BOOK-ending Ukrainian President Zelensky’s much-lauded visit to the UK on Wednesday February 8, Parliament held a pair of debates focusing on the war between Russia and Ukraine. In the House of Commons, a debate on January 19 called by senior backbencher Sir Bernard Jenkin centred on Russian grand strategy towards Ukraine, and towards Europe and the West more generally. On February 9, the House of Lords had a broad discussion on the situation in Ukraine itself.
In conformity with the rhetoric approved for use in any discussion of the Russian invasion of Ukraine, MPs and peers in both debates made frequent allusion to the inviolability of ‘the international rules-based system’. One MP alleged that ‘Putin’s Russia has purposely sought to overturn current rules-based relations’, while another argued that Russia’s actions over recent years have ‘breached the boundaries of international law’ and ‘fractured the global rules-based order’. It was asserted that ‘Russia’s action contravenes the United Nations Charter, the OSCE Helsinki Final Act, the Paris Charter and the Budapest accord, all by design’, and that in response it was imperative that the West must ensure that the war in Ukraine was concluded ‘on the terms of the international rules-based system’.
So strong were the public expressions of attachment in both houses to the rules-based system of international law that one peer asserted that ‘there should be no impunity for those who break those rules or seek to circumvent them’.
The question of whether Russia’s actions in Ukraine breach international law is somewhat complex, and has been the subject of analysis in a multitude of legal blogs and other publications. Rather than add my twopenny’s worth to that debate, I think it would be more instructive to examine the frequent political expressions of support for the ‘international rules-based system’ against the backdrop of the actions of the UK and other Western countries in the recent past.
The ideal comparator is that of Yugoslavia in the late 1990s. At the end of that decade Yugoslavia’s territory had shrunk to encompass only the republics of Serbia and Montenegro, while Serbia had a substantial Albanian minority concentrated in the province of Kosovo. By 1999 tensions were escalating in that province, due to both inter-ethnic hostility and to the Albanian population which formed a majority there seeking increased autonomy from the Serb-dominated government under President Slobodan Milošević in Belgrade. A paramilitary organisation, the Kosovo Liberation Army (KLA), began carrying out terrorist attacks against Yugoslav security forces, leading to a counter-insurgency operation by the Yugoslav military. It was soon reported that this operation was resulting in widespread ethnic cleansing and killings of Kosovo Albanian civilians, a development which caught the attention of Western leaders such as US President Bill Clinton and Britain’s Prime Minister Tony Blair.
At this point, we may notice some broad factual similarities with Ukraine in the years leading up to February 2022. Both situations emerged in countries containing a substantial minority group concentrated in one area. Both saw that minority group demanding greater autonomy from a central government which it felt did not fully share its interests. Both saw this demand for greater autonomy being met with a violent reaction from the forces of the state.
In the Yugoslav example, faced with escalating violence in Kosovo Western leaders demanded that the Yugoslav Government in Belgrade sign up to the Rambouillet Accords, an agreement which would have provided for 30,000 Nato peacekeeping troops to be stationed in Kosovo; Nato forces to enjoy unhindered right of passage through the entirety of Yugoslavia including the right to use ports, railways, and airports free of cost, and Nato forces to have complete immunity from Yugoslav civil and criminal law. In other words, Western leaders reacted to allegations of violence against the Albanian minority in Yugoslavia by demanding it accept full military occupation by Nato, a demand considerably more far-reaching than the demands made of Kiev by the Russian Government in early 2022.
The price set for refusal was the launching of Nato air strikes, but despite that the Yugoslav government initially refused the Western demands. Thus, with the enthusiastic support of a jingoistic mainstream media (the Sun’s call to ‘Clobba Slobba’ being a low point) Nato’s bombing campaign began, lasting from March 24 to June 10, 1999. The present Serbian government estimates that at least 2,500 people died and 12,500 were injured, while the overall civilian death toll was put at around 500 by Human Rights Watch. Controversial moments included the strike on a railway bridge in Grdelica, which hit a civilian passenger train killing 20, and the bombing of the Radio Television of Serbia headquarters which killed 16 civilian employees and was called a war crime by Amnesty International.
Regardless of this collateral damage, the bombing campaign by Nato continued until the government in Belgrade was brought to heel, eventually conceding an agreement that led to the withdrawal of all Yugoslav armed forces from Kosovo and their replacement by a Nato peacekeeping force. Though the province initially remained part of Serbia, Kosovo unilaterally declared independence from Serbia in February 2008, and its independence has now been recognised by the US and most other European countries.
One would be justified in asking how consistent this all was with the strictures of that revered international rules-based system, and the short answer is that it arguably wasn’t. While the agreement which concluded the bombing campaign was subject to a UN Security Council resolution authorising the deployment of an international civilian and military presence in Kosovo, the bombing campaign itself was launched without the legal cover of any such resolution expressly authorising the use of force. Given that Article 2 of the UN Charter prohibits the use of force by a member state unless this has been authorised by a decision of the Security Council, or is being used in self-defence against an armed attack, the Nato bombing campaign was therefore arguably unlawful, and itself a breach of the rules-based international order. Indeed it was criticised as such by various non-Nato states, including political leaders in India and Israel, while Russia called it an act of aggression.
The justification used by Western leaders was that the operation was a humanitarian intervention to protect the minority Albanian population within Yugoslavia. As Prime Minister Tony Blair told the House of Commons the day before the bombing campaign started, military action was being undertaken ‘primarily to avert what would otherwise be a humanitarian disaster in Kosovo’, and despite the lack of a Security Council resolution expressly authorising the use of force, ‘the plain fact of the matter is that we have to act now to avert the humanitarian disaster that I have set out’. This justification was repeated by Deputy Prime Minister John Prescott once the bombing campaign had started, when he asserted in the House of Commons that ‘We act within that international law and the use of force is justified under that law to prevent an overwhelming humanitarian disaster.’ In any event, the maintenance of the international rules-based order seemed to be a fairly low priority in the House of Commons at this time, with one MP asking ‘what consolation it would be to a Kosovan running away from being killed to be able to say that the British Government did not act, but were upholding a precise, legalistic definition of international law?’
However, the problem was that humanitarian intervention is not recognised as a justification for military action under the UN Charter, and is rejected by a majority of UN member states. Indeed, in 2000 the 133 states forming the ‘Group of 77 + China’ concluded their meeting in Cuba by explicitly rejecting the principle of humanitarian intervention as a justification for military action, arguing that this position had ‘no legal basis in the United Nations Charter or in the general principles of international law’. Despite this, the principle of humanitarian intervention is still relied upon as a justification for military intervention by leading Nato countries, for example to justify the bombing of Libya in 2011, and being the foundation for the UK’s justification of military action against Syria in 2018.
What Nato’s actions over Yugoslavia in 1999 demonstrate is that, despite politicians in the UK and in other Nato member states now demanding rigid, unquestioning adherence by other states such as Russia to the provisions of the international rules-based system, Western governments have given themselves considerable latitude in their interpretation of the rules of that system in the recent past. At that time, when it was Nato member states pushing the boundaries of those rules, the concerns raised by ageing leftists such as Tony Benn regarding Nato military action which was prima facie in breach of those rules were brushed aside by forceful, emotive rhetoric from figures such as Tony Blair, with the implication that such concerns were pedantic at best and heartlessly over-cautious at worst.
Yet now, despite having muddied the waters of international law by relying on humanitarian intervention as a justification for military action against states from Yugoslavia in 1999 to Syria in the 2010s, Nato governments reject that same principle as any sort of justification for Russia’s military action in Ukraine. So we are presented with the spectacle of a political class who condemn Russia in the strongest terms for intervening militarily in Ukraine purportedly in defence of a minority group being violently targeted by the Ukrainian state, but who fully supported a directly comparable intervention in defence of a minority group in Yugoslavia a little over two decades ago.
Therefore, while I am writing this not to defend Russia’s military intervention in Ukraine, or its legality under international law, I cannot help but feel that our political leaders’ impassioned declarations of support for the inviolability of the ‘rules-based international order’ ring extremely hollow. What’s good for the Nato goose is presumably good for the Russian gander, whether we like it or not. Perhaps some of those same voices now lamenting the fracturing of the ‘global rules-based order’ should have been rather more vocal when that fracturing was being carried out by the likes of Mr Blair, Mr Clinton and Mr Bush, rather than by Mr Putin.
