War or imitation of war: A legal view

The trade blockade of ORDiLO, the parts of Donetsk and Luhansk Oblasts occupied by the Russian Federation, that was started February 25, 2017 by veterans of the Ukrainian Armed Forces and people from patriotic civic organizations, has caught the attention of all of Ukrainian society, its politicians and expert circles. After the Verkhovna Rada’s Committee for State Construction, Regional Policy and Local Government refused to support a comprehensive Bill “On the temporarily occupied territory of Ukraine,” which had been drafted after many months of debate and discussion, deputies from the Samopomich faction, the authors of this law, joined the blockade, along with a slew of independent MPs.

The deeper reason behind the ORDiLO blockade is widespread discontent among a wide swath of Ukrainian society with the political leadership’s inability—more likely unwillingness—to carry out a consistent policy towards the Russian Federation as the aggressor and their inability to articulate a clear legal position for the country regarding Russia’s liability under international law for its aggression against Ukraine.

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Terrorism or aggression?

Over 2014–2016, the Verkhovna Rada adopted a series of important resolutions:

• The Declaration “On the battle to liberate Ukraine” dated March 20, 2014.
• Law #1207-VII “On protecting the rights and freedoms of citizens on temporarily occupied territories of Ukraine” dated April 15, 2014.
• Announcement #1217-VII “On the start of international negotiations to de-escalate the situation around Ukraine” dated April 16, 2014.
• VR Resolution #129-VII “On an appeal from the Verkhovna Rada to the United Nations, the European Parliament, the Parliamentary Assembly of the Council of Europe, the Parliamentary Assembly of NATO, the Parliamentary Assembly of the OSCE, the Parliamentary Assembly of GUAM, the national legislatures of all the states of the world to recognize the Russian Federation as an aggressor state” dated February 27, 2015.
• VR Resolution #145-VII “On the Verkhovna Rada of Ukraine’s Declaration ‘On Ukraine’s recognition of the jurisdiction of the International Criminal Court regarding crimes against humanity and war crimes by top officials in the Russian Federation and the leadership of the terrorist organizations known as "DNR" and "LNR", which have had particularly heavy consequences and mass deaths of Ukrainian citizens,’” dated February 4, 2015.
• VR Resolution #462-VII “On the Verkhovna Rada of Ukraine’s Declaration ‘On Ukraine’s derogation of certain commitments established in the International Covenant on Civic and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” dated April 21, 2015.
• VR Resolution #1014-VIII “On the Verkhovna Rada of Ukraine’s Appeal to the parliaments of other countries and parliamentary assemblies of international organizations to condemn the ongoing aggression of the Russian Federation against Ukraine” dated February 18, 2016.

The provisions of these legal acts were suitable to become the conceptual basis for the President of Ukraine, the National Security Council and the Cabinet of Ministers to draft a general legal model to repel Russia’s armed aggression and eliminate its consequences. They could have become the foundation, not just for establishing a clear political course regarding the aggressor but also for concentrating diplomatic efforts to establish a broad-based anti-Putin coalition.

But Ukraine’s government failed to do this.

Not long ago, the fourth year of Russia’s armed aggression against Ukraine began. Despite this, the country still maintains diplomatic relations with the aggressor, and the armed repulsion of Russian aggression continues to be based on Law #638-IV “On the war against terrorism,” dated March 20, 2003, which was brought into effect by acting President Oleksandr Turchynov by Presidential Decree #405/2014 “On urgent measures to overcome the terrorist threat and preserve the territorial integrity of Ukraine” dated April 14, 2014.

Even as this Decree was being approved, it was clear that Ukraine was not experiencing sporadic terrorist attacks of some terrorist organization but was being subjected to a planned, large-scale armed attack by the Russian Federation. As a report from the Border Service of Ukraine and information from the Security Bureau of Ukraine testified, its initial phase began in Crimea back on February 20, 2014.

Russia’s armed aggression against Ukraine continues to this day and there are no signs that it will end any time soon.

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Don’t talk about war

Given this, the legal basis for an armed resistance against the Russian Federation as the aggressor state is Art. 51 of the UN Statutes and Law of Ukraine #1932-XII “On the defense of Ukraine” dated December 6, 1991. Art. 1 of this Law repeats the definition of armed aggression established in Resolution #3314 (XXIX) of the UN General Assembly “Definition of Aggression” dated December 14, 1974, which covers all the elements of Russia’s armed attack on Ukraine. Art. 4, “Resistance to armed aggression against Ukraine” states that “In case of armed aggression against Ukraine or the threat of an attack on Ukraine, the President of Ukraine shall make the decision to call a partial or full mobilization, to declare a state of war in Ukraine or in specific areas of the country, or to use the Armed Forces of Ukraine or other military formations established in accordance with Ukrainian law, submits such decisions to the Verkhovna Rada for endorsement or approval, and also introduces in the Verkhovna Rada a statement declaring a state of war.

Having been elected President of Ukraine on May 29, 2014, Petro Poroshenko has not made use of all his powers and has not ensured the change of Ukraine’s armed resistance against Russian aggression from an Anti-Terrorist Operation to repulsing the armed aggression of the Russian Federation, in accordance with Points 1, 17 and 20 of Art. 106 of the Constitution of Ukraine, Art. 4 of the Law “On the defense of Ukraine,” and Law #1647-III “On the legal conditions for martial law” dated April 6, 2000. Moreover, to this day, the resistance to Russia’s armed aggression is being run by the head of the SBU’s Anti-Terrorist Center rather than the Commander-in-Chief of the Armed Forces of Ukraine.

Just like three years ago, official documents, statements from top politicians and government officials, and reports in the media continue to refer to Ukraine’s self-defense against Russia’s armed aggression is called the “ATO,” those fighting against Russia and its proxies are called “participants in the ATO,” the theater of war against the aggressor is called the “ATO zone,” and Russia’s irregular armed forces are called “militants,” “terrorists” and so on.

This approach denies the reality of the Russian Federation’s armed aggression against Ukraine and is offensive to the personnel serving in Ukraine’s Armed Forces. It attempts to fool the domestic population, confuses the international community, and undermines Ukraine’s legal position as a state when it comes toestablishingtheculpability of the aggressor state at the international level.

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The fact that, to this day, the Law “On fighting terrorism” is being used as the legal justification for resisting Russia’s armed aggression has created the legal basis for individuals and legal entities in Ukraine who have been victims of Russia’s aggression to sue the Ukrainian government rather than the Russian one. As of now, Ukrainian courts are considering nearly a hundred such lawsuits and have already ruled that the State Budget of Ukraine must pay compensation to the plaintiffs.

One Ukrainian lawyer and human rights advocate, Stanislav Batryn, tried to rectify this paradoxical situation. Back on August 29, 2014, he turned to the Shevchenko District Court in Kyiv with a demand that Russia’s armed aggression against Ukraine be recognized. After considerable procrastination in the court’s consideration of the case, the suit was finally rejected on May 12, 2016, on the grounds that the armed aggression of the Russian Federation against Ukraine is a generally recognized fact and that establishing this fact does not in any way affect the plaintiff’s rights and interests. This decision was upheld by the Appellate Court of Kyiv on August 6, 2016, effectively concurring with the absurd arguments of the lower court.

It’s worth noting that when the suit was in the appeals court, an official from the Foreign Ministry clearly stated that his agency supported the plaintiff. Nevertheless, the court took the opposite position, which was argued on behalf of the Presidential Administration by Mr. Hutsol, a staffer at the Administration’s Main Department for Legal Policy.

These court rulings are not final, but they get in the way of formulating a single legal position in terms of legally defining the actions of the Russian Federation as armed aggression and prevent the establishment of clear legal grounds for protecting the rights of Ukrainian citizens at the cost of the attacking state, not the state being attacked.

Counterattack

Lately, the Ukrainian press, Ukrainian experts and even some officials are referring to Ukraine’s armed resistance to Russia’s external aggression in Donetsk and Luhansk Oblasts more and more as “armed conflict” or even as “the conflict in eastern Ukraine.” This is creating the basis for confirming a key argument put forth by the Russian government and Russian propaganda: that what is going on in eastern Ukraine is a domestic war in which the Russian Federation has absolutely no part.

It’s easy to see how this approach removes the issue of Russia’s international culpability for armed aggression against Ukraine and justifies those who are willing to betray the national interest in order to rebuild relations with Russia. It also makes clear why the position of those who favor peace with Russia at any price is dangerous and immoral. As we enter the fourth year of Russia’s aggressive war against Ukraine, more than 30,000 Ukrainian citizens have been killed or injured, nearly two million persons were forced to leave their homes and become internally displaced persons, and a large part of Ukraine’s territory is under occupation.

Meanwhile, violations of human rights are taking place on a mass scale in the occupied territories, as are war crimes and crimes against humanity. The robbery and illegal use of private property belonging to IDPs continues, as does the wholesale theft of state property. As a result, Ukrainian society and the Ukrainian state have suffered colossal moral and material losses and damage.

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A modest proposal

Under the circumstances, a proposal that has been brought up more than once, including by TheUkrainian Week, remains relevant: to establish the post of Government Ombudsman or a special interagency body to counter and eliminate the consequences of Russia’s aggression against Ukraine and to empower this individual or agency to handle a number of key functions:

• coordinate efforts among central executive bodies to collect, analyze and draw conclusions regarding legal evidence of aggressive acts against Ukraine;
• improve and expand the regulatory base for confirming the Russian Federation’s culpability in international law as the aggressor state by amending and expanding existing Cabinet Resolutions and Laws; draft new framework laws “On compensating for damages to the country by the aggression of the Russian Federation” and “On the punishment of physical persons for the crime of aggression, crimes against humanity and war crimes committed during the Russian Federation’s aggression against Ukraine;”
• coordinate the work of CEBs to establish the extent of material and non-material damages inflicted on Ukraine by the aggression of the Russian Federation;
• prepare a consolidated lawsuit on behalf of Ukraine, as a state that has suffered from aggression, against the Russian Federation as the aggressor state;
• prepare proposals for international measures to effectuate Russia’s culpability in international law as the aggressor state;
• coordinate and provide guidelines for the actions of CEBs in compensating damages inflicted upon Ukraine, its commercial entities and its citizens as a result of the act of aggression, including through appeals to Ukrainian courts, the European Court of Human Rights, international judicial bodies, and to the courts of other states;
• draft proposals regarding sanctions against the Russian Federation as the aggressor state, through the auspices of applicable international organizations; coordinate measures to implement such propositions;
• collaborate with law enforcement agencies with the goal and in the context of filing criminal cases against physical and legal persons for crimes of aggression committed and for the damages caused by such actions;
• coordinate measures whose aim is to bring to justice, through foreign judicial bodies and international courts, those individuals responsible for planning and carrying out the crime of aggression and other crimes connected to this;
• draft proposals for measures to restore Ukraine’s sovereignty over its temporarily occupied territories;
• draw up proposals for measures in response to hostile acts by the Russian Federation in economic relations and in bilateral trade relations, and to other hostile acts by the RF that are not related to or indirectly related to its aggression against Ukraine, both in bilateral relations and in the context of applicable international economic organizations; coordinate measures aimed at implementing such proposals;
• ensure interagency coordination and cooperation with international organizations with the aim of countering anti-Ukrainian propaganda from the Russian Federation and forming a positive image of Ukraine in the international arena.

This proposal for an approach to countering Russian aggression is in line with international law and international practice in terms of models for bringing to justice states that are in violation of international law. It will also foster greater effectiveness in defending the national interests of Ukraine. However, Ukraine’s political leadership continues to ignore such proposals.

Judiciary matters

Instead, they are busy trying to persuade Ukrainians that they will win their cases in international courts. As of now, Ukraine has filed five lawsuits against the Russian Federation in the European Court of Human Rights and one in the International Court of Human Rights, it has brought a case before the International Tribunal for the Law of the Sea, and it has recognized the binding jurisdiction of the International Criminal Court. None of these lawsuits in international courts is about recognizing the military aggression of the Russian Federation against Ukraine, establishing the culpability of the aggressor state, or determining the form and extent of this culpability, and redressing the damages inflicted upon Ukraine as a result of Russian aggression.

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Even if a ruling favoring Ukraine is handed down by the ICC, it will only establish the culpability of senior officials in the Russian Federation for war crimes and crimes against humanity carried out by them during Russia’s aggression against Ukraine, and the related sentences against them. The ICC will not consider the responsibility of the Russian Federation as an aggressor state.

Ukraine’s suits in the ECHR, the International Court of the UN and the ITLS concern violations on the part of the Russian Federation of individual international agreements, such as the 1950 European Convention onhuman rights and fundamental freedoms, the 1966 Convention on eliminating all forms of racial discrimination, the 1999 Convention on combatting the financing of terrorism, and then 1982 Convention on marine law. These international cases are all limited to establishing the culpability of the Russian Federation for failing to carry out its commitments under variousinternational treaties and conventions during its military aggression against Ukraine, but not actually for its military aggression. The issue of Russia’s responsibility for the crime of aggression itself and for its violation of international humanitarian law will not be considered.

According to the rules of international law, the primary condition for determining the culpability of a state for any actions that are unlawful by international standards is for the state that has had harm inflicted upon it due to this violation of international law to document its claim against the offending state correctly. The same is true of establishing the culpability of a state for military aggression. This means that the first practical step Ukraine must take as a state that has been subject to military aggression on the part of Russia is to prepare a comprehensive claim against the Russian Federation as the aggressor state.

This is an important issue that merits separate consideration in other articles.

Translated by Lidia Wolanskyj

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