Lies, Lies, Lies and Legitimacy: Why the Responsibility to Protect matters in Ukraine

Professor Adrian Gallagher writes on how the Responsibility to Protect helps delegitimise Putin's claim that Russia is acting in Ukraine to stop a genocide.

On February 23 2022, Vladimir Putin attempted to justify the Russian invasion of Ukraine on the grounds that he was responding to the on-going genocide perpetrated by the Kyiv regime in Donbass. This formed part of a broader historical narrative that Putin needs to prevent the threat posed by Ukrainian fascists. These claims were rightly rejected. As Alexander Hinton explains, although the violence between pro-Ukrainian and pro-Russian forces is ‘concerning’, it ‘doesn’t remotely resemble genocide’. Putin was, as many have done before, politicising the term genocide for his own advantage. Since then, Ukraine filed a law suit at the International Court of Justice rejecting the idea that genocide is taking place in Donbass. Although Russian representatives did not cite the Responsibility to Protect (RtoP) explicitly, as was done prior to the 2008 invasion of Georgia, I want to focus here on why the reference to genocide matters in the pre-intervention context (the post-intervention period is a different debate).

If Putin wanted to stop genocide there is a process in place, and the fact he did not follow this process undermines his claims that he was acting to prevent genocide. At the World Summit in 2005, United Nations Member States unanimously endorsed the RtoP. This is a shared responsibility to protect populations the world over from four crimes: genocide, crimes against humanity, ethnic cleansing, and war crimes. Although the RtoP is complex and controversial, it is important because, as Michael Doyle explains, it acts as both a ‘licence’ and a ‘leash against forcible intervention’. Unfortunately, too much of the criticism directed toward the RtoP has focused on its [in]ability to stir action (the licence) rather than how it can delegitimise the wrong type of action (the leash). Regarding the latter, Cristina Badescu (now Stefan) and Thomas Weiss argue that when norms such as the RtoP are invoked by a state but no one else buys into it, it exposes the ‘disingenuous and geopolitical’ motives at play. This is not to suggest that a norm such as the RtoP can stop an invasion but that norms are important because they can help delegitimise the action in question.

If Putin wanted to stop a genocide in Donbass he needed to make his case at the United Nations Security Council in order to gain the necessary authorisation to use military force under Chapter VII of the United Nations Charter as laid out in paragraph 139 of the Responsibility to Protect. He did not do this because he is lying. He knows there is no genocide in Donbass and therefore did not make his case at the United Nations Security Council. On this note it is worth recalling that even if Russia sought to prevent genocide under the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, rather than the 2005 RtoP, they would still need to make their case at the United Nations as set out under Article VIII of the Convention. Again, the fact that Russia did not do this undermines the claims made in the name of genocide prevention. Of course, one may say we all know that Putin is lying but the RtoP and the Genocide Convention help us understand and evidence this. The fact that 141 states voted against Russia’s invasion in the UN General Assembly vote on March 2 2022, suggests that the vast majority of the world has not bought into Russia’s justification. Despite his best efforts, Putin has not been able to manipulate the idea of genocide prevention and has lost all sense of legitimacy.

Alexander Hinton comes close to what I argue here when he explains that Russia could have presented evidence to the United Nations in order to make the case for ‘humanitarian intervention’. The problem with the ‘humanitarian intervention’ approach, however, is that there is no shared international consensus over what ‘humanitarian intervention’ is, when it should be implemented, or how it should be done. Furthermore, as Edward Newman explains, the United Kingdom maintains the ‘highly controversial’ position that ‘humanitarian intervention’ can be authorised without the consent of either the target state or the United Nations Security Council. But if this is the case, is the United Kingdom’s position not inadvertently legitimising, or at least paving the way, for the very type of action we have seen over the past week – unilateral invasion for so-called humanitarian reasons. Historically, this is, in part, why realists have opposed the idea of ‘humanitarian intervention’ because they fear it can act as a trojan horse for ulterior motives. Yet this is precisely why the RtoP is important and is needed. Not just because those that defend it hold onto the idea that it may help reduce mass atrocity crimes but that it can help delegitimise the wrong type of action taken under the name of mass atrocity prevention.

Finally, it should be stressed that invoking the RtoP does not dictate that a certain thing will or should be done. As Jennifer Welsh explains, ‘what type of action follows on from its invocation will depend on a host of factors…’ We should accept that the RtoP norm, like any other norm, is part of an on-going process of contestation and to return to Doyle, understanding the role that it can play as both a ‘licence’ and a ‘leash’ is an integral part of this. Rather than shun and/or mock the RtoP norm, academics and policymakers should consider its potential for constraining forcible interventions in international society.

Adrian Gallagher is a Professor in Global Security and Mass Atrocity Prevention in School of Politics and International Relations at the University of Leeds. He is also co-director of the European Centre for the Responsibility to Protect and Editor of the journal Global Responsibility to Protect.

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