The search for recognised political legitimacy and legality is integral to states which take part in the international system. As Moscow’s acts of aggression continue in Ukraine, the international community has not been able to end the war, nor appropriately address its illegality. With Russia’s actions strictly going against international law, the use of legal means to lock-in the status quo has been a key part of the Russian war strategy. This blog conceptualises lawfare and contextualises its uses by Russia at the UN level.
As the full-scale war in Ukraine approaches the start of its third year, the international community seems to have stagnated in its response, being no closer than it was at the start of the invasion to finding a peaceful resolution to the conflict through diplomatic means. While resolutions were adopted at the United Nations General Assembly (ES-11/1 to ES-11/7), Russia’s use of the veto has rendered those moved forward at the Security Council more symbolic than anything. The use of international institutions and forums to affect the legitimacy of a state’s military action is not new, multiple questions arise surrounding the use of legal means in an international order in which a partially gridlocked UN still plays a central role. Intergovernmental organisations (IGOs) such as the UN are pivotal in shaping the legitimacy of state action, both in the public eye, and for states to refer to a legal basis, for example in shape of the charter of the UN. Consequently, with the current gridlock of the UNSC on the Ukraine topic with the Russian Federation systematically blocking the resolutions calling for pre-war borders, the dichotomy regarding the use of legal means in a stagnating international system has become apparent.
UN and Legitimization
The authority to legislate or take important decisions over specific topics exists only if the institution that wields it is perceived to be legitimately doing so. Since 1945, the UN has taken important decisions that have affected global politics, yet since 2022 the Russian war of aggression, while having been discussed, has not been solved through UN channels. IGOs require social legitimacy to be effective, which has been achieved in the case of positive strides being taken in the conflict-intensity reduction thanks to the UN in the years after the cold war. Recent developments, however, paint a different picture. The UN summit in 2023 was notable for the lack of attendance from heads of state of most ‘big players’, with 2024 following this trend. Whether this development is a direct consequence of the full-scale invasion of Ukraine is beyond the scope of this article, however the rift between some of the P5 members – and therefore the UN’s publicly perceived legitimacy and usefulness as a dialogue platform for contentious issues – has dramatically decreased.
Lawfare – What Does it Mean
The instrumental use of IGOs by states looking to legitimize and legalize their military activity has risen as a natural development of warfare in the 21st century, hence why “lawfare” has been established as a standard instrument of modern warfare. While definitions vary in some respects, the concept can be understood as the use of legal processes to achieve strategic, and often military objectives. Importantly, one of this strategy’s key points is its use in influencingthe legitimacy and legality of an actor’s actions, an outcome that is of particular interest to most states. Legitimacy is used to enhance the legal status, hence why the use of lawfare at the UN, the highest legitimacy provider, appears so potent. Therefore, Moscow has directly employed lawfare since 2014, which has set the scene for its full-scale invasion of 2022. These tactics included for example the removal of Russian identifying marks on the “little green men”, who were labelled by Moscow as a self-defence force, thus denying any intervention and being able to claim responsibility to protect should Ukraine undertake military action against them.
As such, lawfare’s ability to shift discourse has been instrumental in the way Moscow has dealt with its relationship with Ukraine. Nevertheless, since Russia’s agenda for Ukraine has been discussed at length in several international settings, its attempt to refute the illegality of its actions through the use of Lawfare is notable, because international law is clear on unwanted military intervention in another sovereign country’s territory. Furthermore, the use of lawfare to openly challenge the international system on pre-established norms and policies can be seen by the public and other international actors as a breach of commitments to international law, thereby reducing the trust put in such multilateral institutions. Looking at Russia’s lawfare and legal activities at the UN however, a distinction must be made between the UN Security Council, and the General Assembly. With a leading role in the UNSC, but not as strong a position in the General Assembly, Russia’s attempts to shape the narrative and international law, surrounding the conflict in Ukraine lead to different outcomes.
Levels of Lawfare
From the definitions, lawfare is not limited to a specific international theatre per se, but by the legal framework the pre-established laws bring, and the degree to which they are respected and observed. As such, formal IGOs such as the UN prove to be particularly powerful arenas for acts of lawfare, because they provide legal pillars that have been formally agreed upon by the signatory parties. Since the UN also provides consequential international legitimacy through its resolutions, the levels of lawfare which are most important to Russia for it to be considered legal and legitimate, are domestic and at the UN for international purposes. The first identifiable level of lawfare is then domestic, where Moscow has signed into law acts which are meant to progress the status quo in its favour.
It is no surprise that such actions have been undertaken by Russia domestically to relative success. For instance, Moscow has increased the ease for citizenship access from eastern Ukrainians, and changed the country code for telecommunications, and signed Crimea’s absorption by Russia directly. These measures therefore showcase the local level of warfare practiced by Moscow against Ukraine, which differs from the international level regarding its success and methods.
The second important level at which Russian warfare takes place is in the international arena at the UN, specifically at the General Assembly. The UNGA has in large majority supported resolutions condemning Russian action in Ukraine and voted accordingly. Consequently, Russia’s impact on the adoptions calling for unfavourable outcomes is extremely limited. For example, resolutions such as ES-11/1 to ES-11/7 call for measures such as the withdraw from Ukraine to the payment of war reparations. All of these resolutions being adopted in a high-legitimacy body at the UN despite Russia’s political position showcases that Russian Lawfare is ineffective at the UNGA.
The third level, the UNSC is where Russia’s lawfare finds continued success. This means it has used its veto to block Security Council resolutions demanding a withdraw of Russian troops and peaceful resolution, thus showing some of lawfare’s power to conserve the status quo. It thus makes sense that Russia has not proposed any formal resolutions at this level, since it can only use its power to veto resolutions, but not to alter the status-quo.
While lawfare can be a powerful tool in the right circumstances, the context is just as important as the practiceitself. Of the more than 2 million people living in Crimea pre-2014, the use of lawfare by Moscow has changed their lives drastically through forced naturalization, and the invasion of the Oblast by the little green men, with the change in status-quo that followed. The use of domestic lawfare is the level which has proven the most effective for Russia to advance the situation in its favour internationally, hence responding to it is almost impossible besides condemning it at the UN level. Nevertheless, while the condemnation at the current time may not seem like much, the legitimacy of the UN, which is carried throughout the resolutions voted at the General Assembly gives Ukraine some leverage for the future. The resolutions voted at the General Assembly are not binding, however they do carry some political weight, as they reflect the will of a majority of states. Concretely, this means there can be no final legal and legitimate settlement without the support of the UN General Assembly, thus bolstering Ukraine’s case, showcasing a limitation of Russian warfare and lawfare goal attainment.
The inflexibility of the UN system (considering both the General Assembly and UNSC) represents both an opportunity for the use of lawfare, and a source of resilience against it. Indeed, while the veto is a powerful tool to conserve the status quo, it is difficult for Russia to change international law on Ukraine through those means alone.
So, What Can We Do?
Because it can take many different forms and appears in different theatres, countering lawfare is not ease. Yet it is undeniable that lawfare is largely possible only because it is somewhat permitted within the framework of international systems. Russia’s lawfare has proven difficult to deal with since it has a strong position in the UN through its membership of the P5. With this in mind however, Russia is not the one dictating international law, and its attempts to change the narrative around the legality of its actions are clear indications of this fact. For domestic decrees and laws, there is little one can do besides openly challenge the legality of such acts in the international setting (UN General Assembly resolution ES-11/4 as a prime example). For international acts and resolutions however, the question of the closing of loopholes is almost self-evident. Nevertheless, acts of lawfare challenging the legality of the internationally recognised borders provide a potential incursion and justification point, especially if rooted in some historical claim, fabricated or not. The true challenges come when legal means are at the same time accompanied by lethal methods, such as the expansion of Russia’s military presence as unmarked soldiers in Ukraine – or in the Arctic – in an effort to carve out a part of the region for itself. Lawfare must be exposed and labelled as soon as possible, because showcasing the underlying intention fundamentally undermines the new narrative that is being created. In addition, patching the loopholes in international systems while also bringing in changes to make them fairer and more prone to progress towards peace instead of status-quo gridlock is an absolute necessity.
Nevertheless, the geopolitical decisions the Russian state is taking and its disagreements with the West informs the lawfare actions as a key part of its strategy, particularly in the case of Ukraine. The permissiveness and deadlock of the UN has contributed to the reduction in trust that the institution can help resolve conflicts in a diplomatic manner and offer solutions. Importantly, a state’s use of lawfare is directly correlated to its capacity for such action and its standing in the pre-established system. While there is currently a limit as to what lawfare can accomplish, the same goes for how it can be contained. As a result, raising awareness to Moscow’s actions, not only in matters of military activities in the case of Ukraine but also the smaller scale acts – even those passed domestically – is paramount to countering the strategy.
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