Abstract
Russia’s full-scale invasion of Ukraine on 24 February 2022 can be seen as a culmination of eight years of its aggression against Ukraine, including its annexation of Crimea in March 2014 and the control of the two ‘People’s Republics’ in Donbas. Before the invasion, the Ukrainian authorities had actively expressed their politico-legal stance on the conflict, using lawfare against the Russian Federation, e.g. at the European Court of Human Rights (ECtHR), the International Court of Justice (icj), and the International Tribunal of the Law of the Sea (itlos). In this context, the paper explores the interplay between Ukraine’s domestic legislation regarding the annexation of Crimea and Russia’s control of the People’s Republics in Donbas prior to the invasion, and Ukraine’s use of lawfare against Russia with a focus on policy and legal coherence. It is demonstrated that, while Ukraine’s lawfare strategy regarding Crimea had been in line with domestic legislation, Russia’s use of proxies in eastern Ukraine and the challenges of the Minsk peace process led to incoherence between Ukraine’s domestic laws and its use of lawfare. Though Russia’s 2022 invasion of Ukraine is a game-changer, both for Ukraine’s domestic legislation and its use of lawfare, the analysis contributes to an understanding of the nexus between domestic and international law in Ukraine prior to the invasion and explores the implications such a nexus will have for Ukraine’s future lawfare against Russia, including the most recent icj case relating to the interpretation, application, and fulfillment of the 1948 Genocide Convention.
1 Introduction
Russia launching an attack on Ukraine on 24 February 2022 can be seen as a culmination of a violation of Ukraine’s sovereignty and territorial integrity lasting eight years, including the annexation of Crimea in March 2014 and support for the unrecognized People’s Republics in Donbas.1 The war quickly led to major consequences both with regard to the conflict parties’ domestic legislation and their policies of international law. The Russian Federation justified its ‘special military operation’ in Ukraine by citing the aim of “preventing and punishing purported acts of genocide” in the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ (‘dpr’ and ‘lpr’) whose independence it formally recognized on 21 February 2021.2 On 16 March 2022, the icj rejected Russia’s submission regarding genocide and ordered it to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”.3 The Kremlin’s rejection of any statement by the icj and the non-acceptance of its preliminary ruling,4 as well as its withdrawal from the Council of Europe,5 signifies not only its disregard of international law and human rights but also poses challenges for the cases against it in international courts. Another notable development has been the de facto failure of the 2015 Minsk ii agreement due to Russia’s recognition of the dpr and lpr.6 The Minsk agreement aimed to pave the way for the reintegration of Donbas into Ukraine and significantly influenced Ukraine’s domestic legislation, but ended up in a severe ‘sequencing and negotiations trap’.7 Despite the de facto termination of the Minsk ii agreement and the fact that the rulings of international courts in new cases against Russia will certainly need to be adapted given that they were based on Ukraine’s preinvasion domestic legislation, major relevant Ukrainian legal acts have remained in force amid the war.
In this vein, it remains timely to explore Ukraine’s international law policy and its efforts to protect its territorial integrity with the help of lawfare prior to the start of the full-scale war and to look at the implications this may have for Ukraine’s proceedings against Russia in international courts. The Ukrainian government’s lawfare website defines the term as “legal confrontation with the Russian Federation” and sees it as one of the components of a broader hybrid confrontation, also touching on the economic and information spaces.8 In terms of its preinvasion lawfare strategy, Ukraine has launched cases concerning various aspects of the situation in Crimea before four adjudicating bodies, namely the International Court of Justice (icj), the International Criminal Court (icc) and the Arbitral Tribunal constituted under Annex vii to the United Nations Convention on the Law of the Sea (unclos), and the European Court of Human Rights (ECtHR). The cases on the events in eastern Ukraine were launched before the icj, the icc, and the ECtHR.9
Amid the multiplicity of legal avenues Ukraine uses to protect its rights, policy and legal coherence is essential for international courts’ consistent legal qualification of the events in Crimea and Donbas. Hereby ‘policy and legal coherence’ not only means coherence between Ukraine’s positions vis-à-vis different adjudicating bodies, but also coherence between Ukraine’s use of lawfare and its domestic legislation on war and uncontrolled territories. The latter aspect matters for the Ukrainian case for several reasons. First, the ‘maternal state’s’ legislation may be used as a source of evidence by international adjudicating bodies. Domestic laws and amendments to them also inform the international community’s conflict resolution efforts – an aspect that is thoroughly examined by international courts.10 Subsequently, domestic legislation may entail provisions that come into conflict either with a state’s strategy to use lawfare or the outcomes of the consideration of cases by international courts. Even more complex legal conflicts may arise amid the lack of coherence between domestic legislation, the international community’s politico-legal conflict resolution efforts, and the outcomes of the activities of the international courts. By providing an insight into Ukraine’s domestic legislation and lawfare, this contribution thus seeks to enrich the research on international law–domestic law nexus in Ukraine and Ukraine’s international law policy prior to Russia’s invasion. More broadly, the paper contributes to the literature on international law policies in the post-Soviet space, as well as the literature on lawfare, in general, and to an emerging literature sub-strand on lawfare in Ukraine-Russia relations.
Against this background, this paper focuses on the interplay between Ukraine’s domestic legislation regarding the annexation of Crimea and Russia’s support for the dpr and lpr in eastern Ukraine (2014–2022) with a focus on legal and policy coherence. While Ukraine’s position on the annexation of Crimea and Sevastopol has been coherent in both legal and policy terms, the situation with the uncontrolled territories in eastern Ukraine used to be highly problematic. Even amid the war, Ukraine’s legislation on the dpr and lpr is frozen between the ‘special status’ and ‘reintegration’ tracks. The former speaks to the ‘dead’ Minsk peace process, while the latter reflects the positions Ukraine presents in international courts. As to the prewar situation, the contradictions between the above tracks could be regarded as creating the potential for the emergence of a ‘troubled nexus’ between Ukrainian domestic legislation and the legal outcomes of the processes it initiated in international courts. Following the outbreak of full-scale war, Ukraine had an opportunity to streamline its positions in international courts and present the annexation of Crimea, Russia’s military support for and recognition of the dpr and lpr, and the invasion as closely interlinked acts of aggression against Ukraine’s sovereignty and territorial integrity committed by the Russian Federation.
2 From the Ukraine Conflict to the Russia-Ukraine War: International Procedures and Domestic Laws
The Ukraine conflict broke out in November 2013 in Kyiv, Ukraine as a response to former President Yanukovych’s refusal to sign the EU-Ukraine Association Agreement (aa). The protests were called the Euromaidan Revolution, incorporating the name of Kyiv’s central square Maidan and the pro-EU sentiment. Following several months of protests that escalated in January/February 2014 due to the violence of state security forces, President Yanukovych fled to the Russian Federation. Subsequently, the parliament’s decree On the Self-Removal of the President of Ukraine from the Exercise of Powers and Scheduling Early Elections of the President of Ukraine of 22 February 2014 gave rise to the change of power.11 The external perceptions of Euromaidan appeared to vary dramatically. While the USA and the EU and its Member States expressed their support of Euromaidan and the protesters, the Russian Federation labeled it a nationalist ‘coup d’état’,12 leading to the alleged violations of the rights of ethnic Russians and Russian speakers.
Such violations were subsequently utilized by the Russian leadership as a justification for taking control of Crimea and the city of Sevastopol in March 2014 and supporting pro-Russian separatists in eastern Ukraine. On 16 March 2014, a ‘referendum’ was held in Crimea, in which the majority of voters allegedly voted in favor of joining the Russian Federation. As reported by the human rights activist and head of the Crimean Tatars Mejlis Mustafa Dzhemilev, the voter turnout at the ‘referendum’ was approximately 30 percent, and 99 percent of Crimean Tatars boycotted it.13 As a result, Crimea and the city of Sevastopol were ‘reunified’ with the Russian Federation as a ‘federal subject’ and a ‘city of federal significance’.14 The majority of United Nations (UN) Member States do not recognize the ‘referendum’ in Crimea, and it is commonly referred to by the UN and other international organizations as being ‘illegally annexed’.15
In contrast to Crimea and Sevastopol, Russia never tried to formally incorporate occupied territories in eastern Ukraine. Instead, in the ‘referenda’ of May 2014, voters allegedly supported the creation of the formally independent dpr and lpr. The ‘referenda’ in both Crimea and eastern Ukraine were marked by falsifications (in some areas, ballots were spread over two or three days, for instance).16 The People’s Republics are not recognized by the international community and, thus, are most commonly referred to in the literature as ‘unrecognized’ or ‘de facto states’.17 Prior to the recognition of the People’s Republics on 21 February 2022, the Russian Federation had pursued a ‘creeping integration’ policy vis-à-vis the Republics, including, inter alia, the policy of ‘passportization’. ‘Passportization’ was utilized by Russia to artificially create the ‘protection of Russian citizens’ and ‘genocide’ arguments it used to justify the invasion.18
As emphasized by Grant, the 2014 annexation of Crimea already represented an immediate assault on the post-World War ii world order, posing a “real risk of a systemic crisis” to this order and signaling the “recrudescence of inter-State violence in pursuit of territorial gain”.19 Furthermore, despite hybridity and definitional challenges, both the annexation of Crimea and Russia’s support for the dpr and lpr were marked by the use of force against Ukraine by the Russian Federation as an aggressor state.20 Nevertheless, it was not until Russia’s invasion of Ukraine on 24 February 2022 that the Russia-Ukraine conflict was recognized worldwide as an international armed conflict or war. The hybridity challenge and the difference between the preinvasion status of Crimea and the dpr and lpr gave rise to a variation in both international procedures and Ukraine’s domestic laws applicable to the situation in Crimea and eastern Ukraine, which will be explored below.
2.1 Crimea and the City of Sevastopol
2.1.1 The International Dimension
As noted earlier, states and international organizations tend to regard Crimea and the city of Sevastopol as ‘illegally annexed’ by the Russian Federation. The act of annexation was widely condemned by the international community, inter alia, by virtue of UN General Assembly Resolution 68/262 “Territorial Integrity of Ukraine” (27 March 2014) and the Conclusions on Ukraine approved by European Council on 20 March 2014.21 Over the period from spring 2014 to the current time, international organizations have repeatedly voiced concerns about the developments in Crimea and the city of Sevastopol, such as human rights violations (including the retention of political prisoners), the construction of the Kerch Bridge and associated environmental consequences, as well as the militarization of Crimea.22 The Russian Federation also used annexed Crimea as a springboard for its invasion of southeast Ukraine.23 Since March 2014, the USA and the EU have maintained and continuously expanded sanctions against the Russian Federation as a response to its annexation of Crimea.24 In contrast to the preinvasion situation with Donbas (discussed below), the de-occupation of Crimea has not been addressed in the context of any form of international negotiations. To fill this lacuna, Ukraine launched a diplomatic initiative entitled “Crimean Platform” in 2021. Operating at different levels, the Platform seeks to provide a strategic vision for the process of Crimea’s de-occupation and to consolidate international actors’ efforts on the ‘Crimean track’.25 Ukraine’s alleged plans to use military force, supported by nato, to reclaim Crimea were used to justify Russia’s invasion of Ukraine, alongside the more prominent ‘protection of Donbas’ argument.26
2.1.2 The Domestic Dimension27
The stance of Ukraine’s domestic legislation vis-à-vis Crimea is presented in the Law of Ukraine On Ensuring the Rights and Freedoms of Citizens and the Legal Regime of the Temporarily Occupied Territories of Ukraine of 15 April 2014.28 In keeping with the Law’s title, Article 1 stipulates that “the temporarily occupied territory of Ukraine” represents an integral part of Ukraine’s territory, where the Constitution of Ukraine and the Laws of Ukraine operate”. In this context, Article 2 of the Law immediately refers to the Russian Federation as an “occupying power”. The recognition of the occupation of the land territory of Crimea and the city of Sevastopol, as well as Ukraine’s internal sea waters and the territorial sea around Crimea, the soils below and the airspace above such territories had led to multifaceted implications for the legal regime of these territories and for human rights protection. In this vein, the Law under study provides for a special regime for citizens to cross the border between mainland Ukraine and occupied Crimea, and also amends the relevant legislation on the State Border Guard Service of Ukraine along with the norms for interviewing individuals intending to cross the border.29 De facto, the border crossing regime comprises two categories of rules: those introduced by the Ukrainian executive (the Cabinet of Ministers) in the respective regulations and those stipulated by the occupying administration. Amid the covid-19 pandemic, the issue of crossing an administrative border became highly politicized, as the Russian leadership almost completely blocked access to the occupied peninsula and boosted its militarization efforts. Second, recognizing Crimea and the city of Sevastopol as “temporarily occupied territories”, the respective Law states the Ukrainian government’s commitment to protecting the rights and freedoms of individuals and Ukrainian citizens in line with the Constitution and the relevant laws of Ukraine.30 The Law also contains special provisions on the observance of individual economic, social, and political rights, including the right to take part in elections according to the Law of Ukraine On the State Register of Voters.31 Moreover, the Law under study contains provisions on the judicial protection of the rights of individuals, such as changing the territorial jurisdiction of cases that were previously considered by Ukrainian courts to the respective Kyiv courts.
In sum, the Law of Ukraine On Ensuring the Rights and Freedoms of Citizens and the Legal Regime of the Temporarily Occupied Territories of Ukraine unequivocally stipulates the legal status of Crimea and Sevastopol as “temporarily occupied territories”. Accordingly, the Law regulates on a broad range of legal relations stemming from the occupation, and serves as a foundation for numerous other administrative regulations and practices, e.g. in relation to border crossing and paying pensions.
2.2 Eastern Ukraine
2.2.1 The International Dimension
In contrast to Crimea and the city of Sevastopol, the Russian Federation did not formally incorporate the uncontrolled territories in eastern Ukraine before the recognition of dpr and lpr on 21 February 2022 and has not done so to this day. Instead, as mentioned above, the controversial 2014 ‘referenda’ in Donetsk and Luhansk gave rise to the emergence of two de facto states – the dpr and lpr – extensively supported by the Russian Federation in military and economic terms. Amid intense fighting within the uncontrolled territories in the summer and fall of 2014, the Minsk I Protocol was signed on 5 September by representatives of Ukraine, the Russian Federation, the osce, and the People’s Republics. In security terms, the Minsk I Protocol called, inter alia, for a ceasefire and the establishment of a “security zone” along the border to be monitored by the osce, the withdrawal of armed formations, military equipment, and fighters and mercenaries from the Ukrainian territories, and the release of all hostages and illegally detained persons.32 Minsk I security provisions were further reinforced by the follow-up memorandum of 19 September 2014, banning offensive operations and constituting the first attempt to delineate forces and create a 30-kilometer buffer zone.33 In political terms, Minsk I provided, inter alia, for the decentralization of power in Ukraine, including the adoption of the Law of Ukraine On Temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts, which will be explored below.34
By January 2015, as the ceasefire on the uncontrolled territories had proved to be dysfunctional, the parties proceeded with the negotiation of a new package of measures. Adopted on 12 February 2015, the Minsk ii Protocol envisaged an array of security and political steps to settle the conflict, similar to those under Minsk I, but formulated in more detail.35 The first concerns about the possibility of a stalemate on the implementation of Minsk ii were voiced as early as 2016 and it was not long before the stalemate became reality.36 As of 2019, the main accomplishment of the Minsk ii process, as identified in policy analyses, has been “the decrease of active hostilities, and the number of daily casualties and/or fatalities” or, in other words, the conflict’s transformation into a low-intensity one, rather than its resolution.37 Yet, as of mid-2021, this accomplishment had been gradually watered down amid increasing hostilities and human losses in Donbas and the preinvasion buildup of Russian troops at Ukraine’s borders. Notably, the implementation of the Minsk ii Protocol and the relevant amendments to Ukraine’s domestic legislation on eastern Ukraine lay at the heart of the Kremlin’s preinvasion attempts to blackmail Ukraine and the West and use the dpr and lpr to undermine Ukraine’s sovereignty and foreign policy course. With regard to the causes underlying the prewar Minsk ii stalemate, scholars and policy analysts have mentioned, inter alia, the vague and ambiguous language of the Minsk ii accords, leading to insufficient “clarity of technical[ly] solid ceasefire agreements”38 and their unclear legal status as “politico-legal documents of a hybrid nature”.39 Another crucial obstacle to the implementation of the Minsk ii accords and, subsequently, the Special Status Law deals with the ‘sequencing dilemma’ of Minsk ii.40 In other words, while stipulating an array of measures that were intended to eventually resolve the conflict, the Minsk ii accords neither set out the sequence of such measures nor make the parties agree on such a sequence. The Minsk ii agreement thus formalized existing technical and political ‘unsettlements’,41 rather than offering a stable settlement. Hence, looking at Ukraine’s domestic legislation on the uncontrolled territories in eastern Ukraine is highly relevant to understand both the role of the People’s Republics in Russia’s aggression vis-à-vis Ukraine and the prewar interplay of the Minsk peace process, Ukraine’s domestic legislation, and its use of lawfare.
2.2.2 The Domestic Dimension: ‘Special Status’ vs. ‘Reintegration’?
Compared with Ukraine’s domestic legislation on the legal status of Crimea, the case of legal regulations on the conflict and the uncontrolled territories in the east is more complex. This complexity has been shaped by the simultaneous operation of the two intertwined, yet partially contradictory tracks of legal acts and their controversial linkages to the Minsk peace process. As illustrated below, the ‘special status’ track operates based on the Minsk ii accords and guarantees a special self-government order for the Donetsk and Luhansk regions. The ‘reintegration’ legislation, on the other hand, equates the legal regime of the uncontrolled territories to the regime in Crimea. Announcing the recognition of the dpr/lpr, President Putin indicated that this meant the Minsk ii agreement “ceased to exist”.42 This official statement can be equated to Russia’s unilateral withdrawal from Minsk ii as a politico-legal agreement that did not require ratification in the State Duma and does not have to be denounced by it. Ukraine did not announce its withdrawal from the agreement, and the two ‘tracks’ of Ukraine’s domestic legislation on eastern Ukraine also remained unchanged despite the war and the prospect of signing a new treaty that it is expected to end with. Due to Russia’s withdrawal from Minsk ii and, not least, the treaty’s formalization of preinvasion political ‘unsettlements’, it is not expected to play a significant role in new talks.
2.2.2.1 Special Status
The foundation of the ‘special status’ track is constituted by the Law of Ukraine On Temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts of 16 September 2014 (version of 26 November 2020) (the Special Status Law).43 This framework law was adopted based on Ukraine’s commitments to decentralization and granting ‘special status’ to respective areas under the Minsk I and later Minsk ii agreement. As demonstrated below, the provisions of this law were never implemented as they were conditional on Russia’s fulfillment of security-related norms under Minsk ii and later, on its withdrawal from Minsk ii. Examining the substance of the ‘special status’ track is, however, important for understanding the duality of Ukraine’s legislation regarding the uncontrolled territories and tracing its evolution after the war, also in light of Ukraine’s use of lawfare. Though Russia unilaterally withdrew from the Minsk ii agreement, the Verkhovna Rada of Ukraine did not repeal the Special Status Law, and it continues to be formally in force under martial law.
The main role of the Special Status Law is to highlight the peculiarities of the special self-government order on the territories of the dpr and lpr. According to the Law, the self-government is to be implemented by the territorial communities immediately and through the local self-government bodies.44 Notably, the authorities of the local councils’ members and executives, elected in extraordinary elections (discussed below), cannot be terminated ahead of schedule to ensure the stability of governance.45 In light of the negative consequences of the armed conflict that existed prior to the full-scale invasion of 2022, the Law provides the newly elected local self-government with the opportunity to conclude agreements with central and local executive bodies on the economic, social, and cultural development of the respective areas.46 The state provides financial support for the implementation of such programs and ensures the launch of a special economic regime in the respective territories, conducive to economic and infrastructural development. Further important peculiarities of the self-government order include the guaranteed right to use Russian and any other language in virtually all domains of public life and the exemption from criminal investigation of those persons who participated in the events in Donbas.47 These norms are sharply different from those regulating the legal status of Crimea, since they (i) neither consider the territory to be occupied, nor define the occupying power and (ii) are formulated in a way that implies the operation of the Ukrainian legal regime, rather than the persistence of an occupying administration.
The rationale behind such a distinction is determined by the Law’s tight linkage with the Minsk ii agreement. In particular, the implementation of the “special order of local self-government” shall follow the elections and the commencement of work of the local self-government bodies to be elected in the extraordinary elections, conducted in accordance with Ukraine’s Constitution, the Special Status Law, other Ukrainian laws, and the relevant osce standards (i.e. publicity and openness of the election process). In this vein, the Law also links the election process to several security conditions under Minsk ii, most importantly “the complete withdrawal of all illegal armed groups, their military equipment, militants, and mercenaries” and ensuring nonintervention in the election process by, among others, the illegal armed groups.48 In practice, the fulfillment of these conditions was prevented by the Minsk peace process stalemate discussed above, as well as Russia’s recognition of the dpr and lpr.
Against this background, the ‘special status’ track proved to be entirely dysfunctional. The Special Status Law would only have been able to function effectively if the parties had found a way out of the ‘sequencing trap’ during the negotiations, which was highly unlikely amid Russia’s preinvasion military buildup around Ukraine.
2.2.2.2 Reintegration
While the Special Status Law analyzed above does not refer to the uncontrolled territories as ‘occupied’, the ‘reintegration track’ extends the legal regime of temporary occupation to the areas of the Donetsk and Luhansk oblasts and does not make any reference to the Minsk ii agreement. Hence, Article 2 of the 2018 Law On the Peculiarities of State Policy on Guaranteeing State Sovereignty of Ukraine in the Temporarily Occupied Territories (referred to in the scholarship and policy analyses as the “Reintegration Law” or “De-occupation Law”) points to the illegal nature of the Russian Federation’s temporary occupation of Ukraine’s territories.49 Article 2 of the 2018 Law condemns “the activities of the Russian Federation’s armed forces and the occupation administration of the Russian Federation in Donetsk and Luhansk oblasts” as contradicting the norms of international law. It is also stipulated that the Russian Federation shall be held responsible for any material and intangible damage experienced by Ukraine because of Russia’s aggression. Hence, Article 4 of the Law identifies three key objectives that Ukraine shall pursue in the occupied territories of Donetsk and Luhansk oblasts, namely (i) the liberation of the temporarily occupied territories and the restoration of the constitutional order in these territories; (ii) the protection of rights, freedoms, and lawful interests of physical and legal persons; and (iii) the guarantee of independence, unity, and territorial integrity of Ukraine. Against this background, Article 2 of the 2018 Reintegration Law expands the territorial scope of the Law of Ukraine On Ensuring the Rights and Freedoms of Citizens and the Legal Regime of the Temporarily Occupied Territories of Ukraine, initially adopted in the context of Crimea’s annexation to the uncontrolled territories in eastern Ukraine. In practice, such an expansion creates new obligations for the Ukrainian state, such as those it bears with respect to citizens and legal entities in the annexed Crimea. Moreover, in line with the above aims, the 2018 Law divides the responsibility for countering Russia’s aggression between an array of actors, such as, for instance, the Joint Staff of the Armed Forces of Ukraine, the National Guard, and the Security Service of Ukraine.50
The above insight into the substance of the 2018 Reintegration Law and the recent developments on the ‘reintegration track’ prompt us to make several remarks. First, by immediately denoting the legal status of the uncontrolled territories as ‘temporarily occupied’ and naming the ‘occupying power’, the 2018 Reintegration Law “manifest[ed] a transfer from the legal uncertainty”, created by the Special Status Law, to a more specific legal regime, also as seen from the international law perspective.51 Even more specifically, the 2018 Reintegration Law was also used to ‘rebrand’ the notorious Security Service (sbu)-led Anti-Terrorist Operation (ato) in the east of Ukraine and provide the legal basis for the involvement of Ukraine’s Armed Forces in the newly launched Joint Forces Operation.52 Third, the Law’s non-referral to the Minsk ii agreement is illustrative of the disillusionment with the Minsk peace process felt by Ukrainian society and its legislator at the point in time when the Law was adopted. Moreover, a question arises as to whether the adoption of the 2018 Reintegration Law could be interpreted as influencing Ukraine’s commitments under the Minsk process and the Special Status Law. Immediately after the adoption of the 2018 Reintegration Law, many policy analysts opined that it equated to Ukraine’s withdrawal from the Minsk Accords or, put differently, the emergence of a ‘troubled nexus’.53 Nonetheless, in practice, the entry into force of the 2018 Reintegration Law has not led to Ukraine’s official or implicit withdrawal from the Minsk Accords or in fact any change to the status quo.54 Such a situation can be explained by the fact that the Special Status Law was not directly applicable but in fact laid the foundations for a potential regime, the establishment of which was made conditional on the fulfillment of the abovementioned security conditions.55 As demonstrated below, changes in this dichotomy could have been triggered by the potential rulings of international courts in respective interstate cases, yet it was the recognition of the dpr and lpr and the subsequent invasion that shattered the fragile status quo.
3 Ukraine’s Strategic Use of Lawfare and its Interplay with Domestic Legislation
3.1 Lawfare in the Context of Ukraine-Russia Relations
This section will move on from describing Ukraine’s domestic legislation to explore Ukraine’s efforts to protect its territorial integrity in international courts. First, however, let us briefly look at the term lawfare and its application in the context of Ukraine-Russia relations.
The first definition of the term lawfare in the military context dates back to the 2001 article by Colonel Charles Dunlap, who used it to substantiate the ever stronger role played by international law in the context of military interventions.56 In this contribution, Dunlap defined lawfare as “the use of law as a weapon of war”, representing a notable trend in 21st century wars.57 Dunlap’s stance on lawfare is ambiguous in both his 2001 and further papers.58 In particular, though recognizing the importance of the evolution of the international law of armed conflict and commanders’ adherence to the rule of law in leading operations, Dunlap points to an extreme politicization of lawfare and frequent attempts to misuse it by conflicting parties.59 Nonetheless, he acknowledges the ability of lawfare to contain violent military operations, if it becomes clear that an operation obviously contradicts international humanitarian law and he warns against condemning everyone who takes recourse to international courts to resolve national security-related issues.60 Bearing this in mind, the paper will use a more detailed definition, offered by Dunlap in 2003 and referring to lawfare as “the strategy of using – or misusing law as a substitute for traditional military means to achieve an operational objective”.61
The above definition is adopted by the majority of contemporary English-language contributions on lawfare, as it fully embraces the idea of “using law as a weapon of war”, while remaining sufficiently neutral.62 Such literature is, however, rather scarce, with the majority of contributions focusing on specific case studies of countries’ use or misuse of lawfare and its impact on geopolitics,63 rather than systemizing the impact of lawfare on international law in general terms or from various regional or thematic perspectives.64 Furthermore, scholars have so far also paid relatively little attention to both the use of domestic law as a tool of lawfare65 and the impact of a country’s recourse to lawfare on its domestic law and the domestic–international law nexus. Both lenses definitely make sense, also with respect to gaining insight into various regional perspectives on public international law, in general, as well as its specific branches (e.g. international humanitarian law). In this view, the subsequent legal analysis will turn its focus to the second lacuna – i.e. the interplay between the use of lawfare, on the one hand, and domestic law and its linkage to international law, on the other, looking particularly at Ukraine’s efforts to use lawfare against the Russian Federation prior to the latter’s full-scale invasion of Ukraine on 24 February 2022. Interestingly, a thin, yet promising strand of the literature has already homed in on various perspectives on the use of lawfare in Ukraine-Russia prewar relations. A wide range of studies have emphasized the linkage between the hybrid nature of a conflict and the parties’ use of lawfare.66 Here, a hybrid conflict implies the parties’ use of various non-military tools, such as economic restrictions or information campaigns, including Russia’s denial of its role in events in eastern Ukraine. In this context, Russia’s ‘weaponization’ of both international and domestic law is understood as a part of its “hybrid toolbox that has been understudied by the analytical community” and shall be considered by nato in terms of the respective counterstrategy.67 In turn, the scholarship refers to Ukraine’s use of lawfare as a “multilevel legal encounter during a hybrid war”, facing an array of challenges, such as “the overlaps of actions by different authorities and situations, when (in)action by some authorities complicates the use of lawfare”.68 Hence, analyzing lawfare in Ukraine-Russia relations contributes to the understanding of a broad spectrum of tools that the parties apply in multifaceted, complex conflict constellations. Here, a focus on domestic law is essential to see how the parties form their policies for the purposes of defining various conflict aspects and (mis)using international law. This, subsequently, contributes to the knowledge on the interplay between domestic and international law in Ukraine and the way ‘troubled nexuses’ between international law and domestic law emerge.
In the next step, the analysis will explore Ukraine’s lawfare efforts in the context of the annexation of Crimea and Russia’s occupation of eastern Ukraine. It will focus solely on interstate cases launched by Ukraine against the Russian Federation before 24 February 2022. In addition to emphasizing the instances of legal and policy (in)coherence in the interplay between Ukraine’s domestic legislation, the Minsk peace process, and Ukraine’s application of lawfare, the discussion will look at the early implications of Russia’s invasion in Ukraine for cases under consideration.
3.2 Crimea and the City of Sevastopol
In this section, we will argue that Ukraine’s strategic use of lawfare with respect to the annexation of Crimea back in 2014 is compatible with Ukraine’s domestic legislation on the legal status of the peninsula and the city of Sevastopol. The cases related to Crimea thus constitute a firm basis for linking cases on all aspects of Russian aggression with a full-scale invasion representing the culmination in international courts. Yet, as mentioned in the introduction, the current Russian regime’s disrespect of international courts’ rulings and its expected denunciation of the European Convention on Human Rights (echr) create obstacles to the enforcement of courts’ rulings, especially when it comes to the ECtHR. Though the ECtHR has jurisdiction over all cases against Russia launched before Russia’s denunciation of the echr becomes effective, experts point to pragmatic challenges of considering respective cases and ensuring the enforcement of rulings.69
As illustrated in Table 1, the relevant interstate cases, filed by Ukraine in relation to the annexation of Crimea, thus include:
The legal analysis of applications and memorials, submitted by the Ukrainian party to international courts and tribunals, reveals its consistent qualification of the Crimean case as ‘purported annexation’ and ’illegal annexation’, and the current authorities on the peninsula as ‘Russian occupation authorities’.71 For instance, in its application instituting proceedings before the icj, filed in the Registry of the Court, the Ukrainian party argues that “despite widespread condemnation from the international community, the Russian Federation continues to this day to illegally occupy and administer Crimea”, thus, claiming its exercise of “effective control” over the peninsula and the city of Sevastopol.72 Notably, neither in the case brought before the icj, or the other aforementioned cases, did Ukraine immediately ask the international adjudicating bodies to recognize the Russian Federation’s effective control over Crimea and the city of Sevastopol. Instead, relying, inter alia, on Georgia’s (not entirely successful) experience of instituting proceedings against the Russian Federation with the icj and the ECtHR, Ukraine claimed the Russian Federation had violated its obligations under several crucial public international law acts, such as the cerd (in its icj application), unclos (in the case launched before the Arbitral Tribunal), and the Convention for the Protection of Human Rights and Fundamental Freedoms (before the ECtHR).73 Under such a strategy, each adjudicating body would still most likely have to touch upon an ‘effective control’ issue either already at the stage of establishing its jurisdiction and deciding whether a case is admissible or, later on, at the merits stage, i.e. to find out whether there might be grounds for attributing the claimed violations to the Russian Federation. So far, the courts have addressed the nexus between the Russian Federation’s alleged violations of its obligations under international law and ‘effective control’ in a different way.
In its judgment on admissibility of 8 November 2019, the icj cautiously applied the terms ‘purported annexation’ or ‘unlawful occupation’, only when citing the position of a Ukrainian party.74 In particular, the icj noted that “Ukraine is not requesting that it rule on issues concerning the Russian Federation’s purported ‘aggression’ or its alleged ‘unlawful occupation’ of Ukrainian territory”, thus, rejecting the preliminary objection by the Russian Federation, according to which the real subject matter of the dispute dealt with the status of Crimea.75 With this, the Court concluded that the subject matter of the dispute (in part related to Crimea and cerd) is “whether the Russian Federation breached its obligations under cerd through discriminatory measures allegedly taken against the Crimean Tatar and Ukrainian communities in Crimea”.76 With this, the icj agreed to proceed with investigating the merits of the case, and its judgment on merits is expected to contribute to the consolidation of the link between the annexation of Crimea and Russia’s full-scale invasion as acts of Russia’s continued aggression vis-à-vis Ukraine since 2014. If the icj rules in favor of Ukraine, this will in any case be in line with Ukraine’s position on Crimea and Sevastopol, contained in domestic legislation, and will further strengthen it.
According to the governmental lawfare website, which aims to inform citizens about Ukraine’s confrontation with Russia in international courts, the objective behind Ukraine’s application to the ECtHR in the case of Ukraine v. Russia (re: Crimea) has been “to prove the fact of effective control of the Russian Federation over a part of the territory of Ukraine and to protect the violated rights in the temporarily occupied territory of the Autonomous Republic of Crimea”.77 In its judgment on admissibility of 14 January 2021, the ECtHR declared the application partly admissible, thus contributing in part to the abovementioned objective of the Ukrainian party.78 The Court held that it did not have the competencies to decide on whether Crimea’s admission to the Russian Federation could be deemed lawful under public international law.79 However, the Court, ruled that “the facts complained of by the Ukrainian government did fall within the ‘jurisdiction’ of Russia on the basis of effective control that it exercised over Crimea as of this date [27 February 2014]”.80 Furthermore, the Court held as admissible the vast majority of Ukraine’s claims as to Russia’s administrative practices violating the Convention (except for the practice of systematic killings, the nationalization of Ukrainian soldiers’ property, and the intimidation of foreign journalists and the seizure of their equipment).81 Among Ukrainian lawyers, the ECtHR’s admissibility in the case of Ukraine v. Russia (re: Crimea) was deemed highly important for several reasons, including the way the Court addressed the issues pertaining to sovereignty and state jurisdiction, as well as its findings on the “prima facie existence of an administrative practice of various human rights violations by Russia”.82 Subsequently, this ruling was viewed as capable of influencing the outcomes of other cases against Russia before international courts, lodged by Ukraine, including those that will follow the full-scale invasion. The respective admissibility ruling may also be important in terms of complaints lodged against the Russian Federation by private persons, whose rights were allegedly violated due to Russia’s actions in Crimea or the Russian-sponsored de facto states in Georgia: Abkhazia and South Ossetia. The 2021 ECtHR admissibility ruling strengthens the position of Ukraine’s stance on the legal status of Crimea and Sevastopol, as formulated in domestic legislation.
Moreover, the recourse to Russia’s exercise of effective control over Crimea can be found in the 2018 and 2020 icc Prosecutor’s Reports on Preliminary Examination Activities (to be discussed below in more detail).83 Yet, since the preliminary examination is not commensurate with a full investigation that may lead to prosecution, its legal value as well as its weight in intergovernmental negotiations may be less than the above ECtHR judgment.
In a nutshell, Ukraine’s claims concerning Crimea, lodged before international courts, and the available rulings on admissibility do not come into conflict with Ukraine’s domestic legislation on Crimea. Moreover, the admissibility rulings in the cases lodged by Ukraine before the icj and the ECtHR have the potential to reinforce Ukraine’s positions on Crimea. The respective rulings also bear the potential to impact further judgments in cases against Russia, lodged by interstate and private parties before various international adjudicating bodies.
3.3 Eastern Ukraine
This section will look back at the complex interplay and conflicts between the two tracks of Ukraine’s domestic legislation on the uncontrolled territories in eastern Ukraine and its relevant lawfare efforts. The analysis will also explore the implications of the recognition of the dpr and lpr and Russia’s full-scale invasion of Ukraine for Ukraine’s previous use of lawfare against Russia, as presented in Table 2:
With respect to the abovementioned cases, we argue that the courts’ findings and rulings that are already available had considerable potential to come into conflict with Ukraine’s domestic legislation concerning eastern Ukraine and create ‘troubled nexuses’ between international law and domestic law in Ukraine. Though the recognition of the dpr and lpr considerably reduces such potential, we show that it may prevail even in Ukraine’s postwar use of lawfare against Russia, e.g. when it comes to adjudicating on the nature of conflict in eastern Ukraine prior to 2022.
This statement is particularly relevant for the consideration of the eastern Ukraine case by the icc, which has so far been the only adjudicating body worldwide to present its examination of the situation in Donbas. Such an assessment shall not, however, be viewed as a judgment of a binding legal nature which may lead to potential prosecution. The reason for this is that the assessment was published in terms of the preliminary examination procedure. This procedure can be defined as “a process by which the Prosecutor considers all the information available to her [him] in order to reach a fully informed determination on whether there is a ‘reasonable basis’ to proceed with a full investigation”.84 The icc Prosecutor shall seek a full investigation, unless their examination of the situation in terms of the preliminary investigation reveals an absence of the ‘reasonable basis’ to do so.85 Though the preliminary examination phase for the Ukrainian case is marked on the icc website as ‘ongoing’, the 2020 icc Prosecutor’s Report on Preliminary Examination Activities already “concludes its preliminary examination of the situation in Ukraine with a determination that the criteria for proceeding with an investigation are met with respect to subject-matter, admissibility and the interests of justice”.86
Notably, in contrast to the 2018 icc Prosecutor’s Report, which offered a preliminary qualification of the situation in Donbas (claiming the coexistence of a Ukraine-Russia and non-international armed conflict),87 the 2020 Report did not offer any particular qualification of the events.88 Instead, the 2020 Report introduces a more detailed insight into the crimes falling within the icc jurisdiction according to the Rome Statute (i.e. war crimes, crimes against humanity, genocide, and aggression) which may have been committed on Ukraine’s territory since 2014.89 If the Court upholds its preliminary qualification of the situation in eastern Ukraine as combining an international armed conflict between Russia and Ukraine and the non-international armed conflict (whereby the dpr and lpr are not recognized as totally dependent on Russia), the key challenge for domestic legislation concerns the icc’s finding as to the parallel presence of a non-armed conflict in eastern Ukraine. Such a finding immediately undermines the conflict’s qualification under the 2018 Reintegration Law as a solely international one. This, in turn, creates uncertainty as to which dimension of the conflict particular actions or human rights violations in Donbas, committed both before and after Russia’s full-scale invasion of Ukraine, shall be attributed. It is, nevertheless, highly likely that, following the eventual recognition of the dpr/lpr by the Russian Federation and the evidence of Russian-led ‘mobilization’ on these territories, the icc will change its qualification of the conflict and contribute to the consolidation of Ukraine’s expected position as to the continuity of Russia’s aggression since 2014.
Both the instances of coherence and the potential for conflict with domestic legislation can be traced back to the icj case on Russia’s alleged violation of the International Convention for the Suppression of the Financing of Terrorism (icsft). In this case, the Ukrainian government declared the following objective: “to establish violations of the mentioned Convention by the Russian Federation, to restitute the violated rights of Ukraine, to oblige Russia to refrain from such actions in the future and compensate for damage”.90 Notably, the formulations contained in Ukraine’s initial application to the icj are not fully coherent with the 2018 Reintegration Law, since the appeal focuses not on Russia’s actions as an occupying power but its breaches of the icsft. The alleged breaches, mentioned by the Ukrainian party, include “supplying funds, including in-kind contributions of weapons and training, to illegal armed groups that engage in acts of terrorism in Ukraine, including the dpr, the lpr, the Kharkiv Partisans, and associated groups and individuals, in violation of Article 18”.91 Among the alleged crimes, the Ukrainian party also mentions “failing to take appropriate measures to detect, freeze, and seize funds used to assist illegal armed groups that engage in acts of terrorism in Ukraine, including the dpr, the lpr, the Kharkiv Partisans, and associated groups and individuals, in violation of Articles 8 and 18”.92 Thus, Ukraine accuses the Russian Federation not of occupation (as it does by virtue of the 2018 Reintegration Law) but of sponsoring terrorism and failing to prevent the financing of terrorism. Hence, the key objections raised by the Russian Federation concerned the qualification of the Euromaidan Revolution and conflict in eastern Ukraine (which the Russian Federation qualifies as a ‘coup d’état’ and a civil war) and the alleged participation of the dpr and lpr as the parties to the Minsk process.
Having examined the parties’ positions, the Court stipulated that the subject matter of the dispute between the parties is whether “the Russian Federation had the obligation, under the icsft, to take measures and to co-operate in the prevention and suppression of the alleged financing of terrorism in the context of events in eastern Ukraine and, if so, whether the Russian Federation breached such an obligation”.93 To put it simplistically, if the icj adopts a ruling in favor of Ukraine in this case, this would mean the confirmation of the linkage between the dpr/lpr and the Russian Federation. As well as the icc’s potential upholding of the existence of a non-international armed conflict in the Donbas area prior to Russia’s full-scale invasion of Ukraine, such an approach would be incoherent with the qualification of a situation, as presented in the 2018 Reintegration Law, which does not mention the lpr and dpr. On the other hand, the recognition of an initial linkage between the Russian Federation and the lpr/dpr is of use for illustrating the evolution of Russian aggression against Ukraine and the role of the People’s Republics.
Similar implications concerning the recognition of the linkage between Russia and the dpr/lpr may stem from the ECtHR’s Ukraine and the Netherlands v. Russia case. The Ukrainian government’s key objective, in this case, is to “prove the fact of effective control of the Russian Federation over a part of the territory of Ukraine and protect violated human rights in the temporarily occupied territories of Donetsk and Luhansk regions”.94 In its initial application and further comments, Ukraine has sought to provide evidence of the deployment of Russian troops and weaponry in dpr and lpr, as well as the Russian military’s engagement in activities in eastern Ukraine. Hence, though the aim of Ukraine’s application is formulated differently from the above icj case, the results of an investigation are likely to produce similar outcomes. This statement can be further confirmed by the fact that the ECtHR referred to the Ukraine and the Netherlands v. Russia case and related interim measures when ordering interim measures with respect to Russia’s ‘military operation’ on Ukrainian territory.95
Hence, prior to Russia’s recognition of the dpr and lpr, the case of eastern Ukraine was marked by substantive incoherencies, arising from the coexistence of the ‘special status’ and ‘reintegration’ tracks in Ukraine’s domestic legislation amid the stalemate of the Minsk peace process. The difference between the preinvasion situation in Crimea and Donbas can be, inter alia, attributed to the greater legal clarity associated with the Crimean case and Crimea’s official illegal incorporation into the territory of the Russian Federation. The Donbas case was, in contrast, strongly challenged by the hybridity of the dpr/lpr involvement. Russia’s recognition of the dpr and lpr and the start of the full-scale invasion of Ukraine can be thus seen as a factor capable of consolidating the position of the international courts as to the international nature of the conflict prior to the invasion and the dpr and lpr as territories temporarily occupied by the Russian Federation. The icc’s or other international courts’ recognition of the presence of a non-international armed conflict in eastern Ukraine, alongside the international conflict, prior to 24 February 2022, can be seen as a factor capable of undermining the coherence of Ukraine’s postwar lawfare efforts vis-à-vis Russia.
4 Conclusion
The challenge of defining the relationship between international law and domestic law is of major relevance for the post-Soviet states, in general, and Ukraine, in particular. A crucial factor that heightens such a challenge and bears the potential to generate legal uncertainties, conflicts, and further ‘troubled nexuses’ between international and domestic law in such settings has been the prevalence of hybrid conflicts and unrecognized de facto states in the region. The situation in Ukraine prior to the full-scale invasion demonstrates that the conflicts between international law and domestic law may, inter alia, result from a state’s active use of lawfare in relation to aforementioned conflicts.
Ukraine has been actively utilizing lawfare with respect to both the illegal annexation of Crimea and the situation in eastern Ukraine prior to Russia’s formal recognition of dpr and lpr. In the former case, Ukraine’s application of lawfare has been fully coherent with its domestic legislation on the status of Crimea, which it declared to be “temporarily occupied” by the Russian Federation. Prior to Russia’s recognition of lpr and dpr and the full-scale invasion, the Donbas case had been marked by the potential for the emergence of ‘troubled nexuses’ between international law and Ukraine’s domestic legislation for several reasons. These include the vague legal status of the uncontrolled territories in eastern Ukraine, as compared to Crimea, which was officially incorporated into the Russian Federation, the coexistence of two tracks of Ukraine’s domestic legislation on Donbas, and the stalemate in the Minsk peace process. In this vein, a challenging situation could have emerged if an international court, for instance the icc, had recognized the presence of a non-international armed conflict in eastern Ukraine. Such non-recognition would have undermined the ‘reintegration’ track of Ukraine’s domestic legislation on Donbas and weakened Ukraine’s position in the Minsk process. On the other hand, international courts’ recognition of the Russian Federation as a party to an international conflict could have undermined the Minsk process and the Special Status Law, since neither the Minsk ii agreement, nor the Special Status Law openly referred to Russia’s role in the conflict.
The analysis presented in the article is, thus, illustrative of ambiguities and incoherencies that led to a ‘troubled nexus’ between international law and domestic law in preinvasion Ukraine. In broader terms, the article illustrates the challenges of translating policies to laws as well as law-making against the background of territorial conflicts and the operational procedures of international courts. Russia’s recognition of the dpr and lpr and its launch of a full-scale invasion of Ukraine in February 2022 de facto resolved many of the above challenges and made the case more straightforward in international law terms. In particular, the recognition of the dpr and lpr de facto put an end to the Minsk peace process and its stalemate, promising to resolve conflicts between the ‘special status’ and ‘reintegration’ legislation, though both tracks have remained in force amid martial law. Moreover, Russia’s full-scale war of aggression against Ukraine is likely to consolidate the positions of international adjudicating bodies as to Russia’s previous acts of aggression against Ukraine, including its role in the formation of the dpr/lpr. Nevertheless, continued incoherencies between Ukraine’s domestic legislation and its lawfare efforts and the fact that the Ukrainian authorities took insufficient account of lessons learnt over the eight years of using lawfare may lead to the emergence of new formalized political ‘unsettlements’ for Ukraine following the war.
Since 2014, there have been numerous instances of discord in politics, scholarship, and media as to which terms to use to define the events in Ukraine. For the purposes of this article, we use the term ‘Ukraine conflict’ to refer to the events happening over the period from 2014 to 2022, as this term is widely used in scholarship and enables us to distinguish between the events of this period and Russia’s ‘full-scale war’ in or ‘invasion’ of Ukraine that Putin declared on 24 February 2022. As the Russian Federation forcibly integrated the Crimean Peninsula into Russia, we use the term ‘annexation’ to refer to this event. As there is no conventional definition of a territory’s occupation by proxy, we will refer to the events in Donbas preceding the recognition of the so-called ‘Donetsk and Luhansk People’s Republics’ as ‘Russia’s [military] support to the so-called Republics’. For the use of the term ‘Ukraine conflict’, see, for example: Outi Korhonen, “Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars,” 16(3) German Law Journal (2019), 452–478; Shane Reeves and David Wallace, “The Combatant Status of the ‘Little Green Men’ and Other Participants in the Ukraine Conflict,” 91 International Law Studies (2015), 361–401. For an insight into the challenge of defining Russia’s actions in eastern Ukraine prior to the recognition of the ‘lpr’ and ‘dpr’, see Natia Kalandarishvili-Mueller, “Russia’s ‘Occupation by Proxy’ of Eastern Ukraine – Implications under the Geneva Conventions,” Joust Security, available at https://www.justsecurity.org/80314/russias-occupation-by-proxy-of-eastern-ukraine-implications-under-the-geneva-conventions/.
International Court of Justice, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). Request for the Indication of Provisional Measures, available at https://www.icj-cij.org/public/files/case-related/182/182-20220316-SUM-01-00-EN.pdf.
Ibid.
Sergei Kiselev, “Kremlin Rejects Top UN Court’s Order to Halt Ukraine’s Invasion,” The Moscow Times (17 March 2022). Notably, the Counsel for Russia before the icj and other international tribunals Alain Pellet reacted to Russia’s invasion of Ukraine through an open letter announcing his resignation: Alain Pellet, “Ukraine is not Crimea,” EJIL: Talk (3 March 2022), available at https://www.ejiltalk.org/open-letter-to-my-russian-friends-ukraine-is-not-crimea/.
Russia was excluded from the Council of Europe on 16 March 2022, yet it announced its withdrawal several days before the exclusion. For more detail on Russia’s move to leave the Council of Europe, see Georgi Gotev, “Russia leaves Council of Europe, avoiding being kicked out,” EURACTIV (10 March 2022), available at https://www.euractiv.com/section/global-europe/news/russia-leaves-council-of-europe-avoiding-being-kicked-out/.
For the texts of the Minsk agreement, see “Package of Measures for the Implementation of the Minsk Agreements,” UN Peacemaker (12 February 2015), available at https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf.
Kristian Åtland, “Destined for Deadlock? Russia, Ukraine, and the Unfulfilled Minsk Agreements,” 36(2) Post-Soviet Affairs (2020), 122–139; Isobel Koshiw, “Everyone is talking about the Minsk Agreements, but what do they mean for Ukraine?” Global Voices (6 February 2022), available at https://globalvoices.org/2022/02/06/everyone-is-talking-about-the-minsk-agreements-but-what-do-they-mean-for-ukraine.
For more details, see lawfare.gov.ua.
Ibid.
Maryna Rabinovych, “The Domestic Dimension of Defining Uncontrolled Territories and its Value for Conflict Transformation in Moldova, Georgia and Ukraine,” in Hanna Shelest and Maryna Rabinovych (eds.), Decentralization, Regional Diversity and Conflict. The Case of Ukraine (Basingstoke, Palgrave McMillan, UK, 2020), 108.
Verkhovna Rada, “Pro Samousunennya Presidenta Ukrainy vid Vykonannya Konstytuziynyh Povnovazhen’ ta Pryznachennia Pozchergovyh Vyboriv Presidenta Ukrainy” [On the Self-Removal of the President of Ukraine from the Exercise of Powers and Scheduling Early Elections of the President of Ukraine], Vidomosti Verkhovnoi Rady Ukrainy (22 February 2014), available at https://zakon.rada.gov.ua/laws/show/757-18#Text.
See, for instance, David R. Marples, “Russia’s Perceptions of Ukraine: Euromaidan and Historical Conflicts,” 17(4) European Politics and Society (2016), 424–437.
Mustafa Dzhemilev, “Yavka Krymchan na Referendume ne Vyshe 30% – Dzhemilev” [Voter turnout in the Crimean referendum is no higher than 30%], Delo.ua (16 March 2014), available at https://delo.ua/econonomyandpoliticsinukraine/javka-krymchan-na-referendume-ne-vyshe-30-dzhemilev-230358.
Rossiyskaya Gazeta, “Federalnyi konstituzionnyi zakon ot 21 marta 2014 Nr. 6-fkz “O prinyatii v Rossiyskuyu Fedratsiu Respubliki Krym I Obrazovanii v Sostave Rossijskoj Federatsii Novyh Subjektov Respubliki Krym i Goroda Federal’nogo Znacheniya Sevastopol” [On Accepting the Republic of Crimea into the Russian Federation and the Creation in the Russian Federation of New Subjects, i.e. the Republic of Crimea and the City of Federal Importance Sevastopol], RG.ru (24 March 2014), available at https://rg.ru/2014/03/22/krym-dok.html.
See, for instance, United Nations General Assembly, Resolution 75/29 “Problem of the Militarization of the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, as well as parts of the Black Sea and the Sea of Azov,” a/res/75/29 (14 December 2020), available at https://digitallibrary.un.org; Council of the EU, “Ukraine: Declaration by the High Representative on behalf of the European Union on the Illegal Annexation of Crimea and Sevastopol,” European Council and Council of the European Union (25 February 2021), available at https://www.consilium.europa.eu/en/press/press-releases/2021/02/25/ukraine-declaration-by-the-high-representative-on-behalf-of-the-european-union-on-the-illegal-annexation-of-crimea-and-sevastopol/. For a scholarly insight into the Crimea annexation, see Thomas D. Grant, “Annexation of Crimea,” 109(1) American Journal of International Law (2015), 68–95.
See, for instance, Anastasiia Odintsova, “Badly staged play. How did ‘dpr’ and ‘lpr’ appeared after pseudo-referendums seven years ago,” Novoe Vremya (11 May 2021), available at https://nv.ua/ukr/ukraine/events/doneck-i-lugansk-7-rokiv-tomu-progolosili-narodni-respubliki-chomu-ce-nezakonno-50087108.html.
See, for instance, Tatyana Malyarenko and Stefan Wolff, The Dynamics of Emerging De-Facto States: Eastern Ukraine in the post-Soviet Space (Routledge, Abingdon, 2019), Chapter 2; Roman Petrov, “The Legal Systems of the Donetsk/Lugansk People’s Republics,” in Benedikt C. Harzl and Roman Petrov (eds.), Unrecognized entities. Perspectives in International, European and Constitutional Law (brill, Leiden, 2022), 209–228.
Fabian Bukhardt, Maryna Rabinovych, Cindy Wittke, and Elia Bescotti, “Passportization, diminished citizenship rights, and the Donbas vote in Russia’s 2021 Duma Elections,” Temerty Contemporary Ukraine Program (2022), available at https://huri.harvard.edu/files/huri/files/idp_report_3_burkhardt_et_al.pdf?m=1642520438; Sergey Sayapin, “An Alleged ‘Genocide of Russian-Speaking Persons’ in Eastern Ukraine: Some Observations on the ‘Hybrid’ Application of International Criminal Law,” in Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force Against Ukraine and International Law (Springer, Berlin, 2018), 313–326; Sergey Sayapin, “An Alleged ‘Genocide of Russian-Speaking Persons’ in Eastern Ukraine: Some Observations on the ‘Hybrid’ Application of International Criminal Law,” in Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force Against Ukraine and International Law (Springer, Berlin, 2018), 313–326.
Thomas D. Grant, Aggression against Ukraine: Territory, Responsibility, and International Law (Palgrave McMillan, Basingstoke, 2015), 7, ix.
For the jus ad bellum and jus in bello perspectives regarding Crimea and eastern Ukraine, see Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law (Springer, Berlin, 2018).
United Nations General Assembly, Resolution 68/262 “Territorial Integrity of Ukraine,” a/res/68/262 (27 March 2014), available at https://digitallibrary.un.org/record/767883; European Council, Conclusions on Ukraine approved by the European Council, 20 March 2014, available at https://www.consilium.europa.eu/media/29224/141707.pdf; European Council, Conclusions on Ukraine approved by the European Council, 20 March 2014, available at https://www.consilium.europa.eu/media/29224/141707.pdf.
See, for instance, United Nations General Assembly, Resolution 75/29 “Problem of the Militarization of the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, as well as parts of the Black Sea and the Sea of Azov,” a/res/75/29 (14 December 2020), available at https://digitallibrary.un.org.
David Brown, “Ukraine conflict: Where are Russia’s troops?”, BBC (23 February 2022), available at https://www.bbc.com/news/world-europe-60158694.
115th Congress, S.1221-Countering Russian Influence in Europe and Eurasia Act, May-June 2017, available at https://www.congress.gov/bill/115th-congress/senate-bill/1221/text?q=%7B%22search%22%3A%5B%22russia%22%5D%7D&r=65; Council of the EU, “Ukraine: EU Extends Sanctions Over Territorial Integrity for a Further Six Months,” European Council and Council of the European Union, available at https://www.consilium.europa.eu/en/press/press-releases/2021/03/12/ukraine-eu-extends-sanctions-over-territorial-integrity-for-a-further-six-months/.
Emine Dzhaparova, “The Crimean Platform Will Become a Foreign Policy Instrument of the De-Occupation Strategy,” UA: Ukraine Analityka (16 March 2021), available at https://ukraine-analytica.org/the-crimean-platform-will-become-a-foreign-policy-instrument-of-the-de-occupation-strategy/.
Sergiy Gorelov, “Ukraine Wants to Return Crimea, inter alia, By Military Means – Putin Argues that nato Can Help with This,” Delo.ua (1 February 2022), available at https://delo.ua/politics/ukraina-xocet-vernut-krym-v-tom-cisle-voennym-putem-putin-zayavil-cto-v-etom-mozet-pomoc-nato-392220.
All legal acts and bylaws referred to in this part of the analysis remain applicable under martial law.
Verkhovna Rada, “Pro Zabezpechennya Prav I Svobod Gromadyan ta Pravovyi Rezhym na Tymchasovo Okupovanij Territorii Ukrainy” [On Ensuring the Rights and Freedoms of Citizens and the Legal Regime of the Temporarily Occupied Territories of Ukraine], Vidomosti Verkhovnoi Rady Ukrainy (15 April 2014), available at https://zakon.rada.gov.ua/laws/show/1207–18#Text.
Ibid., Article 4, Article 10.
Ibid., Article 5.
Ibid., Article 6, 7, 8, 11, 111. See also Verkhovna Rada, “Pro Derzhavnyi Reestr Vybortsiv” [On the State Register of Voters], Vidomosti Verkhovnoi Rady Ukrainy (22 July 2007), available at https://zakon.rada.gov.ua/laws/show/698-16#Text.
UN Peacemaker, “Protocol on the Results of Consultations of the Trilateral Contact Group (Minsk Agreement),” UN Peacemaker (5 September 2014), available at https://peacemaker.un.org/ua-ceasefire-2014.
osce, “Memorandum of 19 September 2014 Outlining the Parameters for the Implementation of Commitments of the Minsk Protocol of 5 September 2014,” OSCE (19 September 2014), available at https://www.osce.org/home/123806.
UN Peacemaker, op.cit note 6.
Ibid.
Filip Warwick, “Civilians See No End to the Conflict in Eastern Ukraine,” RFI France (11 February 2016), available at https://www.rfi.fr/en/europe/20160211-civilians-see-no-end-conflict-eastern-ukraine.
Tim B. Peters and Anastasiia Shapkina, “The Grand Stalemate of the Minsk Agreements,” Konrad Adenauer Stiftung (February 2019), available at https://www.kas.de/documents/252038/4520172/The+Grand+Stalemate+of+the+Minsk+Agreements.
Hilde Haug, “The Minsk Agreements and the osce Special Monitoring Mission. Providing Effective Monitoring of the Ceasefire Regime,” 27 (3–4) Security and Human Rights (2016), 342–357, at 355.
Cindy Wittke, “The Minsk Agreements – More than ‘Scraps of Paper’,” 35(3) East European Politics (2020), 264–290, at 265.
Åtland, op.cit. note 7.
Wittke, op.cit. note 39, 287.
“Putin Announced the Death of Minsk Agreement,” RIA Novosti (22 February 2022), available at https://crimea.ria.ru/20220222/putin-konstatiroval-smert-minskikh-soglasheniy-1122470643.html.
Verkhovna Rada, “Pro Osoblyvyi Poryadok Mistsevogo Samovriaduvannia v Okremyh Regionah Donets’koi ta Luhans’koi Oblastej” [On Temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts], with latest changes, Vidomosti Verkhovnoi Rady Ukrainy (15 December 2020), available at https://zakon.rada.gov.ua/laws/show/1680-18#Text.
Ibid., Art. 5.
Ibid.
Ibid., Art. 6.
Ibid., Art. 4.
Ibid., Art. 10(4).
Verkhovna Rada, “Pro Osoblyvosti Derzhavnoi Polityky iz Zabezpechennya Derzhavnogo Suverenitetu Ukrainyna Tymchasovo Okupovanyh Terytoriyah u Donetsk’ij ta Luhanskij Oblastyakh” [On the Peculiarities of State Policy on Guaranteeing State Sovereignty of Ukraine in the Temporarily Occupied Territories], Vidomosti Verkhovnoi Rady Ukrainy (18 January 2018), available at https://zakon.rada.gov.ua/laws/show/2268-19#Text.
Ibid., Art. 8.
Rabinovych, op.cit. note 10, 130.
Åtland op cit. note 7, 230.
Tony Wesolowsky and Yana Polyanska, “Five Issues with Ukraine’s ‘Occupied Territories’ Bill,” Radio Free Europe (18 January 2018), available at https://www.rferl.org/a/ukraine-donbass-bill-five-issues/28983459.html; Daria Platonova, “Donbas Reintegration Law: What Impact on the Minsk Agreements?,” Strife Blog (9 March 2018), available at https://www.strifeblog.org/2018/03/09/donbas-reintegration-law-what-impact-on-the-minsk-agreements.
“The Future of Minsk Agreements: Pressing for Implementation or Withdrawing,” Ukraine Crisis Media Center (ucmc) (26 February 2021), available at https://uacrisis.org/en/minsk-agreements.
Rabinovych, op.cit. note 10, 130.
Charles J. Dunlap, “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” prepared for the “Humanitarian Challenges in Military Intervention Conference” (2001), available at https://people.duke.edu/~pfeaver/dunlap.pdf.
Ibid., 1.
Ibid. See also: Charles J. Dunlap, “Lawfare: A Decisive Element of 21st Century Conflicts?,” 54 Joint Force Quarterly (2009), 34–39.
Ibid., 35.
Ibid., 38.
Charles J. Dunlap, “It Ain’t No tv Show: jag s and Modern Military Operations,” 4(2) Chicago Journal of International Law (2003), 479–491, at 480.
Orde F. Kittrie, Lawfare: Law as a Weapon of War (Oxford University Press, Oxford, 2016), at 8.
See, for instance, Richard Javad Heydarin, “Mare Liberum: Aquino, Duterte, and the Philippines’ Evolving Lawfare Strategy in the South China Sea,” 10(2) Asian Politics and Policy (2018), 283–299; Freya Irani, ‘Lawfare’, US Military Discourse, and the Colonial Constitution of Law and War,” European Journal of International Security, online first.
More systemic analysis can be found in: Orde F. Kittrie, op.cit. note 62; Sascha Dov Bachmann and Andres B. Munoz Mosquera, “Hybrid Warfare as Lawfare: Towards a Comprehensive Legal Approach,” in Eugenio Cusumano and Marian Corbe (eds.), A Civil-Military Response to Hybrid Threats (Springer, Berlin, 2018), 61–76.
Mark Voyger, “Russian Lawfare – Russia’s Weaponization of International and Domestic Law: Implications for the Region and Policy Recommendations,” 4(2) Journal on Baltic Security (2019), 35–42.
Voyger, op.cit. note 65; A Mosquera and S Bachmann, “Lawfare in Hybrid Wars: The 21st Century Lawfare,” Journal of International Humanitarian Legal Studies (2016), 63–87.
Voyger, op.cit. note 65, 35; See also Bachmann and Mosquera, op.cit. note 64; Dmytro Koval, “Ukraine vs Russland vor dem Internationalen Gerichtshof: Juristische Argumente und Politische Erwartungen” [Ukraine vs. Russia before the International Court of Justice: Legal arguments and political expectations], 208 Ukraine-Analysen (2021), 2–6.
Zakhar Tropin, “Lawfare as Part of Hybrid Wars: The Experience of Ukraine in Conflict with Russian Federation,” 33(1) Security and Defence Quarterly (2021), 15–29, at 15.
See, for example, Kanstantsin Dzehtsiarou, “The Closing Door in Strasbourg,” Völkerrechtsblog (26 February 2022), available at https://voelkerrechtsblog.org/the-closing-door-in-strasbourg/.
The subsequent analysis will not include this case, since the Court upheld Russia’s objections and declared that it lacked jurisdiction as to sovereignty issues related to the maritime dispute. For more detail, please see: Permanent Court of Arbitration, “An Arbitral Tribunal Constituted Under Annex vii to the 1982 United Nations Convention on the Law of the Sea between Ukraine and Russian Federation in Respect of a Dispute Concerning Coastal State Rights in the Back Sea, Sea of Azov and Kerch Strait. Award Concerning the Preliminary Objections of the Russian Federation,” PCA (21 February 2020), para 191, 195, available at https://pcacases.com/web/sendAttach/9272.
See, for instance, International Court of Justice, “Application instituting proceedings field in the Registry of the Court on 16 January 2017. Application of the International Convention for the Suppression of the Financing of Terrorism and of the Elimination of All Forms of Racial Discrimination,” (Ukraine v. Russian Federation), ICJ (16 January 2017), available at https://www.icj-cij.org/public/files/case-related/166/166-20170116-APP-01-00-EN.pdf.
Ibid., para 24.
Ibid.; See also: Valentin Schatz, Dmytro Koval, “Insights from the Bifurcation Order in the Ukraine v. Russia Arbitration under Annex vii of unclos,” EJIL: Talk (2018), available at https://www.ejiltalk.org/insights-from-the-bifurcation-order-in-the-ukraine-vs-russia-arbitration-under-annex-vii-of-unclos; Halya Coynash, “Crucial victory for Ukraine in echr case against Russia over Crimea,” Kharkiv Human Rights Protection Group (khrpg) (15 January 2021), available at https://khpg.org/en/1608808744.
International Court of Justice, “Reports of Judgments, Advisory Opinions and Orders. Application of the International Convention for the Suppression of the Financing of Terrorism and of the Elimination of All Forms of Racial Discrimination” (Ukraine v. Russian Federation). Judgment of 8 November 2019,” ICJ (8 November 2019), available at https://www.icj-cij.org/public/files/case-related/166/166-20191108-JUD-01-00-EN.pdf, para 23, 37.
Ibid., 23.
Ibid.
Law Confrontation with Russian Federation, “Ukraine v. Russia (re: Crimea),” Lawfare.gov.ua (14 January 2021), available at https://lawfare.gov.ua/cases/ukraine-vs-russia-crimea.
ECtHR, Ukraine v. Russia (re: Crimea), Grand Chamber Admissibility Decision (14 January 2021), App. nos 20958/14 and 38334/18.
Ibid., para 244.
Ibid., para 264–266.
Ibid., part vi (B).
Ibid.; Media Initiative, “Rosiya ne Prograla Absolutno, a Peremoga Ukrainy ne Ye Totalnoju” [Russia Did Not Win Outright, and Ukraine’s Victory Is Not Total], Media Initiative (28 January 2021), available at https://mipl.org.ua/rosiya-ne-prograla-absolyutno-a-peremoga-ukra%D1%97ni-ne-ye-totalnoyu/.
International Criminal Court, “Report on Preliminary Examination Activities (2018) – Ukraine,” ICC (5 December 2018), available at https://www.icc-cpi.int/sites/default/files/itemsDocuments/181205-rep-otp-PE-ENG.pdf, para 66–68; International Criminal Court, “Report on Preliminary Examination Activities (2020) – Ukraine,” ICC (14 December 2020), available at https://www.icc-cpi.int/Pages/item.aspx?name=2020-otp-rep-PE-UKR, para 274–276.
Global Rights Compliance, “Ukraine and the International Criminal Court,” GRC (December 2016), 18.
International Criminal Court, “Rome Statute of the International Criminal Court,” ICC, available at https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf.
International Criminal Court, “Report on Preliminary Examination Activities (2020) – Ukraine,” ICC (14 December 2020), para 289–290.
International Criminal Court, “Report on Preliminary Examination Activities (2018) – Ukraine,” ICC (5 December 2018), para 71–73.
International Criminal Court, op.cit. note 86, para 277–281.
Ibid.
Law Confrontation with Russian Federation, “Case on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention for the Suppression of the Financing of Terrorism in the International Court of Justice (Ukraine v. Russian Federation),” Lawfare.gov.ua (8 November 2019), available at https://lawfare.gov.ua/cases/case-international-court-justice-un-against-russia.
Ibid.
Ibid.
International Court of Justice, op.cit note 74, para 32.
Law Confrontation with Russian Federation, “Case Ukraine v. Russia,” Lawfare.gov.ua (7 December 2019), available at https://lawfare.gov.ua/cases/ukraine-and-netherlands-v-russia.
European Court of Human Rights, “The European Court grants interim measures in application concerning Russia’s military operations on Ukrainian territory,” Register of the Court (1 March 2022), available at https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7272764-9905947%22]}.
