Ukraine needs to prepare a consolidated claim on Russia’s responsibility for its armed aggression to be used in international courts, as well as laws on the occupied territory and the restoration of territorial integrity
Ukraine has filed cases against Russia at the European Court of Human Rights, the International Court of Justice, the International Tribunal for the Law of the Sea, and the International Criminal Court. These, however, cannot and should not be viewed as a replacement of a consolidated claim. Nor could such consolidated claim be a replacement of Ukraine’s motions against Russia in international courts.
The liberation of the occupied parts of Ukraine will inevitably continue to be a No1 issue on Ukraine’s social and political agenda. Recent heated debates on the draft versions of the law on the temporarily occupied territory, and draft law on the Restoration of Ukraine’s Territorial Integrity, as well as the official reaction to the blockade of trade with the occupied territory initiated by activists only confirm that further delays in finding the solution to favor someone’s business interests are impossible.
Tactics and strategy in courts
The preparation of a consolidated claim on the one hand, and Ukraine’s cases in international courts on the other hand, are elements of a unified state policy, albeit with different functions. The goal of this policy is to establish and enforce Russia’s responsibility for the crime of aggression against Ukraine.
The Ukrainian cases that are currently heard in international courts offer a tactical solution of holding Russia accountable for violations of individual international conventions during its armed aggression. If the verdicts are in favor of Ukraine, they can indirectly solve some aspects of Russia’s responsibility, but not the crucial ones. Therefore, in addition to those cases, Ukraine must prepare a consolidated claim. Its strategic goal would be to establish consolidated legal base for a process to hold Russia fully and directly accountable for all the consequences of its armed aggression as a crime.
Importantly, the tactics used by the Ukrainian delegations in various ongoing processes in international courts should fit into a unified strategy of legal defense of Ukraine’s national interests in the context of the Russian armed aggression. The consolidated claim against the Russian Federation should be the key element of this strategy. All that more that the potential of using international courts to protect Ukraine’s national interests in its relations with Russia has been exhausted.
The consolidated claim should be the official document presenting Ukraine’s legal stance on Russia’s responsibility for the armed aggression. The preparation of the claim should be accompanied by the streamlining of the documents, fact-based materials and interrogation protocols of prisoners of war, testimony of civilians, verdicts and conclusions of Ukrainian courts, and similar documents. Compiled this would present a unified bulk of evidence to defend Ukraine’s legal stance and its claims against the Russian Federation as aggressor state.
It is of crucial importance for the claim to convincingly prove that it is not just the regular units of the Armed Forces of Russia that are involved in the armed aggression against Ukraine, but irregular forces and militant groups created, armed, commanded, controlled and funded by the Russian Federation. That its actions qualify as armed aggression under item 3.g of the UN General Assembly Resolution 3314 (XXIX) on the Definition of Aggression (dated December 14, 1974) and Art. 1 of the Law of Ukraine on Defense No 1932-ХІІ dated December 6, 1991.
It is equally important to profoundly prove that the Russian civil administration and the Russian Armed Forces in Crimea are an occupation administration and an occupation army. In the temporarily occupied parts of Donetsk and Luhansk oblasts, quasi-state collaborationist entities known as the “Donetsk and Luhansk People’s Republics” (“DNR” and “LNR”) act as such occupation administration. They were created by Russian special services, while the occupation army there is comprised of both the regular and irregular unites of the Armed Forces of Russia.
The key element of this consolidated claim should be the assessment of the damage inflicted on the Ukrainian state, society and citizens by the armed aggression of the Russian Federation. Also, Ukraine should justify its claims regading the scale and forms of reimbursement for the losses it faced as a result of the aggression. Therefore, the document should pay special attention to war crimes and crimes against humanity committed by the political leadership and military command, as well as the personnel of the Armed Forces of the Russian Federation.
The consolidated claim should be approved by the National Security and Defense Council of Ukraine and enacted by the Presidential Decree. Consequently, it should be sent to the Russian Federation as an official document with a supplementary diplomatic note on Ukraine’s vision of peaceful processes to discuss its claims (direct talks, negotiations involving third parties, international arbitration, International Court of Justice).
If Russia rejects this (as expected), Ukraine will have an opportunity to transfer its consolidated claim against Russia to the international status by exercising its right to distribute it among UN member-states as an official document of the UN General Assembly, and within other international organizations and platforms. The consolidated claim can be a powerful instrument to dispel the statements of the Russian authorities and propaganda about the conflict in Eastern Ukraine as an internal one, and not a continuation of Russia’s armed aggression launched with the grab of Crimea. This claim would remain an official document that would record Ukraine’s legal stance and clearly outline its claims against Russia as aggressor state. Moreover, these claims would not have an expiration date.
Therefore, the preparation of this consolidated claim should remain the priority of Ukraine’s diplomatic efforts from the moment it is presented to Russia and on. Nobody knows how the international situation will evolve and the balance of geopolitical powers in the world will shift. Meanwhile, the obvious and unjustified delay in the preparation of Ukraine’s consolidated claim undermines the authority of the Ukrainian government and the geopolitical position of Ukraine. In the eyes of Ukrainian society and the international community, this points to Ukraine’s acceptance of all the consequences of the Russian aggression, as well as to the lack of will to demand the restoration of Ukraine’s territorial integrity or the reimbursement of the losses inflicted by the Russian aggression.
An official consolidated claim of Ukraine against the Russian Federation as aggressor state, legally documented, made public in Ukraine and distributed in the world, would mobilize society, increase support of the government, raise its approval ratings, reinforce the unity in Ukraine’s foreign policy vector, and prop up Ukraine’s position in the talks with Russia, Western partners and international financial institutions.
The refusal of Russia to consider the consolidated claim would create additional legal ground for the extension and escalation of international sanctions introduced by Western democracies.
Soft sanction policy
The fact that Ukraine’s leadership lacks a clear and coherent legal stance in repelling Russia’s armed aggression or dealing with its consequences leads to a situation where the country does not have an efficient sanction policy against aggressor state.
The Cabinet of Ministers has failed earlier to take steps to adequately and consistently apply sanctions against Russia, blaming this on the lack of a respective law. This explanation does not stand up to scrutiny. Under international law, a state that faces aggression has the right to immediately apply wide-scale sanctions against aggressor state with or without respective laws.
Almost six months into Russia’s armed aggression, on August 14, 2014, the Verkhovna Rada passed the Law on Sanctions (No16644-VII), initiated by the Cabinet of Ministers. Later that month, then-Prime Minister Arseniy Yatseniuk presented the Strategy of the Government’s Program Actions. Among other things, it envisaged “sanctions against the aggressor, including against individuals and legal entities of the Russian Federation that pose a threat to the national interests, security, sovereignty and territorial integrity of Ukraine”.
However, sanctions against Russia were not introduced until a year after that when the NSDC passed a decree On the Application of Individual Special Economic and Other Restrictive Measures (Sanctions) on September 2, 2015, and the President enacted it with Decree No549/2015 on September 2, 2015. The NSDC passed only five similar decisions between then and the beginning of 2017. They cover a mere 335 individuals and 167 legal entities.
The flaws of the Law on Sanctions prevent both the Cabinet of Ministers and the NDSC from passing decisions on sectoral sanctions. This right has, for no just reason, been included in the scope of the Verkhovna Rada’s powers. This makes the application of sanctions against the wrongdoing state virtually impossible. The Law on Sanctions overlooks the generally accepted norms of customary international law, diplomatic law and the law of international treaties in that it does not entail the option of breaking or suspending, in full or in part, diplomatic and consular relations, as well as international treaties with the aggressor state. As a result, treaties between Ukraine and Russia on military technical cooperation have long remained effective and enacted. The Treaty on Friendship, Cooperation and Partnership between Ukraine and Russia remains in force today: it qualifies Russia as Ukraine’s strategic partner and stipulates that the two countries share a transparent border and a visa-free regime.
As Ukraine’s leadership has been lacking a clear stance on the application of international sanctions against Russia, the Verkhovna Rada passed the scandalous Law On the Establishment of the Free Trade Area Crimea and the Details of Economic Activities on the Temporarily Occupied Parts of Ukraine on August 12, 2014. It thus created legal base for the strengthening of the Russian occupation authorities instead of applying economic blockade of the territory grabbed by Russia.
Civic activists, supported by the Right Sector, Azov Civil Coprs and members of the Azov battalion responded by launching a civic blockade of the occupied Crimea. The initiative was to block the transfer of cargo to Crimea from Ukraine and to Ukraine from Crimea. Supply of electricity to Crimea was suspended too. That blockade started on September 20, 2015, and ended on January 17, 2016, as the Cabinet of Ministers’ Decree No1035 On Restriction of Delivery of Certain Goods, Works and Services from the Occupied Territory of Ukraine to the Rest of the Territory, and Back came into force. This decree is dated December 16, 2015. Subsequently, the blockade turned into the monitoring of how the Government decree was being enforced. However, the restriction it introduced did not cover the supply of electricity and the goods of strategic importance to the economy and security of the state.
The decree was passed under the pressure of the public rather than as a manifestation of a consistent sanction policy against Russia. It introduced partial restrictive measures rather than full-fledged sanctions. They covered not the aggressor state as a whole and not the entire occupied territory of Ukraine, but only part of it.
Later, on August 31, 2016, the Cabinet of Ministers under Volodymyr Groisman passed the Concept of the State Program to Restore and Build Peace in Eastern Ukraine (enacted with decree No892-р) and the Action Plan to Implement Some Basics of the State Domestic Policy On Certain Areas of Donetsk and Luhansk Oblasts where State Authorities Temporarily Do Not Exercise Their Functions (decree No8-p dated January 11, 2017). However, both the Concept and the Plan speak of the “armed conflict” that is taking place in some areas of Donetsk and Luhansk Oblasts, not of the aggression by the Russian Federation that results in the temporary occupation of Crimea and parts of Eastern Ukraine. They make no mention of the Autonomous Republic of Crimea or the city of Sevastopol occupied temporarily by Russia, nor do they qualify the parts of Donetsk and Luhansk Oblasts that are grabbed by Russia as temporarily occupied territories. Instead, they describe them as “regions where the state authorities temporarily do not exercise their powers”.
It is obvious that the conceptual basis for the documents passed by the Cabinet of Ministers fits into the key thesis of the Russian authorities and propaganda: it claims that Crimea is the “inherently Russian land”, while the conflict in Eastern Ukraine is an internal one in which Russia is not involved.
The Concept justifies and the Plan envisages extensive cooperation with the aggressor, on its terms and in the interests of those Ukrainian oligarchs who earlier played into the hands of the Russian expansion and aggression in Eastern Ukraine, and wish to continue their business on the territories occupied by Russia at any price.
These documents undermine Ukraine’s legal positions in the issues of Russia’s responsibility for the armed aggression and of the restoration of Ukraine’s territorial integrity. They essentially are the opposite to the concept of sanctions against the aggressor state.
The blockade and the president
Ukrainian politicians who are dependent on the oligarchs have managed to block the consideration of the draft law on the temporarily occupied territory of Ukraine (hopefully, this blocking is temporary as well). Yet, the government is forced to react to the fact that the majority of Ukrainian society rejects trade with the occupied territory.
On February 16, 2017, the NSDC passed the Decision on Urgent Measures to Neutralize the Threats to the Energy Security of Ukraine and Reinforce the Protection of its Critical Infrastructure. It was enacted on that same day with the Presidential Decree No37/2017. Among other things, it mandates the Cabinet of Ministers to urgently “approve the procedure for the movement of goods to the area or from the area of the ATO in Donetsk and Luhansk Oblasts, and the list of goods whose movement is banned”. On March 1, 2017, the Cabinet of Ministers passed the respective decision “banning the movement of goods to the temporarily uncontrolled territory and from the uncontrolled territory, other than foodstuffs and medicines that are part of humanitarian cargo, or goods and products that are necessary to continue the operation and maintenance of steelworks, mining, coal extraction and energy industries, and the objects of critical infrastructure”.
The civic blockade of trade with the occupied territories, the forced seizure of Ukrainian enterprises by the Russian occupation authorities, and the escalation of aggressive actions by Russia in Eastern Ukraine pushed the NSDC to pass two decisions on March 15, 2017 (enacted on the same day by Presidential Decrees No62/2017 and 63/2017) On Urgent Additional Measures to Counteract Hybrid Threats to the National Security of Ukraine and On Special Economic and Other Restrictive Measures (Sanctions).
However, the President of Ukraine criticized harshly the leaders and activists involved in the blockade at the NSDC meeting. He blamed a number of supportive political forces of attempts to “get rid of part of the Donbas” and “legalize” this intent with the law on the temporarily occupied territories. He also stated that “such a law ruins the Minsk process” and “will bury international sanctions against the Russian Federation as they are tied to Minsk”. As an alternative option, President Poroshenko suggested that a law on the restoration of Ukraine’s territorial integrity should be prepared, considered and approved.
Regardless of our opinion about those involved in the civic blockade of parts of the Donbas, it is important to realize that their actions are a reaction to the government’s inability to construct policies towards Russia as aggressor state, based on a clear and consistent legal stance that is in line with the interests of the state rather than of individual oligarchs or oligarch groups. A timely and clear definition of Russia’s armed attack against Ukraine as a criminal aggression and the introduction of the legal regime of martial law should have been accompanied by quick decisions to ensure counteraction to threats in various sectors of the economy and energy first and foremost. It was well known by then that nearly 45% of thermal power plant units in Ukraine worked on anthracite coal. Shortly after the Russian aggression began, the mines delivering virtually all anthracite coal ended up in the occupied parts of Donetsk and Luhansk oblasts. Ukraine’s authorities should have foreseen that scenario and started to prepare for it properly.
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By now, as Ukraine is seeing the fourth year of its fight against the Russian aggression, those in power should have solved the issue of fuel diversification, including the supply of anthracite coal for TESs and nuclear fuel for nuclear power plants, and end the dependence in that on Russia and its occupation authorities. This has not been done despite special decisions by the NSDC, including the one dated November 4, 2014, On Ensuring Energy Security and Urgent Measures to Ensure Stable 2014/15 Heating Season, and the subsequent decision dated May 6, 2015, to monitor the enforcement of the first decision and additional measures to ensure that Ukrainian consumers are supplied with energy sources.
According to the media, the President’s criticism for that focused on the political forces that initiated the Law on the Temporarily Occupied Territory, not the officials responsible for the failure to implement the abovementioned decisions by the NSDC. Obviously, the texts of the draft versions of that law (both the one registered initially, and the compromise version approved by the working group) are not structured properly and are not completed conceptually. They define the legal status of the temporarily occupied territory only fragmentarily and have significant gaps. However, not for a moment they hint at the prospect of using this law as an instrument to legitimize Ukraine’s rejection of any of its occupied territory.
Two laws, one goal
Draft Law on the Temporarily Occupied Territory of Ukraine should be seriously revised and passed as soon as possible, not condemned. The author of this article has drafted a new version of such draft law that is available on the website of Tyzhden in Ukrainian. It is neither to replace nor to contradict draft law on the restoration of territorial integrity of Ukraine as suggested by the President. Nor is the latter an alternative to the draft law on the temporarily occupied territory of Ukraine. Both documents complement one another conceptually. They must perform a uniform function and form common ground for the implementation of the Minsk Accords. However, this implementation should follow the generally accepted norms of international law, the Constitution of Ukraine and our legitimate interests, not the scheme imposed by the aggressor state.
Otherwise, the purposes, functions and the role of these laws are different. The Law on the Temporarily Occupied Territory of Ukraine is to be used in the circumstance of war, while the Law on the Restoration of the Territorial Integrity of Ukraine should be enacted in the environment of peace.
The Law on the Temporarily Occupied Territory of Ukraine should perform the following functions:
1) establish the illegal nature of the fact that the Russian Federation grabbed and keeps by force the temporarily occupied parts of the Ukrainian territory;
2) confirm the sovereign right of Ukraine to restore its territorial integrity within the internationally recognized state borders;
3) establish the procedure for the protection of human rights for the civilian population of the occupied parts of Ukraine, considering the fact that the Russian Federation exercises effective overall control within the occupied territory as aggressor state, while all branches of power in Ukraine are devoid of any possibility to perform their functions there as specified by the Constitution and the laws of Ukraine;
4) regulate Ukraine’s relations with the temporarily occupied territory in the sanction regime, based on the need to guarantee national security in the circumstance of the lengthy armed aggression by the Russian Federation;
5) establish the general procedure for assessing the losses incurred by Ukraine during and as a result of the occupation of its territory.
The Law on the Restoration of the Territorial Integrity of Ukraine should perform the following functions:
1) establish the procedure for ensuring control of the entire length of the Ukrainian-Russian border after the liberation of the temporarily occupied territory;
2) establish the duration and the regime of the transition period that is necessary to deal with the impact of the occupation, restore security for the citizens and rebuild vital infrastructure;
3) introduce a special regime of international human rights protection in the territory liberated from occupation for the transition period;
4) entail the terms and deadlines for the full-fledged restoration of the constitutional and public order on the territory liberated from occupation; and
5) list organizational measures to enforce Russia’s responsibility for the losses Ukraine incurred as a result of the occupation, and to punish the individuals involved in war crimes and crimes against humanity.
The Law on the Restoration of the Territorial Integrity of Ukraine can be applied only after Russia withdraws from the occupied territory. It makes no sense to expect that Russia will voluntarily return to Ukraine the territory it grabbed. Full restoration of Ukraine’s territorial integrity is only possible through wide-scale sanctions that would be applied consistently by Ukraine and the international community of democracies.
The weapon of sanctions
Ukraine’s sanction policy is implemented today through individual restrictions against a relatively short list of Russian individuals and legal entities, as well as the recent introduction of some restrictions in trade, but only with the temporarily occupied territory.
Meanwhile, a significant amount of Ukraine-Russia trade remains. Based on the official data from the State Statistics Bureau, Ukraine exported goods worth $ 3.2bn (8.9% of Ukraine’s total exports) to Russia over 11 months of 2016, while importing $ 4.6bn worth of goods (13.1% of total imports). In other words, Ukraine’s key enemy remains its key trade partner. In 2016, Russia abolished the free trade regime with Ukraine, imposed full ban on the transit of goods from Ukraine to the third countries through the Russian territory, and introduced an embargo on many Ukrainian goods. This resulted in nearly $1bn-worth of direct financial loss for Ukraine, said Ukraine’s Trade Representative Natalia Mykolska.
Out of the vast number of bilateral agreements regulating Ukraine-Russia relations in various fields, only 33 have been terminated, including six broken off by Russia.
Ukraine’s inconsistent sanction policy against Russia leads to negative consequences:
1) it prevents maximum mobilization of Ukraine’s entire potential, institutions and resources to counter the aggression;
2) it demoralizes the citizens of Ukraine and the personnel of the Armed Forces of Ukraine; 3) it encourages the Russian Federation to continue the aggression;
4) it makes Ukraine vulnerable to Russia’s hostile actions, economic and humanitarian first and foremost;
5) it is used by the Russian propaganda to persuade the international community that what is happening in Ukraine is an internal conflict;
6) it makes Ukraine’s partners doubt the need to provide it with assistance, including armament; and
7) it serves as an argument against tougher sanctions on Russia by the international community.
It is reasonable for Ukraine’s political leadership to stop relying on tactical decisions shaped by specific circumstances that benefit oligarch clans first and foremost. Instead, it should build a national strategy for the protection of the country’s and society’s interests in the circumstances of the Russian armed aggression and start applying wide-scale and consistent sanctions against the aggressor.
This complex task takes efforts and time. But it must be accomplished, and the sooner it happens, the better. A closer look at the way Russia treats Ukraine shows that Russia always used the mechanisms of cooperation established between the two states, including in economy, energy, military or humanitarian domains against Ukraine. Numerous wars in gas supply, trade, information space and more, which Russia has been conducting against Ukraine (ignoring the economic cost for the sake of geopolitical purposes), prove this.
Therefore, Ukraine should aim at maximum diversification of bilateral relations with countries all over the world to decrease its dependence on Russia in all spheres. As long as Russia’s armed aggression against Ukraine continues, the relations with Russia should be frozen as much as possible and remain in the regime of sanctions.
At the peak of World War II, the anti-Hitler coalition states were planning the post-war order and shaping their stances on the responsibility of the Nazi Germany, its European satellites and Japan. For this purpose, among others, the Special State Commission for Recording and Revealing the Crimes of Germany Fascist Occupiers and Their Allies, and the Damage Done to Citizens, Kolhozs, Civic Organizations, State Enterprises and Institutions of the Soviet Union was set up with the USSR Supreme Council Decree dated November 2, 1942. The Commission collected information about Nazi crimes in the war zones and in the territories temporarily occupied by them, and continued its work until 1951. Based on detailed instructions, it compiled official acts on the committed crimes and the damage done. Sometimes, the Commission published reports on its work. The materials it collected were later used to assess war reparations the Soviet Union received after WWII was over, and during the Nuremberg trials over the top German criminals.