War and Pieces: Is war ever legitimate?

Earlier this year, Russia invaded Ukraine, to the chagrin of much of the international community. This not only shocked onlookers, but also proved that we hadn’t  moved past such brute displays of power in the 21st century. Thus the question of what makes for a ‘legitimate’ invasion and whether there is even such a thing, isn’t relegated to history textbooks but rather of extreme relevance today. Legitimacy can be viewed as a condition of legality, but also one in which sound logic is met. Under international law, specifically article 2.4 of the UN Charter, all UN member states made the pledge to not use force “against the territorial integrity or political independence of any state.” (UN, 1945)

There are specific instance wherein a country can legally infringe on another’s borders. These include in scenarios where such a move can be deemed to be ‘self defence’ or when the UN’s security council allows for an invasion. The UN Security Council may choose to do so for a variety of reasons, oftentimes it is when the people of a nation are under threat from its leaders. Such was the case when the UNSC authorised the use of force in 2011 in Libya. Amidst the uprising of the Arab Spring, a series of movements in the Middle East with people calling for rule by democracy, peaceful protests spring up in Libya calling for the downfall of Colonel Muammar Al-Qadhafi. Qadhafi responded in despotic fashion, by implementing a violent crackdown upon his own people. In response the UNSC called upon the international community to take “all necessary measures” to protect the people of Libya and ultimately thus gave its stamp of approval to a coalition of western countries to invade in 2011. (UN, 2011) As such the distinction between a legitimate invasion and an illegitimate one appears to be clear in international law and this question appears to hold no meaningful room for contention. Yet upon deeper inspection it becomes evident that in practice establishing legitimacy is a lot more difficult due to various complexities that can muddy the waters.

One way that the state actors have looked to label their invasion as legitimate is through establishing an argument for self defence. Under Article 51 self defence may be triggered in the instance of an “armed attack” on a nation state. This is a reflection of the post WW2 climate in which the UN Charter was drafted, wherein the largest source of a threat to peace was the individual decision by one state to attack another. It has been noted that the “armed attack” required to trigger self defence is disproportionate to Article 2, wherein it is use of “force” that is sanctioned or even the UNSC’s own charter where is prompted to take action on conditions as vague as threats to peace or signs of aggression. It is evident thus how some states may attempt to utilise all metrics available to them, alongside their interpretations of what constitutes an “armed attack”, to argue self defence.

There is much speculation for the real reason behind Russia’s 2022 invasion of Ukraine for example. Some argue it’s a mere ego trip for the ageing president, others say that it is part of a delusional bid to reclaim a lost Russian empire. Yet, Russia itself calls upon article 51 and self defence. This is simply one part of its multi pronged approach to justify its invasion to the international community. In Mr. Putin’s rhetoric on the day of the invasion he made a case for self defence by establishing the threat that the expansion of NATO and the presence of weapons in Ukraine pose to the Russian Federation. In a translation of the speech we can see that Putin calls upon a “real threat” to the “very existence” of Russia. (Spectator, 2022) The trouble with such regimes is the extent to which the international community can rely upon them for truthfulness, as such much of these claims are left unproved.

Yet the Russian president’s justification did not end there, he has claimed that Ukraine has either committed or planned to commit an armed attack on two regions of Ukraine, Donetsk and Luhansk. Just before the invasion Russia recognised the two regions as independent states and thus has attempted to use such a recognition as a caveat for its invasion of Ukraine. (BBC, 2022) Within these regions Russia has made the case for a despotic Nazi-like Ukrainian regime that commits genocide against the Russians that reside there. As such the Russians could make a case for collective self defence in the Ukrainian invasion. Yet this fails to acknowledge several international precedents. Neither Donetsk nor Luhansk are actually recognised as UN member states and their secession from Ukraine isn’t internationally recognised. In a similar fashion it can be argued that even if the claim of genocide had any sound backing, which it largely doesn’t as the Russian Federation has failed to provide much in the way of evidence, there is no legal international precedent for an invasion on the basis of genocide. Under both the UN Charter and the Genocide Convention, there is no warrant for international intervention without a call to action by the UNSC. (Bellinger, 2022) A final argument posed by Russia engages in ‘whataboutism’ to point out past instances of breaches of international law by the western world. These include cases of military intervention from Serbia to Iraq. Whereas two illegal invasions don’t make legitimacy, it true that drawing attention to purported instance of western hypocrisy does damage any moral case against regimes such as the Russian.

Whilst it can unequivocally be argued that Russia’s 2022 invasion of Ukraine is not legitimate under international law, this is a relative easy admission to make. The plight of the Ukrainian people has been well documented, as has the unscrupulous nature of the Russian regime at large. Yet there are other instance where countries attempt to use arguments of self defence and even the UNSC to justify an invasion where the case isn’t as easy to call.

The case of Iraq is infamous as the legal arguments utilised by the western allies has been called into question countless times. From the perspective of the UK, the Iraq war marked the end of a popular PM’s reign and earned the government the label of ‘war criminals’ for their decision making in 2003. Unlike past instances the Blair regime didn’t argue for self defence, rather it attempted to utilise past UNSC resolutions to justify its actions in 2003. The UNSC had allowed for military action against Iraq in the early 1990s in response to Iraq’s invasion of Kuwait. This set a precedent for disarmament, with resolution 687 giving the international community power to re-engage should Iraq re-invade Kuwait. (UN, 1991)

The UK’s attorney general at the time, Lord Goldsmith, made the case that the powers vested by the UNSC to the international community in the 1990s could be revived in 2003 to justify a British Invasion of Iraq. Needless to say the security council disagreed, only 4 members out of the 15 countries that sat in the UNSC at the time agreed that military action on Iraq was needed. As such many have made the case that it was largely untenable to argue that the UNSC supported such an invasion. Yet the way that the UK saw it, the situation of ‘legitimacy’ didn’t rest upon the word of the law but rather whether prosecution was possible. The precedent set by international trials of war criminals were certainly a daunting prospect, however it was unlikely that the British prime minister would be dragged out to the ICC or that the UK would be prosecuted by the ICJ. (Morrison, 2015)

Holding one of the five permanent position on the UNSC also ensures that the UK had veto powers, as such the United Nation’s only enforcing body couldn’t even condemn the UK’s decision to invade, let alone take disciplinary action. It was evident thus that the UK had a version of international immunity that is not afforded to most countries that allowed it to join the US in its invasion if Iraq. The British government did attempt thus initially to gain the UNSC renewed approval for such an invasion as recognition for Iraq’s supposed weapons of mass destruction. Yet when that failed, the UK turned again to the resolution 687 and renewed its conviction that the invasion of Iraq was supported by the UNSC despite its explicit refusal to vote in favour of it. Ultimately the UK’s invasion of Iraq was ‘legitimate’ in the sense that through the UK’s diplomatic dominance and with the support of a shaky legal argument, the UK was able to avoid explicit prosecution for its actions. Yet that does call to question whether it would ever be possible for such countries as the UK and the US to be ‘illegitimate’ in their invasions if they can never realistically be prosecuted.

The US for example has a dominant history of both reluctant and eager intervention in states around the world. Much of Putin’s speech on global hypocrisy referenced the US in some form or another. A case in point is its invasion of Afghanistan. Many still view September 11th 2001 as a watershed moment for US foreign policy. 9/11 was harrowing feat for many in the US and it triggered a momentous response from the American government as president Bush declared a ‘war on terror’. Once the US determined the terrorist organisation Al-Qaeda was responsible for the attack and that it had a network supported by the Taliban in Afghanistan, it soon mobilised. Less than a month after the attack on the twin towers, NATO, led by the US, invaded Afghanistan.

The Bush administration alongside the UK and other NATO allies also made the case for self defence under article 51. The lack of a UNSC mandate for the invasion ensured that they had to report to the UN their reasoning for breaching article 2. They thus called upon collective self defence, viewing the 9/11 attack as use of armed force and viewing the “Taliban government of Afghanistan” as an “accomplice” to the attack. (Smith and Thorp, 2010). Using that justification it viewed the state of Afghanistan as responsible for the terrorist attack on the US and thus an invasion was needed to protect from any further attacks in the future. Many people have taken concern with this argument, some have said that 9/11 was a criminal case rather than an armed attack, others have argued that the US was not at imminent threat of another attack. Whilst the military campaign has long been lamented as the ‘forever war’ in American press and the damage inflicted upon Afghanistan has been recognised, there is not much questioning of the legitimacy of the invasion. A lack of scrutiny on behalf of the international community has ensured that the US invasion of Afghanistan, similar to that of Iraq, is deemed ‘legitimate’ only by a lack of coherent opposition.

Nevertheless, all this discussion of self defence fails to address an important factor: that of territorial disputes. Whilst an invasion is defined as an infringement upon another country, it is harder to ascertain legitimacy when the borders between countries are undecided. These include several situations such as conflict between India and Pakistan over contested regions such as Jammu Kashmir and the conflict in between Israel and Palestine over regions such as the West Bank or the Gaza Strip. It is hard to ascertain whether the 1947 or 1965 war in between India and Pakistan over the Kashmir region was sparked by ‘legitimate’ or ‘illegitimate’ invasions, for example, because there is no pre-defined border. (CFR, 2022) Such dilemmas are made worse in cases such as that of China and Taiwan.

In looking ahead, we can evaluate the potential future invasion of Taiwan by China and consider its case of legitimacy. It has been acknowledged that under Xi Jinping China has been territorially confrontational with its neighbours, however they have been protected under international law by virtue of their status as independent states. As such disputes over areas such as the South China Sea are yet to see much belligerence. However, increasingly the rhetoric coming from the Chinese establishment is that of jingoistic claim to Taiwan which raises concern about its independence. Not many countries recognise Taiwan as a state because of diplomatic arm twisting on behalf of China, which has considerable economic heft that it can hold over the heads of other countries. Despite the Taiwanese government claiming independence only 13 countries and the Vatican City recognise its sovereignty. (World Population Review, 2022) This means that an invasion of Taiwan by the People’s Republic of China wouldn’t necessarily be a breach of article 2 of the UN Charter. Tibet’s past experience with China makes it evident that it would be willing to take action to suppress separatism. Under the current system thus, China’s invasion of Taiwan would not only be legitimate but any interference in support of Taiwan by other states would in fact be seen under article 2 as an invasion of China. This is hardly the desired situation for an international order that champions democracy.

It is evident that in several cases an invasion is deemed legitimate due to legal gymnastics, established interests and diplomatic heft. If  the legal system allows entrenched powers to feign legitimacy no matter their actions, such that British and American courts can continue to claim legality for their invasions, and it fails to stand up for the vulnerable, such as Taiwan then perhaps the label of ‘legitimate’ is insufficient. International approval for war shouldn’t be up for sale and it shouldn’t be arm twisted for, it should be a genuine recognition. Until there is systemic change to the global legal structure, we should be asking questions beyond legitimacy towards humanity and morality.