In this article, we try to see how, relating to maybe the one of the most eye-catching ongoing war, the one fought in the Donbass region of Ukraine (also called the War in Ukraine or War in Eastern Ukraine), the parts of the war, Russia and of course Ukraine each justified their reasons of entering and continuing the conflict. The reason for this approach does not have any political aspect or message, the viable reason of our analysis is the proximity of the authors to the conflict and the easy access to an extended bibliography. We will watch closely how their reasoning of engaging into this war relate and match to a philosophical, international, and an Eastern European (more specifically, Romanian, the reasons being the originating country of the authors and the second one being the vicinity the country has with the conflict) view of a just war. Additionally, we will try as objectively as possible to compare those reasons to a benchmark of just motives to go and continue a war which we have analysed. Moreover, we will try to emphasize also the adjacent problems and implications this comparison might predict for the future.

Preparing the ground

In an attempt to summarise the events presented around the globe through news and reports (Chervonenko, 2015), we will note that after the overthrow of the then government in Ukraine, in February 2014, serious problems began. In March 2014, in major cities in the East of Ukraine some pro-Russian separatist strikes started, which immediately escalated into armed terrorist attacks with the result of seizing of administrative buildings and police offices. The Ukrainian government responded with an anti-terrorist operation and the whole situation turned into a real military conflict. The Russian Federation is believed by the international community not only to take an active part in seizing the cities of the Donetsk region, but also to supply the separatists with weapons. It is highly reported that the Federal Security Service of the Russian Federation, the Russian Armed Forces and armed mercenaries carried out attacks on local government and media buildings in Donbas (Censor.net, 2017). All in all, it resulted in an invasion of the territory of Ukraine made by regular units of the Armed Forces of the Russian Federation (Mashovets, 2014). In the course of the conflict these territories were proclaimed Donetsk and Luhansk People’s Republics in Donbas, but they are still not recognized by the international community. Military actions are still continuing there (6 April 2014 – present; 2 years, 9 months and counting – Censor.net, 2017) and despite numerous Minsk agreements, the conflict has not been stopped.

Developing the benchmark, outlining the concepts

From a philosophical perspective, among the voices who have espoused some form of a just war philosophy, the views of St. Thomas Aquinas and Hugo Grotius can be seen as the most influential and relevant for this paper. In Saint Thomas Aquinas’ works were put down the origins of the just war theory - the most systematic exposition of the traditional just war theory as discussed in modern universities was outlined in the Summa Theologicae (Internet Encyclopedia of Philoshopy, 2017). Aquinas’ thoughts became model for the towering figure in philosophy, political theory and law, Hugo Grotius, who in turn had a paramount concern towards the normative status of war (Stanford Encyclopedia of Philosophy, 2017).

St. Thomas Aquinas narrowed down the problem of justifying a war to three main points. He states the first just reason to wage war for a state is when it has authority to go to war, the second being when the state had a just cause – wars for fighting wrongs, to restore what has been unjustly taken away. Lastly, when the warring party goes to war not with the passions of revenge, but in the name of restoring peace (Berkowitz, 2012).

Similarly, Grotius, the founder of modern legalist approaches to justifying war, also understands in his De jure belli ac pacis (1968) that by the law of nature, he argues, war is simply an extension of the basic right of every animal to defend itself. He writes and states that it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms. And not only in nature, but also through history and the laws of nations Grotius argues that war is not necessarily to be condemned. Rather, he believed the law of nations allows us to repel violence and injury in order to protect the people.

When Grotius turns to the actual “just causes” that make a war a just war, he highly relies on the proportionality principle, as in his vision, the war does not have to appear excessive in relation with the offence or the prejudice. Hence, he cites the classification of just terms belonging to the authors before him: defence, recovery of the unfairly lost goods and sanction administration.

To the question “when is it justifiable to go to war?”, the most relevant international statement is the modern condemnation of war found in Article 2, §4 of the United Nations Charter which stipulates that: “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”. The reference to the Purpose of the United Nations is illuminated by Article 1, §1 of the UN Charter, which proclaims that the United Nations exists “to maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace […]”. War, in the light of the UN Charter, is to be suppressed. War is banned, with the single exception of self-defence. All war is imagined as a crime of aggression, and self-defence against the crime of aggression along is widely accepted as the single paradigmatic instance of a just war.

If we are to search through the Eastern European doctrine, the Romanian Valentin Constantin (2010, p. 424-429) notes that judicially, there are two relevant types of justified wars. The first one is the one in which force is utilized for protecting the nationals that are found on the territory of another state. The only problem that arises is that this type of intervention using force is contested on the grounds that it can constitute the source of politically motivated abuses. Anyway, following the way the UN’s competences are organized and taking into consideration the instruments it has at its disposal, nobody could state that the customary right of the states of protecting (self-help) has been erased. The second is the authorized war, the only war whose justification is undoubted is the one which is authorized by the Security Council of the UN. The problem here though, says Constantin, would be the occurrence of an ex post facto authorization and implicit authorization.

Summarizing and bringing to common denominators, we agree that the resulting prevalent concepts to relate to when justifying waging a war could be: 1 – authorization; 2 – self-help; 3 – self-defence; 4 – just cause/restoring peace.

The case study. Filtering the perspectives

Going further on, we will firstly take into analysing the justification of Ukraine related to how the war started and still continues these days, followed by the Russian one.

As about military actions conducted by Ukraine, things are pretty simple. Ukrainian troops are fighting on its territory (so fully justified, according to the above-mentioned concepts), having the right to protect it from aggression by a foreign state. Besides this right being enshrined, in particular, in Art. 51 of the Charter of the UN, the military response of Ukraine also falls under our justified reason for conducting and, in this case, also continuing a war – it is matching our third (self-defence) and, to an extensive reach, the fourth just war concept (it can be argued that Ukraine tries to restore peace on its territory).

Proceeding in analysing how the Russian Federation justifies military actions on the territory of Ukraine, we note that the Russian government claims that it protects the population in Donbass, because it is threatened by a new “Russophobic”, “nationalist” Ukrainian government. It would seem that this reason could fall under one of the four justified concepts when starting a war – the self-help. Even so, it might seem that Russia would have no grounds for its implementation because the population in the East of Ukraine has not been threatened by new Ukrainian government, there is no evidence of the need for such a protection (Kuzio, 2016), there have been no credible reports of threats to the Russian-descent or Russian-speaking-population (Eitze, Gleichmann, 2014). This way, this reasoning should be dismissed.

The Government of the Russian Federation also stated that they started the invasion at the request of the then President of Ukraine, Viktor Yanukovych (which would make the Russian intervention an authorized one). Even so, according to the Constitution of Ukraine the decision on the admission of the armed forces of another state may be adopted only by the Parliament, not by the President. Not only this, but there is no United Nations Security Council Resolutions that would allow/authorise the Russian intervention (United Nations Security Council, 2017). It would seem this way, that searching for a match in our just war concepts, the first one – authorisation (of any kind) – does not match in this instance.

As we can see, the self-defence reason is (obviously) missing from the Russian justification. However, what is left to reflect on is if the last concept – just cause/restoring peace – could be regarded, in the future, as a just reason for the Russian intervention. As one could only suppose (but not argue legally) that Russia has intervened in the Ukrainian territory in the hopes of stabilising the situation, we intended to let this issue be analysed in further studies when the development and results of this situation would be more clearly analysed from this point of view.

Conclusion

To conclude, alongside suggesting the reflection upon the benchmark and the above analysis, we additionally recommend reflecting on the probability of the occurrence of an implicit authorization of the Russian military intervention in Ukraine. Furthermore, attention could be paid not only to the fact that the actions of the Russian Federation are an explicit violation of all ten principles of international law that are its basis – it was stated they are clearly violating the principles of inviolability of borders, territorial integrity, refrain from the threat or use of force, and the principle of respect for human rights (Zadorozhniy, 2015) – but also to the UN and OSCE reports stating in human rights violations, intimidation and violence (Eitze, Gleichmann, 2014). All these only resulted in the “alarming deterioration” in human rights in territory held by insurgents affiliated with the Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR) (BBC, 2014).

 

By Olha Romanyshyn and Cătălin Pop

 

This article has been originally published in issue 5.1 of the magazine, which can be found here. All references used can be found at the end of that issue.

 


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