About the Right to Self-Defense Against Ukrainian Aggression

Translated by Ollie Richardson & Angelina Siard



The bill on the reintegration of Donbass, which for the first time at the legislative level cemented Russia as the aggressor country, will be considered in the Verkhovna Rada after approval by the Council for National Security.

As the Ukrainian authorities declare, Ukraine will acquire the right to self-defense and won’t carry any more responsibility for the situation that developed “in the temporarily occupied territories”.

The representative Poroshenko I. Lutsenko emphasized that “this isn’t war, it is self-defense”.

Aggression and self-defense

Perhaps the Ukrainian authorities are simply not aware what aggression and self-defense is according to international law and what legal basis exists in order for the State to resort to self-defense. Does Ukraine have such a right?

Article 51 of the UN Charter provides an inalienable right of the State to use force in the process of executing the right to self-defense in the event of an armed attack.

The definition of aggression is approved by the resolution 3314 (XXIX) of the United Nations General Assembly of December 14th, 1974. Aggression is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”.

Thus, for the announcement of Russia as an aggressor and the appearance of the right to self-defense there is a need to have proof that Russia used armed force against Ukraine. Moreover, talk must be about legally significant proof, and not about “photos from social networks”.

Are there any acts of the International Courts of Justice according to which Russia is officially recognized as an aggressor? No, such acts aren’t available.

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UN International Court of Justice: assistance to insurgents is not an armed attack

In order to understand how international law regulates questions of self-defense, we will look at historical precedents.

For example, we will take the decision of the UN International Court of Justice in the case of “Nicaragua against the US” 1986.

In the 20th century the United States systematically interfered with the civil war on the territory of Nicaragua, carrying out financial and military support to the Nicaraguan contras.

In response Nicaragua appealed to the UN International Court of Justice. The US in the court justified their actions precisely with the “right to self-defense”.

In 1986, the court decided that the United States, supporting the contras, commit acts that violated the international legal obligations of America: not to interfere with the affairs of other State, not to use force against it, not to encroach on its sovereignty, and also not to interfere with peaceful maritime trade. The court also obliged the US to indemnify the Republic of Nicaragua all damage caused to it as a result of the commission of the specified illegal actions. Of course, the US refused to recognize and implement the judgment.

It is something else that is interesting in the decision of the International Court of Justice. Considering America’s appeal for the right to self-defense, the court noted: the legality of self-defense depends on the following circumstances: existence of an armed attack, necessity, and proportionality.

It was also specified that not every violation of the obligation not to use force is an armed attack and, respectively, grants the right to resort to lawful self-defense. In certain cases self-defense with the use of force isn’t allowed, and only referring to other mechanisms is authorised – in particular, to the Security Council and peaceful means of a solution of disputes.

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Lastly, separately the court specified that the concept of an “armed attack” doesn’t include assistance to insurgents in the form of supplying weapons or rendering logistic or other help. Such support must be considered as a threat of the use of force or as the use of force, or as interference in internal or foreign affairs, which is short of an armed attack.

I recall that Ukraine accuses Russia precisely of rendering assistance to the LDPR militia (including supplying weapons). Even if it will be proved that it is like that, then according to the position of the International Court of Justice these actions aren’t an “armed attack”. And, respectively, under the UN Charter, no right for “self-defense” arises for Ukraine.

Thus, the initiative of the Ukrainian authorities about cementing the status of an aggressor and the appeal for the right to self-defense are in full contradiction both with international law and legal practice.

No war, but there is aggression

The representative of Poroshenko refraining from using the term “war” also attracts attention. But after all, Ukraine directly accuses “Russian troops” of attacking. What does any normal country do in this situation? Correct — it declares war on the “aggressor”, or at least imposes martial law and general mobilization, and breaks off diplomatic relations.

But for some reason already for three years Ukraine hasn’t done any of this, millions of its citizens freely visit Russia, between the two countries trade and diplomatic relations remain. In this case it is pertinent to ask the Ukrainian authorities — does “aggression” really exist, and how does it manifest itself? And what will the latest ridiculous law on an “aggressor” give to Ukraine if the basis for self-defense are absent?

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However, the Ukrainian authorities don’t even hide that they don’t want to impose martial law in order to further obtain IMF credits and other handouts from the West.

The Ukrainian authorities are obliged to manoeuvre in order to calm the homegrown “genuine patriots” who don’t understand why the media and authorities speak from every corner about “Russian aggression” and nothing else. It is for such fooled citizens that the law “about the reintegration of Donbass” is written, and also words – pleasant to the hearts of “patriots” – about an aggressor are introduced.

Thus, the actions of the Ukrainian authorities are geared only for internal use in order to distract the Ukrainian people from real problems that can’t be solved, and to divert attention to imaginary “enemies and aggressors”.

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