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The International Law of War and the Russia Invasion of Ukraine


By Manfred Ekpe, Esq.


There has been hot debate for nearly two months now on the legality or illegality under international law of the invasion of Ukraine by Russia. Wars are governed by rules of international law and any war not in compliance thereof is in violation thereof. After the two world wars of the 20th century, nations agreed on a new world political order were the free use of force between states was generally prohibited by the formation of the United Nations Organization (UN) under which nations of the World bound themselves under a common charter (UN Charter) to maintain world peace, refrain from invasion of and from annexing weaker states and respect the sovereignty of states.


Article 2(4) of the Charter of the UN Charter stipulates thus —

‘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.’

From the foregoing, it is against the principle of international law as a general rule for any state to invade, attack or levy war on a sovereign state under circumstances frowned at by international law. In the Nicaragua v. United States case, the International Court of Justice found the United States guilty of violation of Article 2(4) by invading Nicaragua and sponsoring armed attack against it.

However, Article 51 of the UN Charter provides for exception to Article 2(4), to wit:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Though the wording of the Article 51 says that a state is entitled to defend itself by military response when attacked, but the word “attack” under international jurisprudence has been expanded to include imminent and apparent plans of an .attack in circumstances unacceptable under international law. This means a state needs not wait to be physically attacked before putting in motion self defense mechanism by attacking the enemy first before its attack on her materializes. Therefore, attacking the enemy first in her process of mobilizing to attack the responding state falls within article 51. See the Carolina Case (1837) infra.


Self defense under international law means the right of a sovereign state to defend itself against external aggression. International law recognizes a right of self-defence, as the International Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force under the rule of customary international law which has origin in the 1837 Carolina case. The Carolina was an American ship. In that incident, Great Britain destroyed The Carolina where two Americans died. The ship was being used in giving assistance to Canadian Rebels in the then British territory of Canada. At the time of the British military attack on the ship, it was not actually on attack on the British possession or helping the rebels but had previously done so.

In the ensuing diplomatic exchange between America and Britain, foundation for Anticipatory Self-Defense was laid down to the effect that where a real threat of attack is imminent from an enemy state, the responding state has the right to attack to demobilize the enemy state before they could attack. Hence it was deemed right to have attacked The Carolina because it posed real threat to the British colony of Canada.


As aforechronicled, an attack goes beyond actual attack to preparation to attack or on the mission to attack a sovereign state. Furthermore, it must be noted that the right of self-defense is not only deployed against the attack by the conventional military of another state, but also against non-state actors such as rebels, terrorists etc hiding in one state to attack another. A good example is the Allied Democratic Forces (ADF) hiding in the Democratic Republic of Congo (DRC) to attack Uganda against which Uganda though with permission of DRC Government invaded DRC to attack the enemy. Had DRC not given the permission, Uganda, nevertheless had justification under Article 51 to invade DRC in the circumstances especially as the DRC had no capability to contend the ADF terrorists. Another example of activating self-defense in international law as a result of armed attack by non-state actors is the invasion of Afghanistan by USA in 2001 for that country’s Taliban regime harbour and assistances to terrorists groups and provide them safe haven to coordinate terrorist attacks on US and its assets and citizens. Unfortunately many commentators including scholars criticize the United States for invading Afghanistan without recourse to the international law jurisprudence factored in Article 51 and the moral grounds for such invasion.

Throughout the modern world history since 1837 therefore, anticipatory self defense has always been employed by states in self-defense.

There are two principles of self defense under international law —

Individual self defense: where only one state acts to defend itself such as Uganda deploying the Uganda Peoples Defense Forces (UPDF) against terrorists in DRC or the US invasion of Afghanistan in 2001.
Collective self defense: where a number of states form alliance to defend themselves at the event one of them is attacked in the African old model of Ubuntu. Collective self defense act on the principle of attack on one is attack on all. North Atlantic Treaty Organization NATO and the defunct Warsaw Pact were formed under collective self-defense principle thus protecting weaker states from annihilation by stronger states which was the norm since prehistoric human history as recorded in the Bible up to when NATO and the UN were formed in the first half of the 20th century.
The inherent right of both individual and collective self-defence recognized under the UN Charter was reaffirmed by the United Nations Security Council in Resolution 1368 (12 September 2001) and Resolution 1373 (28 September 2001). Hence both individual and collective self-defense are permitted under international law.


There are three basic kinds of self defense, viz—

Anticipatory self defense: where the responding state acts in anticipation of an impending attack or to demobilize an attack under way, as above explained.
Preemptive Self defense: is a war that is commenced in an attempt to repel or defeat a perceived imminent offensive or invasion. It is an offensive launched by a state which has reasonable grounds to belief that an enemy state is stockpiling or developing weapons or planning or cultivating armed groups or abetting and aiding armed groups in preparation to strike it. The country which feels so threatened may preemptively strike first to gain a strategic advantage in an impending war shortly before that attack materializes. It is a war that preemptively breaks the pseudo peace. Preemptive self defense is also termed the doctrine of preemption. The doctrine of preemption was propounded by the Bush Administration in the United States National Security Strategy 2002 wherein the US president propounded the theory that the United States or other states need not wait and tolerate a rogue state’s obvious plans to attack it, and that the US upon receiving strong intelligence and evidence of possible future attack shall break the peace and attack the perceived aggressor first.
This law developed following real changes in societal situation away from the decade when the UN Charter was made. This doctrine was an inevitable need for the US national security arising from the incident of terrorist attacks on the US on 11 September 2001 (9/11) by Al Qaeda led by Osama Bin Laden. The Taliban Government in Afghanistan had haboured the terrorists in their territory from which they were believed to be planning more attacks on the US. Hence invoking the preemptive self defense tool, the US attacked, disarmed and dislodged the enemy government. Iraq was also attacked in 2003 on same grounds by CIA reports of development of weapons of mass destruction (WMD) perceived to be targeted at the US, though latter intelligence report showed this was mistaken. But USA ought to be held responsible for that violation of international law having realized that the CIA report was after all inadvertent, though at the time of the attack the US may have been justified on reasonable grounds.

Preventive self defense is military action to destroy the potential threat entertained by the responding state who feel that if an enemy or rogue state acquires certain dangerous weapons or WMD she or humanity is not safe and the world may be at the precipice of destruction. Just imagine how the Taliban Government should be in possession of WMD or Iraq under Saddam Hussein or how the Idi Amin regime of Uganda or the General Abacha regime of Nigeria would have been allowed to develop or be in possession of WMD? If irresponsible regimes attempt to acquire WMD, they could be attacked to haul the development.
The preventive strategy is employed when an attack by that party is not imminent or known to be planned, but is only launched to prevent development of military capability that may one day be used to attack another state or to invade or annex weaker neighbours or becomes a threat to world peace and security. The Trump Administration near invasion of North Korea stood on the principle of preventive self-defense.


There are a number of principal cases of real or perceived exercise of self-defense in the UN era, which includes but not limited to the 1981 Israeli attack on Iraq, the 1986 US attack on Libya and Sudan, the NATO invasion of Bosnia in 1995, the UN backed invasion of Iraq in 1991 for annexing Kuwait etc. On 7 June 1981, Israel undertook an air strike on Osiraq in Iraq where a nuclear reactor was under construction. The justification given by Israel was that it acted on the grounds of self-defence. I think this falls within preventive self defense since there was no known plan by Iraq to attack Israel at the time. However, Israel had for several years been concerned about the Iraqi nuclear program given the millennia long conflict between Israel and many Arab states, and ultimately the potential of that program to produce nuclear weapons that would be used against Israel one day.


The US attack on Libya on 15 April 1986 saw the US aircraft bombing three targets in Tripoli and two sites near Benghazi, Libya. The US military action came ten days after a bomb exploded in a night club in Berlin frequented by US servicemen, resulting in three deaths and 200 injuries. It also followed years of tension between the US and Libya over alleged Libyan links to terrorist attacks on the US. The US sought to justify the action on the grounds of anticipatory self-defence, premised on Article 51. In addition, it was also stated that the attacks were undertaken because there was ‘clear evidence that Libya is planning future attacks’and that the preemptive action against his terrorist installations will not only diminish Colonel Qaddafi’s reign of terror—it will provide him with incentives to alter his criminal behaviour. Other countries the US has attacked on justification of self defense includes Sudan, Iraq, Afghanistan etc.


Though anticipatory self defense is recognized under international customary law and under Article 51 of UN Charter and resolutions of the UN, however, Preemptive and preventive self defense has not got such recognition and their justification is still a matter of legal controversy and debate. However, where the UN Security Council approves preemptive or preventive strike on a country deemed to be a threat to world peace and security, the act becomes lawful. The UN Security Council in its Resolution 487 condemned the 1981 Israeli attack on Iraq.

In the case of the US attack on Libya, there was no conclusive Security Council debate understandably since the US justification for the action was also partly grounded on self-defence in response to Libyan-sponsored terrorist attacks on US assets which they claimed had concrete proves.

As earlier said, there is no judicial authority or UN conclusive authority on whether preemptive and preventive individual and collective self defense are lawful. However, problem of interpretation of whether an armed invasion such as the US did in Libya in 1986 arises when the nature of self-defense is interwoven and intertwined so that a line cannot be drawn whether it was anticipatory, preemptive or even preventive.

One would then be persuaded to conclude that since the UN Security Council nor General Assembly nor the International Court of Justice (ICJ) had pronounced themselves on the illegality or otherwise of preemptive and preventive self defense under the US vs Libya circumstances, US vs Sudan etc, that such strike passes for a precedence upon which other nations can follow, or even passes for customary international law. We shall see the veracity of such reasoning below.


The invasion of Ukraine by Russia in 2022 is seen by many jurists of international law, international law experts, activists and commentators as being predicated on preventive or preemptive self defense out of fear that should Ukraine join NATO (perceived enemy forces to Russia), that NATO or US forces will be too close to Russia thus constituting potential threat to the Russian security hence the preventive war.

The fact that there is no judicial authority on whether such strike is acceptable or within the purview of Article 51 may compel one to conclude that since the US and Israel have used the strategy for decades, then Russia or any other nation also has the right to use it. But are the facts of Israel and US similar to the Russian invasion of Ukraine? In law two or more facts may seem similar with the effect that the same legal principle applies. However, in law though facts may, on the face of it, seems to be similar, but on close examination they are distinguishable thus the principle applied to one may not apply to the other… We shall see this later on in the below analysis.


Arguments without proper facts lead to erroneous conclusion especially with propaganda employed by nations against the other. To properly put this question in perspective whether Russia is reasonably afraid of NATO or US forces coming close to its borders, there are a three questions to ask.

(1) is NATO an enemy force to Russia?

2) Has NATO ever invaded any peaceful country for the purpose of annexing it or for territorial expansion?

3) Are NATO forces already on the Russian borders for nearly 30 years without posing threat to Russian security?

One: is NATO Enemy To Russia?

This can best be answered by understanding why NATO was formed. NATO was formed in 1949 for the purpose of collective self defense (not as a unprovoked offensive platform) after the experiences before and at the two world wars where powerful nations including Russia and USSR would arise to invade and annex weaker nations as part of their territory.

The US and most European states have always believed in freedom of mankind and self determination. Hence NATO was formed, among other reasons, for the purpose of protecting vulnerable weaker states in the neighborhood of big brother bully states including USSR, under a covenant that attack on the least member state amounts to an attack on the strongest states. This arrangement was not to go on offensive against USSR or any other big aggressive state (and in fact never), but it was rather a collective defensive platform against big brother bully states, and to deter them from further invasion or annexation of weaker states, subverting it’s corporate identity and enslaving its people. This was in furtherance of the UN’s objective and principles on world peace and security.

Though controverted by propaganda of “the real reason why NATO was formed” which propounds that it was the West’s cover for military threat against the USSR, however, the decades’ long good behavior of NATO of non offensive/ non-territorial annexation policy and practice, would dictate that the version of why NATO was formed as enshrined in it’s establishment treaty is the true reason it was formed; to wit — as a collective self-defense platform, not an offensive platform.

In the common law criminal jurisprudence, there is what is known as character evidence where the character of an accused person can presume his commission of an offense. Putting this rule of municipal law before the international law periscope, character or behavior of states or international organizations can lead to the inference as to the intention of such state or for the formation of such international organization. NATO has never in its over seven decades of existence go on unprovoked offensive, or helped its members in territorial expansionism drive, or in the promotion of human rights violations, or in the attack of other countries to force its ideology on it etc. I would challenge anybody to prove to the contrary. This is a strong prove, contrary to Russia propaganda, that NATO was formed as enemy force to USSR and by extenso, Russia.

In fact since the formation of NATO in 1949 it was only in 1995 (46 years after formation) that NATO ever invaded any country, when it enforced the UN imposed No-fly Zone over Bosnia-Herzegovina where it struck at Bosnian Serb military positions and airfields on a number of occasions. So one can see how responsible and restrained NATO is, so that despite several provocations it enforces its mandate of collective self-defense very sparingly. So its nonsensical to buy into the propaganda by a highly offensive state like Russia that NATO was formed as enemy force against an innocent USSR security or that NATO today is threat to Russian security. Rather the facts and evidence, as above adduced, support the fact that NATO was formed to protect the world against USSR!

Evidently, the formation of NATO had also helped some hitherto bully states such as the old Germany to repent from its previous character of annexing neighboring states in an attempt to force them into a German empire as happened under Adolf Hitler.

These are the grounds upon which I base my argument, and strongly too, that it is mere propaganda to suggest that NATO was formed against Soviet Union thus giving Russia real grounds to fear of its former allies in the USSR joining NATO. The facts show that Russia’s behavior on Ukraine is only out of unrepentant zeal for an empire and foisting its undemocratic ideologies on the world.

Two: Has NATO ever invaded any peaceful country for the purpose of annexing it?

To the best of my knowledge the answer is no. I stand to be corrected. NATO has for the past over half a century been a peaceful union protecting its members states from aggression. Even then it enforces its mandate so sparingly and responsibly that in 46 years after formation, and despite several provocations, only invaded a country for the first time, namely, Bosnia, to enforce world security. Is there then any reasonable grounds to fear that one day NATO may arise, invade a peaceful state neighbouring to it’s member state and annex it or attack such neighbouring state except on reasonable grounds of self defense? The previous conduct of NATO does not support this presumption. Russia therefore has no reasonable grounds to be afraid of NATO. Such fear is clearly a make-belief and propaganda to justify its barbarism in Ukraine.

Three: Are NATO forces already on the Russian borders for nearly 30 years without posing threat to Russian security?

The Baltic states of Estonia, Latvia and Lithuania — and three members of the former Warsaw Pact: Bulgaria, Romania and Slovakia, Slovenia and many other countries either sharing boundary with Russia, close to Russia or members of the defunct Soviet Union or the Warsaw Pact have joined NATO, some of them barely a few years after the dissolution of USSR in 1991, yet this poses no threat to Russia security. Warsaw Pact was a treaty between the Soviet Union and some sovereign states for a collective self defense like NATO. It dissolved with the USSR. Why is it only Ukraine that would pose threat to Russia if it joins NATO? All arguments and concerns of Russia justifying its invasion of NATO are not matters of armed conflict but are issues that can be settled on a round table under international law. Some of these Russian concerns are (a) Ukraine government is marginalizing native Russians in Ukrainian (b) Ukraine must not join NATO. All these are issues that dialogue and diplomacy can solve. Wherein lies justification under Article 51 of the UN Charter or on moral grounds to invade a sovereign nation and destroy it’s cities killing its citizens? In the customary international law, the twin principles of necessity and proportionality must be applied in invoking Article 51. Flowing from this, does Ukraine seeking to join NATO to protect itself from future invasion by Russia as it did in Crimea raise the necessity under Article 51 to invade the country? Is the full blown war killing civilians and destroying cities proportional to any purported threat feared by Russia by Ukraine seeking to join NATO? The answer is no. At best, if at all necessity is adjudged in favour of Russia, striking a few military installations in Ukraine as warning could be adjudged proportional. Russia’s war in Ukraine in nothing more than in drive of its barbaric custom of invading sovereign states for an empire.

The answers therefore to the above three questions should be able to persuade a rational thinker that Russia has no reasonable grounds to fear NATO coming too close to its borders by Ukraine joining the union since over seven countries sharing borders with Russia are already NATO members some for nearly three decades.

Where a customary bully country is afraid of it’s weaker neighbour seeking to acquire friendship alliance of protection for its territorial integrity, such bully neighbour has reason to fear that her days of bullying are numbered hence a fight back to maintain it’s dominance and corporate ego in the neighborhood. NATO has no history of offensive territorial annexation, but Russia does! Russia has long history of invading neighbouring nations either for outright annexation or for creating a satellite state.

In my Ekid language of Southern Nigeria our forefathers had an old adage that says that “Adoho mkpo amuma aking anyong.” Meaning whosoever violates the law of the thunder looks at the sky ‘in fear of lightening.’” I think this is what is inflicting Russia.

If NATO has no precedent of rogue invasions and offensive for territorial annexation or offensive at all, except sparingly protection of member states from bully states, then Russia’s fear may only be found in the above Ekid adage, and not on genuine fear of US potential invasion of Russia but in fear that Russia would lose weaker countries to bully at will. The USA, despite its weaknesses, has never in it’s history of nationhood, despite it’s overwhelming military capability, annex weaker states like Russia did over Crimea and as Iraq did to Kuwait.

Does Ukraine has the Right to join NATO?

One of the reasons given by Russia to justify it’s objection to Ukraine joining NATO is highlighted in the aforegoing paragraphs. I have highlighted how such fear is not well founded based on facts and precedence. Several nations sharing boundary with Russia including Bulgaria, Latvia, Lithuania and several others are already NATO members. Why is that of Ukraine special?

All Nations just as humans have the right to freedom of association founded on international law.

Was there any agreement between USA and Russia that NATO will never expand eastward (toward Russia?).

Russia claim is that in 1990 the West agreed not to expand toward the East. There is no legal agreement or any treaty prohibiting NATO from expanding eastward but Russia argues that comments made by U.S. and other Western leaders during the negotiations over the reunification of Germany constituted a promise that NATO would not extend beyond the then East Germany. Those who do not understand the principle of international law on agreements would swallow Russian propaganda that the US has violated that perceived gentleman agreement by seeking to admit Ukraine in NATO.

First, had the US and USSR intended to make such agreement, or any legally binding agreement on those terms, of course there would be a treaty signed by both parties. Lawyers will agree that during negotiations for legally binding agreement, any thing said but not made part of the written agreement was not intended to be part of it. To give traction to this reasoning is the fact that about six years after the purported agreement not to expand eastward, the 1997 NATO- Russia Establishment Act which dictates the relationship between NATO and Russia was signed and such commitment was not included. All these show that there was never a time USSR or Russia agreed with the US or NATO of non expansion toward the east. Russia itself wished to join NATO in the early 1990s after the dissolution of USSR. That means if there was such agreement Russia was the first to set the balls rolling to depart from it! Yet there was no such agreement.

Assuming a non written agreement was reached, which is uncustomary in relation between rival nations, I am not aware of any international law principle under international law of succession to treaties, that binds new states which arose from a dissolved state to treaties or agreements made under the defunct state. Assuming but not conceding that the US promised in 1990 that NATO will not expand east toward USSR to which Ukraine formed the confederation, in 1991 the USSR dissolved and each confederation formed sovereign states. Had such 1990 Russo-America agreement existed, it would no longer bind on Ukraine or any other former USSR territories because it’s parent state, the USSR no longer exists. Had USSR still existed, the dynamics would be different under the International Convention on States Succession to Treaties which stipulates that where a sovereign state arises from an existing state, previous treaties made under the mother state are still binding. If there was such understanding, the Russian diplomats, lawyers and negotiators would have it incorporated in the 1997 NATO-RUSSIA Establishment Act. And Russia would not have indicated interest to join NATO!

Furthermore, had there been any binding agreement between Russia and USA/NATO, the combined effect of Articles 34,35 and 36 of the Vienna Convention on the Law of Treaties (1969) though applies only to written agreements stipulates that third party States are not bound by bilateral treaties except they consent to be bound. Ukraine since its nationhood has never consented to be bound by any purported Russo-American agreement of non expansion of NATO.

Finally Article 61 of said Vienna Convention supra, specifies that where there is supervening event such that makes the purpose for which a treaty was made is no longer in existence, the treaty shall terminate. Assuming but not conceding that there was any legally binding agreement that NATO must not expand eastward toward USSR, the USSR no longer exists and such agreement would naturally terminate.

Aftermath of Russian/Ukraine War: How prepared is Africa for a new world order after the war?

Thank you the Pan African Pyramid for the vision and initiative to organize this debate as perhaps the only African body including governments to worry about and plan for an imminent or apparent new world order after the Russia/Ukraine war. Some commentators argue that the war will not usher in a new world order. With respect, I disagree.

What is world order? Cambridge online dictionary defines new world order as—

‘a political situation in which the countries of

the world are no longer divided because of their

support for either the US or the Soviet Union and

instead work together to solve international problems.’

Flowing from this definition, the action of Russia appears to reverse the prevalent world order to the opposite or cold war era. This Russian aggression on Ukraine should not be seen as just another usual war among nations. It is a war that has upset the scales of world politics. And there is most likely than not, to be a new world political, legal and economic world order that will dance on the African soil. First, Putin has by this war and utterances enacted a new cold war. Let me call it Cold War II where Western States and Russia and it’s allies will be seen on a non-armed conflict of supremacy. Africa is a virgin forest were this cold war will be fought as each bloc will struggle for allies on the continent. Secondly, the economic depression that the war will cause in the West and East is likely to be recovered from Africa. This may then necessitate political and economic rivalry on the continent such as experienced in the cold war years. Hans Kelson Political/legal theory is likely to be revived. This is the new world order that is imminent post Russia/Ukraine conflict.

Hans Kelson theory is all about a new political order becoming the legitimate legal order no matter how that political order came into existence even through unconstitutional means. The simple word to use in defining Hans kelsen theory from the prism of the expected new world order is that the era of legitimizing of coups is likely to return to Africa.

Recall that since most African countries attained political independence in the 1960s coups to change governments plagued the continent. These coups are linked to the cold war were both the Western and Eastern powers sponsored or supported coups to topple governments unfriendly to either bloc. It could also be recalled that since after the collapse of the Soviet Union in 1991 and the cold war came to an end, Western Powers became no more suspicious of nations aligning with the east, Russia inclusive. Hence the West began promoting democratic rule in Africa and would not tolerate coups or undemocratic ascension to political power on the continent. It is my strong opinion that with the rise of Russia again from the dust of the cold war, the coup d’ tat world order may be ushered in again as each bloc fights to retain or regain its position in world supremacy. The Western bloc may soon be scouring for allies that they may use to overthrow African regimes who refused to support the West against Russia’s invasion of Ukraine and who would fail to align with the West in the new world order. Countries with long reigning leaders are more at risk of the imminent new world order except they are smart to play their cards safe.

How is Africa Prepared?

How is Africa prepared for the new world order? Africa has never been prepared for anything. This will not be an exception. But my advice for African leaders is to align with the progressive, humane West. I strongly belief the West will win this ideological though not the weaponized war. Though Russia may physically win in Ukraine because NATO has been cautious against deploying its full might against Russia in Ukraine in its custom of avoiding a world war. But ultimately the West is primed to win the war perhaps decades after the physical war is over.

The West controls world’s economy and politics. Where Africa refuses to align with the West in this war, the West may revenge by reviewing their foreign policy on Africa, and belief me, the East can never replace the West’s more liberal policy on the continent. African leaders should look beyond juicy loans and the free arms market in Russia and China. Think and plan for the future of your children.


I hereby depart from my previous position and condemn Vladimir Putin the president of Russia in very strong terms for violation of international law and aggression in Ukraine. Putin and his top officials should be held personally liable, by the international law doctrine of command responsibility, of all human rights violations, progom and crimes against humanity in Ukraine.

Manfred Ekpe, Esq is a young Nigerian lawyer,

civil/human rights activist, writer, educationist,

and has several legal publications to his name published

by Google.

+2348066120111 (WhatsApp);


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