Russian Aggression in Ukraine: The Case for a No-fly Zone
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Russian Aggression in Ukraine: The Case for a No-fly Zone

Since February 24, 2022, Ukraine has been defending itself from the acts of aggression by the Russian Federation. The unprovoked invasion by Russia, one of the largest military forces in the world, has resulted in over 1,100 civilian casualties based on the official UN records, with the actual casualties considered to be significantly greater. The UN High Commissioner for Refugees Filippo Grandi called the humanitarian crisis in Ukraine the fastest growing refugee crisis in Europe since World War II and the World Health Organization described the situation as a “humanitarian emergency affecting Ukraine and surrounding countries.” Yet, despite numerous calls for a cease-fire, including those by the UN High Commissioner for Human Rights Michelle Bachelet, Russian forces have not stopped their aggression.

To protect the people of Ukraine from this unjust war, Ukraine’s President Volodymyr Zelensky, who has since become a world symbol of the fight for democracy and national identity, has called on the global community to impose a “no-fly zone.” As the term suggests, a no-fly zone means aircrafts are not allowed to fly over a portion of another state’s airspace. A no-fly zone is imposed to protect the civilian population or restrict military activities. For Ukraine, a no-fly zone would shield Ukrainian air space from enemy missiles and aircrafts while giving the Ukrainian government an opportunity to evacuate civilians that were put in harm’s way.

In the past, no-fly zones were enforced over Iraq in 1991, over Bosnia and Herzegovina during the Balkans conflict in 1993–1995, and over Libya in 2011. In the case of Bosnia and Herzegovina and Libya, the no-fly zones were imposed by a UN Security Council resolution, arguably pursuant to the United Nations’ authority under Article 41 and 42 of the UN Charter. Specifically, Article 42 of the UN Charter states that the Security Council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” In the case of Iraq, however, no UN Security Council resolution expressly imposed a no-fly zone. Instead, it was maintained by US, UK, French, and Turkish forces.

Despite President Zelensky’s repeated pleas, Ukraine’s Western allies have not responded favorably to President Zelensky’s request. When first faced with the request for a no-fly zone after Russia invaded Ukraine, the response of the US political establishment circled around two points: (1) the principle of non-intervention and (2) the conviction that economic sanctions are a sufficient deterrent.

According to the proponents of the first point, it is simply not in the US’s interest to provide military assistance to Ukraine. Yet, several members of the US Congress have countered this argument, pointing out that the US’s hesitance to interfere and failure to thwart Putin’s efforts now may result in the need for larger scale support at a later time. In addition, it signals that the US is willing to abandon its allies, despite taking a formal position that it would provide support if the time comes.

Back in 1994, the US took the position that it would support Ukraine, when along with the UK and Russian Federation, it signed the Budapest Memorandum, under which Ukraine relinquished its nuclear arsenal and joined the Non-Proliferation Treaty in exchange for certain security assurances. Article 4 of the Budapest Memorandum states that the parties “reaffirm their commitment to seek immediate United Nations Security Council actions to provide assistance to Ukraine if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used.”

With the Russian Federation being a permanent member of the UN Security Council, any action by the UN Security Council is practically impossible. However, as a UN member, the US may encourage the UN General Assembly to recommend the imposition of a no-fly zone pursuant to the Uniting for Peace Resolution. Section 1 of the Resolution states that:

If the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.

The UN General Assembly’s powers under the Resolution were implicitly affirmed in two International Court of Justice opinions in 2004 and 2010.

As for sanctions, indeed, a number of states, including the US and EU members imposed a slew of sanctions against Russia and individuals within the current Russian regime responsible for the invasion of Ukraine. Yet, while the sanctions may prove significant, their effects may take years, and Ukrainian people need help now.

The main argument against a no-fly zone remains that enforcing one requires shooting down any Russian aircraft that enter Ukraine’s airspace, thus putting such forces in a military conflict with Russia. What these arguments fail to consider, is that the United States has already been in conflict with Russia, not in a traditional boots-on-the-ground sense, but in the sense of modern forms of warfare, such as information and cyber war, including Russian interference in the US presidential election. Quoting Fiona Hill, Former Senior Director for Europe and Russia at the US National Security Council and top Russia expert in the US, “[p]eople shouldn’t delude themselves into thinking that we’re just on the brink of something. We’ve been well and truly in it for quite a long period of time.”

History teaches us that ruthless dictators and autocrats must be restrained before their appetites become too costly for the entire world by a showing of unanimous global position against blatant violations of international law. In 1939, the world was too slow to push back against Hitler’s seizure of Sudetenland from Slovakia and annexation of Austria, which emboldened the Nazi regime to attack Poland and start World War II. There are no assurances that the Russian President will stop with Ukraine, as certain neighboring states are already on high alert for any further invasion.

Admittedly, this situation presents a new set of challenges compared to the German invasion in 1938–1939, the main being a threat of a potential nuclear war. However, at some point, the Western allies will have to make a calculated military decision to take a stance against Putin’s violation of numerous fundamental norms of international law because inaction in this instance threatens the entire global order.

Putin’s actions in Ukraine have indeed breached all foundations on which the current international community is built. By launching a full-scale attack on a sovereign state, the Russian Federation has violated section 4 of the UN Charter, requiring UN members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…,” as well as practically every article of the Final Act of the Conference on Security and Co-Operation in Europe signed in Helsinki, Finland in 1975 (also known as Helsinki Accords).

By indiscriminately bombing the Ukrainian cities of Kharkiv, Kyiv, Chernihiv, Kherson, Mariupol and attacking civilian targets which are not military objectives, Putin has committed grave violations of the 1948 Geneva Convention relative to Protection of Civilian Population in the Time of War (also known as war crimes). Therefore, at the very least the Western allies should impose a limited no-fly zone over civilian targets in order to enable safe evacuation of civilians from the war zone.

Currently, the residents of the city of Mariupol have been forced to stay in the city with no power, food, heat or water and the attempts to evacuate them have failed twice. Dozens of civilians have been trapped under a collapsed bridge in a small town of Irpin near Kyiv, unable to escape due to constant shelling by the Russian military. Thus, any economic response, no matter how harsh, will not save thousands of innocent lives destroyed by this senseless aggression and a no-fly zone may be the only option that can prevent further tragedy.

The situation presented to the US, EU and the entire international community is not an easy one. It is unprecedented that a permanent member of the UN Security Council openly defied the very principles it vowed to protect. Consequently, it will take unprecedented courage to stand up to Putin and defend Ukraine’s right to exist and define their own political faith. Because the cost of inaction is far greater.

 

Christina Alam graduated from Taras Shevchenko National University of Kyiv with a Master’s Degree in International Law and also has an LL.M. and a J.D. from the University of Pittsburgh. She is currently a practicing attorney in Pittsburgh, focusing on commercial transactions and data privacy.

 

Suggested citation: Christina Alam, Russian Aggression in Ukraine: The Case for a No-fly Zone, JURIST – Professional Commentary, March 7, 2022, https://www.jurist.org/commentary/2022/03/christina-alam-ukraine-russia-no-fly-zone/.


This article was prepared for publication by Rebekah Malkin, a JURIST staff editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org


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