Ukrainian War, even with peace-enforcement operations——which differ from peacekeeping missions in that they do not necessitate consent from the involved parties, impartiality, or non-confrontational approaches——are impossible to be implemented. This is because a resolution requires approval of at least nine member states of the Security Council, including all five permanent ones, among them Russia.

Russia exercised its veto power on 26 February 2022, effectively blocking a resolution that was to condemn Russia’s invasion of Ukraine. The current meetings of the Security Council are characterized by tension, as Russia finds itself in a defensive position against the rest of the council. For instance, Russia Ambassador Vasily Nebenzya argues that Russia has supplied more than 30 million tons of grain to developing countries under the Black Sea deal, countering allegation made by United States Ambassador Linda Thomas-Greenfield that Russia is using “food as a weapon of war in Ukraine.”

Because direct involvement with Russia is not possible, this report argues for approaching the war by empowering surrounding institutions within the formal-legal context. The UN General Assembly is the second-best organ of the UN to coordinate support. Its strength is that member countries——193 of them——by book have equal representation for none of them have veto power. Instead, resolutions can be passed with a simple majority, which expectedly is not hard to mobilize for support to Ukraine.

Although the General Assembly’s shortcoming is that it lacks authority to mandate peace-enforcement or peacekeeping operations like the Security Council, Resolution 377A (V), “Uniting for Peace,” provides a narrow nonetheless possible window for maneuvering. The resolution serves as a fallback to when the Security Council has evidently failed to maintain international peace and security, granting the General Assembly authority to act, even for recommendations of peace-enforcement-like measures.

As precedence, Resolution 377A (V) was invoked to deploy troops in the Korean War. Under Resolution 377A (V), the Security Council can convene emergency special session (ESS) for the General Assembly to determine solutions. The eleventh emergency special session of the United Nations General Assembly, which commenced on 28 February 2022, addresses the Russo-Ukraine War, including seven passed resolutions. The seven resolutions respectively condemn Russia, demand humanitarian support, suspend Russia’s membership from the UN Human Rights Council, invalidate the Russian-staged referendums in Donetsk, Kherson, Luhansk and Zaporizhzhia oblasts, and request remedy and reparation from Russia.

Michael Ramsden, in his article “Uniting for Peace: The Emergency Special Session on Ukraine” in the Harvard International Law Journal, proposes possible future actions. Through the ESS, the General Assembly could suspend the credentials of Russia’s representative in the General Assembly, although full suspension of Russia’s membership is impossible without the Security Council’s request. The country would nonetheless be isolated from the international arena, a measure which has proven to be successful against South Africa in apartheid. In addition, the General Assembly could enhance judicial and quasi-judicial institutions on holding violation of international law accountable.

Most notably, the International Criminal Court (ICC), with jurisdiction over genocide, crimes against humanity, and war crimes, has issued arrest warrants for Vladimir Putin and Maria Lvova-Belova for their involvement in war crimes and the “illegal transfer” of children. The General Assembly could coordinate resources for the investigations for the prosecutions. At the same time, Russia is under investigations for violation of human rights from the Human Rights Council, which the General Assembly could also facilitate. In turn, the decisions of these judicial institutions can inform the General Assembly on the formal-legal procedures to further pursue, therefore mutually reinforcing each other.

Russia, which has shown to be unyielding against international pressure in the past 15 months, is not expected to easily relent consequent to the aforementioned suggestions. Nonetheless, it is important to note that the objectives of the suggestions are not solely aimed to pacify Russia, but to establish a formal-legal structure with no room for ambiguity and to set a normative environment in the international arena with a unified front against Russia’s actions to restrict the possibilities for other countries to support Russia.

Ukraine-supporting countries are increasingly aware of currently uninvolved countries’ impact. In an event held in Addis Ababa, Ethiopia, Ukraine Foreign Minister Dmytro Kuleba stated that “by being neutral towards Russian aggression against Ukraine, you project neutrality to the violations of borders and mass crimes that may occur very close to you.” This is especially critical as Russia schedules to organize an Africa-Russia summit in July, also as the Wagner Group, a Russian paramilitary organization, also significantly enhance Russia’s ties to various regions of Africa. In short, the established formal-legal and normative environment is set to clearly present the repercussions and dissuade countries undecided on providing support to Russia, thereby weakening Russia’s position, both rhetorically or materialistically, which could potentially shorten the duration of the war.