1) Understanding of the consequences of the aggression continues. To talk about what consequences the Russian aggression has already identified, would be jumping ahead of time even now. These consequences will be determined by a combination of many factors, first of all – the ability or inability of leading players to draw the conclusions and learn “Ukrainian” lessons.
2) Russian aggression has a historical logic. The crisis surrounding Ukraine cannot pose as the unexpected failure of world politics as something illogical. During 1999-2013 the world was faced with a host of events that ruined principles of international law and the role of the UN Security Council in the settlement of conflicts (Yugoslavia in 1999, Afghanistan in 2001, Iraq 2003, Kosovo 2008 Russian-Georgian war of 2008, Libya 2011 and fuelling the conflict in Syria). It should be noted, that after Russia attacked Georgia in 2008, the country did not get appropriate reactions or international isolation, but also restarted the relations with the United States. The aggressor was forgiven.
3) Russian aggression against Ukraine had 3 “waves”. The military occupation of Crimea should be considered as the first “wave” of the Russian aggression. The second “wave” should be considered the first acts of aggression in the East of Ukraine, namely the process of creating the “LNR” (Luganska Narodna Respublika – edit.) and “DNR” (Donetska Narodna Respublika – edit.), which combined with sent irregular gangs, groups and mercenaries. The third “wave” should be considered a direct invasion of the regular armed forces of Russia in the East of Ukraine since September 2014.
4) The RF (Russian Federation – edit.) attempted to justify the aggression of the revolution. Russia insisted on:
- the legitimacy of Yanukovych,
- absence of effective governance in Ukraine in the post revolution period as a result of the so-called “coup”,
- the presence of a steady threat for Russian-speaking citizens of Ukraine/countrymen.
It is obvious that the Russian side arguments did not stand up to any critics of our constitutionalists. Yanukovych from the very beginning was the “illegitimate inviting agent” (in accordance with paragraph 23 of article 85 of the Constitution of Ukraine), and therefore had no right to invite Russian troops on the territory of Ukraine. Regarding the threat to Russian-speaking citizens of Ukraine, no reputable international institution said about human rights violations in Crimea or in Ukraine. Under such conditions, reference to protection of citizens/humanitarian intervention were unfounded.
5) Russia chosen an inconsistent strategy about the new reality in Ukraine. In its statements, Russia said that is not bound by a number of international obligations, in particular, the Budapest memorandum on security guarantees to Ukraine. Russian argumentation was worthless as according to the decision of the UN International Court of Justice in the Gabchikovo-Nadmarosh case in 1997 clearly indicated – the revolution or the change of the political regime is not the reason for change of international obligations. Moreover, Russia did not severe diplomatic relations with Ukraine and did not recall its international legal recognition.
The military occupation of the Autonomous Republic of Crimea
6) «The Crimean referendum» is illegal from the point of view of the national law. The “Referendum” was held in violation of the Constitution of Ukraine, law of Ukraine “About the all-Ukrainian referendum” and the law of Ukraine” About local government in Ukraine “. This is also confirmed by the decision of the Constitutional Court of Ukraine 2014 regarding the inconsistencies of the referendum of the Constitution of Ukraine.
7) «The Crimean referendum» is illegal from the point of view of international law. The “Referendum” was held in the face of Russian aggression against Ukraine in accordance with clause a, b, d, and g the General Assembly Resolution on the definition of aggression, 1974, that is, on behalf of a State of armed bands, groups, irregular forces or mercenaries who carried out the use of armed force (forced capture of the authorities of Crimea). The absence of a fact of resistance does not abolish the Act of aggression (it follows from article 2 of the Geneva Conventions of 1949). The fact of the participation of the Russian military in a special operation with the return of Crimea was admitted by Vladimir Putin. 27 March 2014 UN General Assembly with 100 votes approved the resolution 68/262 “The territorial integrity of Ukraine”, which recognized “the kinship of the referendum.” The “Referendum” was held in violation of international standards on international observers, the duration of preparing (20 days), transparency and freedom of agitation. The question of “referendum” on the Ukrainian and Russian and Crimean Tatar language differed, because in the first case it included the term “reunification”, and in the second – “joining”. “The referendum could not be a form of implementation of the principle of self-determination of Nations, because the subject of this self-determination is the Crimean Tatars, which already had autonomy. The position of Ukraine on the AR of the Crimea was in various forms supported by the G7, the European Union, the Council of Europe, NATO, UNSC, OSCE, the International Civil Aviation Organization (ICAO), the individual states.
8) Russia carried out a military occupation of the Crimea. The fact of the military occupation is confirmed by the norms of international humanitarian law and to the conclusion of the UN International Court of Justice in the case concerning the legality of the construction of the wall in the occupied Palestinian territory: “ the Territory is considered occupied when it was under the control of the army of the enemy. ” Control takes place.
9) Since the beginning of the military occupation of the Crimea, Ukraine and Russia are in a State of the international armed conflict. International armed conflict exists as a result of committing an act of aggression against the Crimea.
10) The RF shall bear full responsibility for the crimes committed by it in the conditions of military occupation. A terrible situation with human rights in the Crimea under conditions of military occupation has been confirmed by the reports of the United Nations, Amnesty International, Human Rights Watch, Freedom House. The fact that the responsibility for human rights in the occupied territory falls on Russia, confirmed cases of the European Court of human rights, in particular, Ilashku and others v. Moldova and Russia, where for the RF was recognized “responsibility for the observance of human rights in Transnistria”.
The international armed conflict in the East of Ukraine
11) The Russian Federation committed an act of aggression in the East of Ukraine, in particular, in accordance with clause a, b, c, d, e and g of resolution at the UN “on the definition of aggression” of 1974. In the world Russia’s actions are recognized as military aggression/acts of aggression and interference in the internal affairs of Ukraine (Council of the EU, NATO, UN, PACE, etc.).
12) Case of “Nicaragua against the United States” is a legal basis for international legal evaluation of the actions of the RF on the territory of Ukraine. In the context of the case, “Nicaragua”, you can deduce that:
- ” interference in internal affairs “should be considered” training, weapons, supplies, finance, food and other aid “,
- illegal flights are the violation of the sovereignty of the State,
- the need for compensation of losses.
On the basis of this case you can also argue that the very fact of sending armed groups and the provision of material assistance is the armed attack on Ukraine, confirming the fact of the aggression.
13) The main tool of the Russian aggression became the created “LNR” and “DNR”, which are the separatist formations and terrorist organizations. The “DNR” and the “LNR” are illegal under Ukrainian legislation on local self-government and fall under art. 110 of the Criminal Code of Ukraine “Encroachment on sovereignty territorial integrity.” The “DNR” and the “LNR” are terrorist organizations (in accordance with article 258 of the Criminal Code of Ukraine) as a result of committing war crimes and crimes against humanity. One of the facts of the Russian aggression is creating the “LNR” and the “DNR”, holding of the illegal “referendums”, where Russian armed soldiers voted. In order to action this on the territory of Ukraine, there were sent exiled reconnaissance-sabotage groups, led by staff officers of the General staff of the armed forces from the RF.
14) The “LNR” and the “DNR’’ are the Government authorities of the RF and act as official representatives of the Government of the RF. Between the “LNR”, the “DNR” and Russia there is a real connection in the form of control, management and planning. There is plenty of evidence of the provision of the “LNR” and the “DNR” military, logistic, economic and financial support of the RF, in particular by sending illegal “humanitarian convoys”. Based on the case of Bosnia and Herzegovina against Serbia 2007 you can prove the existence of an effective control of the RF on the “LNR” and “DNR” (“the effective control over the activities, i.e. directly give them instructions and guidance on planning and conduct of operations”). On the basis of the case of the International Criminal Tribunal for the former Yugoslavia in the case of Dusko Tadic can be proved the presence of the General control of the RF on the “LNR” and the “DNR” (“total control over activities, such as finance, arming, training”). Effective or overall control indicates that the “LNR” and the “DNR” are the official authorities of the RF. The actions of the “LNR” and the “DNR” should be considered as the actions of the regular army.
15) Since the beginning of the aggression in the East of Ukraine our State and Russia are in a State of an international armed conflict. On the basis of the decision of the International Criminal Tribunal for the former Yugoslavia in the case of Dusko Tadic, and in the case of Boskoskì (“features of armed conflict is the Organization of the armed forces, the duration of the clashes, the territory of the clashes and their intensity”) it can be argued that the international armed conflict in the East of Ukraine is what the “DNR” and the “LNR” advocated by the authorities of the RF, only confirms this conclusion.
16) Minsk agreements currently are the legal basis for the settlement of the conflict in the East of Ukraine. These agreements initially had the status of a modus vivendi (informal agreement between parties to a confrontation), i.e. they were the political declaration. The State continued to consider international armed conflict counter-terrorism operation and negotiate with State aggressor. Ukraine recognized the Russian State was the aggressor, but not introduced martial law. “Hybrid” war caused “hybrid” Minsk arrangements and “hybrid” Minsk diplomatic process. Minsk-2 was frame worked and questionable from the point of view of international law. Beside this, all changed after approval of the text of the Minsk-2 by the Resolution of UN Security Council 2202. From the time of the adoption of this Resolution, the text becomes mandatory legal force.
17) The RF actions against Ukraine is the basis for the Russian State and its senior officials to international liability. The application of mechanisms within the framework of UN Security Council (recognizing Russia is the aggressor and use forced or military activities against it) are looking very unpromising in the view of “bloody” Russian veto right. More realistic is the application of the mechanism of UN Security Council resolution “Unity for peace” (Elimination of the aggressor from the meeting by voting in 3/4, i.e., 129 votes, the UN General Assembly). Separately, it is worth noting that the General Assembly can take a political decision on recognition of Russia the aggressor.
18) Ukraine has a wide range of possibilities for claims against Russia to international courts. Ukraine can apply to the UN International Court on the basis of:
- a) of the International Convention for the Suppression of terrorist financing 2001,
- b) of the Convention against torture and other cruel, inhuman or degrading punishment and treatment types, 1984,
- c) of the International Convention on the Elimination of all forms of racial discrimination of 1965 (Crimean Tatars),
- d) of the International Convention for the Suppression of terrorism, the bombings in 1997. ,
- e) of the Convention on International Civil Aviation of 1944 in the context of the downing of Malaysian flight MN17 Boeing.
Promising is the application of the mechanism of the advisory opinions of the International Court of Justice (on questions of Russian aggression in the East of Ukraine or the illegal occupation of the Crimea). Ukraine may initiate proceedings in the International Criminal Court, the European Court of human rights, the International Tribunal of maritime law, Permanent Arbitration/Arbitration Court in The Hague, in the High Court of London (as “the debt dispute”) and in the framework of the special procedures of the Council of Europe, the OSCE and others.
Global conclusions with the “Ukrainian aftertaste”
19) ” Ukrainian precedent” of hybrid Russian aggression led to the appearance of “Ukrainian lessons”. These “lessons” formed the basis of the destructive part of the crisis in international law. This crisis demonstrated that power governs the key “geopolitical” relations between States today and not the law.
20) The world continues to be separated between those countries and leaders that respect international law, and those who despise it. Russia continues to say that it respects and even rescues the international law, while its leader and his crimes earned the verdict of the International Tribunal. Russia broke about 300 international agreements and remains practically unpunished.
21) The crisis of international law means the unofficial review of international obligations of the States one for another, including Russia. The world is entering the phase of chaos in strengthening international relations against the background of decreasing their safety, threatening the overall “war of all against all”.
22) Today’s world faces the challenge of international legal reality. Putin challenges the fundamental basics of the Western foreign policy. Kremlin demands for itself the status of an equal participant in international politics. Manifestation of this recognition, according to Moscow, has become outdated principle of the cold war, namely the allocation of spheres of influence. This distribution of Ukraine, according to the Kremlin, relegated to the role of a dependent Russian satellite.
23) An artificial crisis of the system of international law on the territory of Ukraine means a gradual “dissociation” and the actual dismantling of the system of international relations, which was established after the second world war. What is happening in Ukraine, is a matter of basic principles that govern relations between States in the 21st century. Ukrainian-Russian confrontation is not the next local conflict; it marks the beginning of a change of “the international rules of the game”.
24) Nowadays Ukraine is forced to play the role of a subject in world politics with a significant dependence on other international players. Ukraine did not use its brilliant geopolitical and geostrategic potential. In this regard, in 2013-2016 our State did not have full opportunities to realize its geopolitical project. Ukraine found itself in the so-called interconnecting periphery or zone of geopolitical turbulence. Next to this, Russia was unable to fully achieve its goals. Russia failed to destroy the Ukrainian Independent State and Ukrainian prospects.
25) The most effective strategy against Putin’s aggression is the “elimination” of Putin. Such a removal, on the one hand, includes international economic, informational, political, security and legal measures, and on the other is the construction of successful, reformed and economically prosperous Ukraine.
Oleksiy Rohovyk, head of the Free Voice Information Analysis Centre;
Olga Lozova, analyst Free Voice Information Analysis Centre