Humanitarian Exchange or Legal Normalisation?

Since February 2022, the Russian Federation’s military action against Ukraine has been characterised, with unusual clarity, as a violation of one of the most fundamental norms of the international legal order. Although the large-scale invasion in 2022 marked a dramatic escalation, the underlying breach must be situated within a continuum of unlawful conduct traceable to 2014. This post argues that, while humanitarian prisoner exchanges are lawful and often necessary, their increasing characterisation as indicators of stabilisation or reciprocal accommodation risks blurring the legal boundary between humanitarian engagement and the duty of non-recognition arising from serious breaches of peremptory norms. Taken together, these resolutions (ES-11/1 and ES-11/6) situate the invasion not merely as an internationally wrongful act, but as a particularly grave breach of a peremptory norm, thereby engaging the special regime applicable to such violations.

The tension addressed in this article arises precisely here. While prisoner exchanges are lawful and often required, the interpretive meaning attributed to them matters. When humanitarian cooperation is framed as a confidence-building measure or as evidence of stabilisation, it risks obscuring the legal reality that the underlying situation remains one of serious and continuing illegality.

Therefore, the concern, is one of meaning rather than permissibility. This creates a tension between permissible humanitarian pragmatism and the structural discipline of non-recognition, which this post examines through the legal meaning attributed to such exchanges.

Non-Recognition as a Legal Discipline, Not a Political Gesture

The illegality of Russia’s invasion does not merely generate bilateral consequences between the parties. It activates a distinct regime of obligations owed to the international community. Articles 40 and 41 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) codify the legal consequences of “serious breaches of obligations arising under peremptory norms of general international law”.

The judicial response reinforces this characterisation. In Ukraine v Russian Federation, the International Court of Justice indicated provisional measures requiring Russia to suspend military operations, situating the conflict within a framework of continuing unlawfulness. (Order of 16 March 2022, paras 58-60, operative para 86(1)). While the Court carefully circumscribed its jurisdiction, the order nonetheless situates the conflict within a framework of continuing unlawfulness.

Against this backdrop, Russia and Ukraine have engaged in repeated humanitarian prisoner exchanges, often facilitated by third States or international intermediaries. Such exchanges are neither extraordinary nor unlawful. International humanitarian law expressly permits the repatriation and exchange of prisoners of war on humanitarian grounds.

However, these provisions, operate within a strictly functional legal regime. Humanitarian arrangements regulate the treatment of individuals; they do not alter the legal character of the conflict, nor do they affect responsibility for violations of jus ad bellum. As the ICJ made clear in Armed Activities on the Territory of the Congo (para 148), humanitarian considerations cannot legalise the use of force or neutralise the consequences of its unlawful character.

Article 41(2) imposes a duty on all States not to recognise a situation created by such a breach as lawful, nor to render aid or assistance in maintaining it. The ILC Commentary (Commentary to Art 41, paras 5-6) emphasises that this obligation is not limited to formal recognition but extends to conduct that may imply acceptance or legitimacy. In this sense, non-recognition is a discipline of legal meaning, not merely a political stance. This matters because the obligation extends beyond formal acts of recognition to encompass conduct and discourse that may imply legal acceptance of an unlawful situation.

The ICJ has consistently affirmed this understanding. In its Namibia Advisory Opinion (para 126), the Court held that States were obliged not only to withhold recognition of South Africa’s continued presence in Namibia, but also to “refrain from any acts and in particular any dealings” that might imply the legality of that presence.

This approach was reaffirmed in the Wall Advisory Opinion (paras 159-160), where the Court concluded that all States were under an obligation not to recognise the illegal situation resulting from the construction of the wall in the occupied Palestinian territory and not to render aid or assistance in maintaining that situation. More recently, in the Chagos Advisory Opinion (paras 176-178), the Court stressed that prolonged factual control and administrative stability do not erode non-recognition obligations arising from a serious breach of international law.

Read collaboratively, these judgments establish that non-recognition is not defeated by time, pragmatism, or partial cooperation. It is a structural response to illegality, designed to prevent unlawful situations from hardening into accepted legal realities.

Within this framework, humanitarian exchanges do not violate the duty of non-recognition as such. However, when they are discursively presented as markers of normalisation or mutual accommodation, they risk unsettling the legal boundary between humanitarian exception and legal acceptance.

The problem is not the act, but the meaning attached to it. The risk, therefore, is not that humanitarian exchanges violate international law, but that their framing may contribute to a subtle form of interpretive normalisation that erodes the clarity of erga omnes obligations.

When Humanitarian Pragmatism Begins to Speak the Language of Normality

The persistence of illegality in the Ukraine context has been repeatedly confirmed through institutional reporting. Institutional reporting (compilation of Protection of Civilians reports; e.g., UN Doc. A/78/480–S/2023/720) continues to document ongoing hostilities and civilian harm, reinforcing that the conditions giving rise to erga omnes obligations remain in place.

Similarly, OSCE fact-finding under the Moscow Mechanism has likewise identified serious and systematic violations, reinforcing that the breach remains ongoing.

Against this backdrop the framing of humanitarian exchanges becomes legally significant. International law accommodates humanitarian pragmatism, but it does not permit normative drift. As the International Law Commission Commentary cautions (Commentary to Art 41, para 6), States must avoid conduct that could “lend legitimacy” to a situation created by a serious breach.

Describing prisoner exchanges as confidence-building measures risks re-casting a relationship structured by illegality into one of reciprocal accommodation. This does not violate international humanitarian law, but it threatens to weaken the expressive function of erga omnes obligations. They depend on consistent and unambiguous articulation.

Implications

This interpretive tension is not merely practical; rather, it reveals a deeper instability in how international norms mediate between engagement and continuing unlawfulness. The duty of non-recognition, as articulated within the framework of state responsibility, extends beyond formal acknowledgement to encompass conduct that may imply acceptance of an unlawful situation. Yet, as James Crawford, draws out in State Responsibility: The General Part, the force of such secondary obligations depends not only on their formulation but on their consistent expression in State practice. Once interaction becomes routineised, the line between abstention and accommodation begins to blur.

However, a comparable ambiguity then emerges in the literature on recognition. In his sustained treatment of recognition in Recognition of Governments in International Law Stefan Talmon shows how international law tolerates various forms of engagement with contested regimes but offers no stable criterion for identifying the point at which such engagement begins to signal legitimacy. Humanitarian exchanges sit squarely within this indeterminate terrain: they are justified on humanitarian grounds, yet their repetition and framing may generate the appearance of settled interaction, even in the absence of formal endorsement.

Therefore, what is at stake is not simply compliance, but the production of normative meaning. As Martti Koskenniemi, drawing on his account of international law’s oscillation between “apology” and “utopia”, argues in From Apology to Utopia, international law functions through competing argumentative structures in which identical conduct may be cast either as principled cooperation or as impermissible accommodation. In this light, characterising prisoner exchanges as “confidence-building” measures is far from neutral; on the contrary, it participates in shaping the normative understanding of the underlying situation.

In turn, this foregrounds the centrality of interpretation. As Andrea Bianchi notes in Interpretation in International Law, meaning is not simply discovered within rules, but constructed through interpretive practice. If humanitarian engagement is consistently narrated in terms suggestive of reciprocity or stabilisation, the expressive force of non-recognition risks gradual dilution.

Humanitarian exchanges in the Ukraine war remain indispensable as instruments of relief. Even so, their significance lies less in their occurrence than in how they are framed and understood. Where serious breaches persist, international law demands that pragmatic cooperation be articulated with care, so that the boundary between humanitarian exception and tacit acceptance is not obscured. The durability of non-recognition, in this sense, depends not only on restraint in action, but on discipline in language.

While this analysis has focused on prisoner exchanges as a particularly visible site of interpretive slippage, the underlying phenomenon is by no means confined to them. Similar tensions arise across a broader range of practices, including diplomatic engagement, economic arrangements, and, particularly, ongoing peace proposals. In such contexts, the language of pragmatism and conflict resolution often coexists uneasily with the continuing obligation of non-recognition. This raises the risk that efforts directed towards stabilisation may inadvertently contribute to the normative accommodation of unlawful territorial situations. Therefore, the challenge extends beyond any single practice: it lies in ensuring that engagement, however necessary, does not recalibrate the legal meaning of the breach itself.