Russia’s Invasion of Ukraine and the Interaction of Instrumentalized Law, Rhetoric, and Strategy

Maryland Journal of International Law Volume 38 Issue 1 Article 2 Russia’s Invasion of Ukraine and the Interaction of Instrumentalized Law, Rhetoric, and Strategy Christopher J. Borgen Follow this and additional works at: https://digitalcommons.law.umaryland.edu/mjil Recommended Citation Christopher J. Borgen, Russia’s Invasion of Ukraine and the Interaction of Instrumentalized Law, Rhetoric, and Strategy, 38 Md. J. Int'l L. (2024). Available at: https://digitalcommons.law.umaryland.edu/mjil/vol38/iss1/2 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal of International Law by an authorized editor of DigitalCommons@UM Carey Law. For more information, please contact . 1 BORGEN (DO NOT DELETE) 11/12/2023 6:53 PM Russia’s Invasion of Ukraine and the Interaction of Instrumentalized Law, Rhetoric, and Strategy CHRISTOPHER J. BORGEN† I. INTRODUCTION This essay considers the integration of international legal argument within politico-military strategy.1 It assesses Russia’s arguments concerning its expanded invasion of Ukraine in comparison to its prior use of legal arguments in relation to Kosovo’s drive for independence, the secessionist conflicts in the Russian “Near Abroad,” and its 2014 annexation of Crimea.2 While there is a larger story concerning the perceptions and misperceptions of U.S., European Union (EU), and Russian intentions and actions in the years since the ©2023 Christopher J. Borgen † Professor and Co-Director, Center for International and Comparative Law, St. John’s University School of Law, New York. This essay benefited from the insights and comments of the participants in the November 2022 Symposium on Aggressive War organized by the Maryland Journal of International Law (MJIL) and the University of Maryland Francis King Carey School of Law’s International & Comparative Law Program. I am also grateful to the editors and staff of the MJIL, and especially Editor-in-Chief Katelyn Leisner, Executive Article Editor Junior Dufort, Sam Chase, Victoria Roman and Alexis Turner-Lafving, for their suggestions and fine editorial work. Any mistakes are solely my own. 1. This essay draws in part on Christopher J. Borgen, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, 91 INT’L L. STUD. 216 (2015) and Christopher J. Borgen, The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia, 10 CHI. J. OF INT’L L. 1 (2009). I have also written about related issues elsewhere, including as the principal author of Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova, 61 RECORD OF THE ASSOC. OF THE BAR OF THE CITY OF N.Y. 196 (2006) [hereinafter, “NY City Bar Moldova Report”]. 2. The term “Near Abroad” has been used by Russian political leaders to describe the former Soviet Republics. See GERARD TOAL, NEAR ABROAD 3 (2017). 1 1 BORGEN (DO NOT DELETE) 2 11/12/2023 6:53 PM RUSSIA’S INVASION OF UKRAINE [Vol. 38 end of the Cold War, that is for another article. This essay is focused on the fact of Russia’s invasion of Ukraine and the roles played by legal rhetoric as part of Russia’s strategy. This essay is divided into three sections. The first is an overview of legal argument as a tool of statecraft in a complex conflict. The second section compares and contrasts how Russia has instrumentalized legal argument in recent conflicts. The essay concludes by reconsidering the interplay of legal argument, diplomatic rhetoric, and politico-military strategy in light of Russia’s recent practices. II. LEGAL ARGUMENT AND MULTIDIMENSIONAL CONFLICTS The language of the law—of rights and of what is right, of what is legal and illegal—is a tool of statecraft that is part of politicomilitary strategy. Legal claims are often a rhetoric of first, not last, resort. How we talk about law, and especially how national leaders talk about law, can shape perceptions both of law and of the conflict, justifying one’s own actions while undermining those of an adversary. Claims of right—regardless as to whether they are well-founded—can be used in an attempt to strengthen the resolve of one’s own side, or to persuade undecided parties either to act or refrain from action, or to confuse or weaken the resolve of one’s adversary. Prior to a single shot being fired, framing the legality of a situation can be the normative analog to preparing the battlefield. When deployed in this way, law functions as an enabler, not a guardrail. It is used to assist power projection, not constrain it. One can summarize the primary levers of statecraft with the acronym MIDFIELD: Military, Informational, Diplomatic, Financial, Intelligence, Economic, Law, and Development.3 Of particular interest in this essay are the interactions of the law, diplomatic, and military aspects of state power within multi-dimensional conflicts. Russia’s annexation of Crimea is at times described as hybrid warfare—the coordinated use of military and non-military techniques to project power in a manner in which one’s adversary may not even realize that a conflict has commenced.4 Some have argued that hybrid (2018). 3. See, e.g., THE JOINT CHIEFS OF STAFF, JOINT DOCTRINE NOTE 1-18, vii-viii 4. For a discussion of varying definitions of hybrid warfare and related concepts, see OSCAR JONSSON, THE RUSSIAN UNDERSTANDING OF WAR 8–16 (2019). See also Patrick Jackson, Ukraine crisis: ‘Frozen conflicts’ and the Kremlin, BBC NEWS (Sept. 9, 2014), 1 BORGEN (DO NOT DELETE) 2023] 11/12/2023 6:53 PM RUSSIA’S INVASION OF UKRAINE 3 warfare presents a new challenge not only to existing military strategies but also to the regulatory structure of international law.5 But, while modern technology such as social media has broadened the methods of information operations and other aspects of hybrid warfare, the coordinated application of military and non-military tools of statecraft is as old as, well, statecraft. Of course, besides being deployed to confuse adversaries in ambiguous and stealthy conflict, legal argument is routinely used to justify overt military action, sometimes trying to hide naked aggression behind a fig-leaf of verbiage. The Melian Dialogue notwithstanding, those with might tend to explain to the world that what they are doing is actually right.6 Thus, what was meant to act as a constraint on state power is instrumentalized to amplify power. But international legal argument is not infinitely malleable. What makes legal rhetoric so attractive to strategists and propagandists is also what potentially provides a limit to its flexibility; international law operates like a consensual vocabulary and grammar for diplomacy, both explaining the meaning of concepts but also setting-out when words do and do not fit together.7 Although there are areas of contestation, there are also ar (...truncated)