Felipe Dana/Associated Press
David Sloss is the John A. and Elizabeth H. Sutro Professor of Law at the Santa Clara University School of Law and a faculty scholar with the Markkula Center for Applied Ethics. Views are his own.
Article 2(4) of the United Nations Charter prohibits the use of military force “against the territorial integrity or political independence of any state.” Article 2(4) is one of the most important rules, if not the most important rule, in modern international law. The UN Charter’s prohibition on the use of force is not just a legal rule—it is rooted in moral principles related to the sanctity of human life and the collective right of a nation to determine its own destiny. Russia clearly violated Article 2(4) when it invaded Ukraine on February 24, 2022.
The United States also violated Article 2(4) when it invaded Iraq in March 2003. (The U.S. government claimed otherwise, but its legal justification for the invasion was unpersuasive, in my view.) Since both invasions violated Article 2(4), should we conclude that the U.S. and Russian actions are morally equivalent? Certainly not.
One way to evaluate the moral equivalence argument is to compare the number of civilian deaths in the two wars. As of April 28, Russia has reportedly caused 2,829 civilian deaths in Ukraine in just over two months. Estimates of civilian deaths in Iraq vary greatly. One estimate puts the number of civilian deaths between 180,000 and 210,000 as of October 2019. That figure includes deaths “caused by the U.S., its allies, the Iraqi military and police, and opposition forces” over a sixteen-year period. If we translate figures from Iraq and Ukraine into monthly death rates, the Iraqi figure is about 1,000 civilian casualties per month, whereas the Ukrainian figure is about 1,400 per month. Those figures lend some support to the moral equivalence argument. However, I suspect that the Ukrainian numbers will soon be revised upward. More importantly, other data strongly refutes the moral equivalence argument.
Consider the number of innocent civilians forced to flee their homes as a result of the two invasions. The pre-war population of Iraq was about 25 million people. According to one source, “the 2003 U.S. invasion displaced approximately 1 in 25 Iraqis from their homes”—a total of about one million people. In contrast, the total population of Ukraine before the invasion was about 43 million people. As of April 28, just two months into the war, approximately 13 million Ukrainians have fled their homes, including 5.3 million refugees and 7.7 million internally displaced people. In other words, about 30 percent of Ukrainian citizens have been displaced as a result of the Russian invasion!!! That shockingly high percentage is directly attributable to the extreme brutality of Russia’s military tactics.
Article 1 of the International Covenant on Civil and Political Rights provides: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status . . . .” The right of self-determination is an important moral right that belongs to the people of both Ukraine and Iraq.
Russia’s invasion of Ukraine is antithetical to the principle of self-determination. Russia’s primary objective in Ukraine, at least initially, was to obliterate Ukraine as an independent state. Putin sought to justify the Russian invasion by claiming falsely that Ukraine was never truly an independent state. It remains unclear whether Putin wanted to annex all of Ukraine (as he did with Crimea in 2014), or simply transform Ukraine into a subservient vassal state that would do his bidding. Either way, Russia’s invasion is antithetical to the moral right of the Ukrainian people to govern themselves.
Compare the U.S. invasion of Iraq in 2003. President Bush never intended to terminate Iraq’s status as an independent country. To the contrary, one of his stated goals was to remove Saddam Hussein from power so that the people of Iraq could govern themselves, rather than being subjected to the tyrannical rule of a brutal dictator. The goal of converting Iraq into a western-style democracy was probably unachievable from the outset. Moreover, that goal does not, in my view, provide a sufficient legal justification for violating Iraq’s territorial integrity. Nevertheless, the U.S. effort to promote democratic self-government in Iraq provided at least a plausible moral justification for the invasion. In contrast, Russia’s invasion of Ukraine is morally indefensible because Putin’s objectives cannot be reconciled with the Ukrainian people’s right of self-determination.