A historic law of geopolitical scale:
Why the newly passed Deoccupation Law matters. Part II
International lawyer Volodymyr Vasylenko on why the newly passed Deoccupation Law matters. Part II
Volodymyr Vasylenko, Judge of the International Criminal Tribunal for the former Yugoslavia in 2002-2005, former Ambassador to Benelux countries, EU and NATO
See part I in Is. #2(120) of February 2018 or at ukrainianweek.com
WHEN RUSSIA’S AGGRESSION AND TEMPORARY OCCUPATION OF UKRAINE’S TERRITORY BEGAN
The text of the law does not indicate a date of when the aggression began or the date of when the temporary occupation of parts of Ukraine started. However, these dates are mentioned in the acts mentioned in the preamble, including the Law on Ensuring the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine and the VerkhovnaRada Statement on Resisting the Armed Aggression of the Russian Federation and Overcoming its Consequences approved by the VR Resolution No337- VIII on April 21, 2015.
Both listed documents specify the date as February 20, 2014. It is used in MFA notes and lawsuits to international courts, including the European Court of Human Rights (ECHR), International Criminal Court (ICC) and International Court of Justice. Therefore, the officially established starting date of Russia’s aggression against Ukraine is February 20, 2014. It matches the date when the occupation of Crimea and the city of Sevastopol began: the annexation of these parts of Ukraine’s territory qualifies as an act of aggression per se. That annexation began on February 20, 2014.
International practices offer multiple scenarios for connecting the starting dates of armed aggressions and occupations – whether identical, close or distant, direct or indirect – since occupation is always a consequence and manifestation of aggression, a process and a fact simultaneously. The fighting that has been taking place in parts of Ukraine faced with the aggression is inevitably accompanied by military occupation. In such cases, occupation is a military operation while the occupied territory is controlled by the military exclusively. As the size of the occupied territory expands beyond the area of the fighting, it gains the status of the temporarily occupied territory under control of the predominantly civilian occupation administrations. Legislative determination of the starting date of the armed aggression has the key and decisive meaning. From this date, the armed offensive qualifies as an international crime committed by a state; all cases of war crimes and crimes against humanity, and the causing of material and non-material losses in the area of fighting or within the temporarily occupied territory are recorded.
The starting dates of temporary occupation have no impact on the assessment of the damage caused by the act of aggression. They tend to fluctuate and be linked to different territories in different timeframes. However, they are important for the establishment of the date when the occupying state should start fulfilling its positive obligations towards civilians in the occupied territory. Therefore, it is reasonable to establish the starting date of temporary occupation with the acts of the executive branch, not with laws.
THE LEGAL FOUNDATION FOR COUNTERING THE ARMED AGGRESSION
Russia’s armed aggression began with undeclared and concealed invasions into the territory of Ukraine with units of Russia’s Armed Forces and other security entities. This was done parallel to the organization and support of terrorist activities, and with no President elected on the nationwide scale, legitimately convened VerkhovnaRada or local authorities in Ukraine.
In this context, it was vital for Ukraine to solve two major tasks: to ensure counteraction to the aggression, and to form new power structures without violating the Constitution of Ukraine. Therefore, Ukraine’s leadership that came to power after Yanukovych’s regime collapsed organized resistance to the Russian aggression by launching the anti-terrorist operation in April 2014 with a wide-scale engagement of the Armed Forces. Early presidential election held in May 2014, followed by early parliamentary and local elections, eliminated any doubts about the legitimacy of the new authorities in Ukraine and ensured international support in its struggle.
From day one of Russia’s armed aggression, the anti-terrorist operation has been “an element of Ukraine’s integral right to individual self-defense from aggression as interpreted under Art. 51 of the UN Charter”. This approach was recorded in a number of VerkhovnaRada resolutions that have defined the key parameters of Ukraine’s legal stance in countering the armed aggression and dealing with its consequences, as the fighting unfolded.
It is known that the Armed Forces of Ukraine play the key role in the wide-scale fighting against the Russian aggression de facto, even if the Security Bureau of Ukraine (SBU) is in charge of the ATO de jure.
In confirmation of the VerkhovnaRada resolutions mentioned in its preamble, the newly passed law provides the legal statement of the fact that Ukraine counters Russia’s armed aggression in the format of defending itself from aggression under the Constitution of Ukraine, the laws of Ukraine and Art. 51 of the UN Charter, not in the ATO regime. This is also confirmed in the text of the law, including Art. 11.
This approach overturns speculative doubts about the legitimacy of engaging volunteer battalions and Armed Forces of Ukraine in all stages of countering Russia’s armed aggression. Art. 51 of the UN Charter is an international treaty provision whose binding force the VerkhovnaRada of Ukraine has committed to. Under the Constitution, this makes it part of the national legislation.
At the same time, the law ends the uncertainty about legal grounds for demands of the compensation of the damage incurred by individuals and/or legal entities as a result of Russia’s aggression. Based on the norms of the law and generally accepted principles of international law, Ukrainian courts should pass verdicts on the compensation of such damage by Russia as aggressor state.
RUSSIA’S RESPONSIBILITY FOR ITS ARMED AGGRESSION AGAINST UKRAINE
Art. 2 of the law says that Russia is responsible for material and non-material damage incurred by Ukraine as a result of Russia’s armed aggression under international principles and law. Art. 6 says that the Cabi-
RUSSIA’S ARMED AGGRESSION BEGAN WITH UNDECLARED AND CONCEALED INVASIONS INTO THE TERRITORY OF UKRAINE WITH UNITS OF RUSSIA’S ARMED FORCES AND OTHER SECURITY ENTITIES. THIS WAS DONE PARALLEL TO THE ORGANIZATION AND SUPPORT OF TERRORIST ACTIVITIES
net of Ministers will take “necessary measures to establish an intergovernmental coordination body tasked with consolidating Ukraine’s legal position in countering and restraining Russia’s armed aggression and preparing Ukraine’s consolidated claim against Russia for the implementation of its responsibility under international law for the armed aggression against Ukraine”.
In practice, the implementation of this provision requires a number of laws and bylaws to be passed. These should define the financial, material, staff, organizational, procedural and other aspects to make the work of the intergovernmental body efficient.
Consolidated and detailed legal position of the state in countering Russia’s armed aggression and overcoming its consequences will serve as the legal foundation as Ukraine prepares a consolidated claim against Russia.
Its key elements should include proof of the fact of aggression, the assessment of damage caused by it to the Ukrainian State, society, legal entities and individuals, and claims on the amount and forms of reimbursement of the losses faced by Ukraine as a result of Russia’s aggression.
THE MECHANISM FOR COUNTERING RUSSIA’S ARMED AGGRESSION
Art. 8 of the Law entails the creation of a powerful intergovernmental platform to unite forces and tools involved in countering and restraining Russia’s armed aggression in Donetsk and Luhansk oblasts. Art. 9 describes the competencies and modus operandi for the bodies of strategic and operational management for such forces and tools. Another important provision is Art. 10. It states that “Should Russia’s armed aggression expand beyond the Autonomous Republic of Crimea, Sevastopol, Donetsk and Luhansk oblasts, the forces and tools listed in Art. 8 hereof shall be engaged and used in countering it, in compliance with the procedure established in Art.9 hereof.”
THE FRAMEWORK FOR DE-OCCUPATION POLICIES
Art. 4 states that the priority goal of Ukraine’s state policy is the liberation of the temporarily occupied parts of Donetsk and Luhansk oblasts, and the restoration of constitutional order in that territory.
Art. 5 says that government bodies and their officials shall:
• take relevant diplomatic, sanction and other measures (their range is not limited or specified in the Law),
•engage international assistance, and
• use mechanisms of bilateral international cooperation, international organizations and international courts to keep and increase the sanctions imposed on Russia by the international community.
These and other provisions of the Law, including Art.7.1, establish a legal ground on which Ukraine’s executive authorities can develop a comprehensive and specific action plan to move forward with the deoccupation and re-integration of the occupied parts of Donetsk and Luhansk oblasts. The Law confirms that peaceful, political and diplomatic regulation is a priority. At the same time, it does not exclude the application of coercive measures in line with Art. 51 of the UN Charter.
PROTECTING THE RIGHTS OF CIVILIANS AND SANCTIONS
The Law defines the framework for the protection of the rights of civilians on the temporarily occupied territory based on the fact that the Ukrainian authorities are temporarily unable to function on that territory. Unfortunately, Art. 7 speaks only generally of Russia’s obligations as the occupying state. Under the international humanitarian law, it rather speaks of Russia’s negative obligations for the violations of human rights of civilians, while Russia is also responsible for most of the positive liabilities. The implementation thereof should aim at supporting the life of civilians and protecting human rights.
Human rights advocates and some MPs have been largely concerned about certain restrictions of human rights imposed by the Law on civilians in the areas that neighbor on the conflict zone. This is understandable in peaceful time, but not in wartime.
In a situation where the state has faced an armed aggression and its public order, security interests, territorial integrity and mere existence are threatened, it has the right and obligation to restrict some rights of citizens, particularly in the areas adjacent to the conflict zone. These restrictions are set to ensure effective resistance to the aggressor, as well as to protect the life of the citizens who find themselves within the area of battle.
Under Art.3.2, 9, 12, 14 and 17 of the International Covenant on Civil and Political Rights, and Art. 5, 6, 8 and 13 of the European Convention on Human Rights, the states with a state of emergency or an armed conflict on their territory are entitled to departing from some obligations under the treaties mentioned above. Ukraine made a Statement on such departure approved by the Verkhovna-Rada under No462 dated May 21, 2015, upon the demand of the Council of Europe. Under these documents, Ukraine has introduced certain restrictions on human rights for the period until full termination of Russia’s armed aggression. This entails complete withdrawal of all illegal armed formations that are managed, controlled and funded by Russia, as well as of its occupying armed forces from the territory of Ukraine.
The restrictions of civil rights listed in Article 12 of the Law for the areas adjacent to the zone of conflict are in line with the norms of international law, justified and reasonable.
At different stages of drafting and consideration, some Ukrainian MPs proposed that the Law includes clauses on the termination of diplomatic relations with Russia, the termination of the Treaty on Russia-Ukraine Friendship, the introduction of a visa regime with Russia, the ban of trade with the occupied territory, and more.
UKRAINE AND GLOBAL DEMOCRACIES SHOULD COOPERATE FOR THE PURPOSE OF RESTORING INTERNATIONAL PEACE IN EUROPE BASED ON LAW, EUROPEAN VALUES AND FAIRNESS, NOT FOR THE PURPOSE OF SEEKING WAYS TO MEET RUSSIA’S ILLEGAL DEMANDS
This important and special problem should be regulated by other laws. Specific proposals on consistent development of a consolidated state sanction policy (as discussed in War or imitation of war: A legal view available at ukrainianweek.com) remain important. It would take political will of the country’s leadership to implement them.
THE GEOPOLITICAL ASPECT OF THE LAW
This Law plays a historic role and is extremely important in protecting Ukraine’s vital interests and reinforcing its geopolitical position.
It demonstrates to the world that Ukraine does not accept the consequences of illegal use of force against it, and gives a principled answer to Russia’s lasting armed aggression against Ukraine.
It shows Ukraine’s determination to defend its independent statehood, territorial integrity and constitutional order based on internationally accepted norms and principles, international cooperation and interaction with global democracies.
The Law unequivocally defines Russia as aggressor state. It thus debunks the absurdity of a propagandist myth about Russia’s peaceful mediation in solving an international armed conflict in which it is involved as aggressor state.
In the context of the Law, Russia is what it is in reality: an underminer of international order, not a peacemaker; it brazenly violates fundamental principles of international law and bilateral commitments. The Law is aimed against Russia’s attempts to replace the international order based on the UN Charter with an archaic system with no civilized, universally accepted or understood rules, and with force as the dominant factor.
The Law is an instrument allowing Ukraine to reject the model of conflict regulation that enables the aggressor to accomplish its illegal goals and enjoy impunity. It also reinforces Ukraine’s positions in solution-seeking negotiations based on the UN Charter rather than whims and aspirations of the aggressor.
The Law does not reject the possibility and feasibility of using the positive potential of the Minsk Agreements, therefore it underlines Ukraine’s commitment to the priority of political and diplomatic regulation of the conflict in line with the rule of law. The Minsk Agreements, given their status as a political accord imposed by force and not ratified by the Verkhovna-Rada of Ukraine, and in view of some illegitimate provisions therein, do not create legal grounds for a revision of this Law that has been duly ratified by Ukraine’s Parliament while its provisions are fully in compliance with international law.
In view of modern international law and European civilizational values, it. 10.4 of PACE Resolution titled Humanitarian consequences of the war in Ukraine dated January 23, 2018, raises serious concerns and resolute rejection. It recommends the Ukrainian authorities to “revise the Law … to be based on the Minsk agreements”. This provision was integrated into the PACE Resolution as a result of efforts by Vadym-Novynsky and Yulia-Liovochkina, members of the Ukrainian delegation and the Opposition Bloc party. Their conduct as agents of Russia’s influence is self-explanatory. By contrast, it is difficult to describe the position of EP members who have supported this anti-Ukrainian initiative as anything but shameful, immoral and irresponsible.
As noted before, the Minsk Agreements are the result of Russia’s illegal use of force against Ukraine. They contain a number of provisions that are starkly in violation of modern international law and European values. Therefore, it makes sense to review the Minsk Agreements, not the Law which does not violate international law in any of its clauses.
The approach to establishing legal grounds and ways to regulate the international armed conflict that has unfolded in the center of Europe as a result of Russia’s armed aggression is a test both for Ukraine’s leadership, and for the leaders of global democracies.
Ukrainian authorities should prove capable of delivering a quick and consistent implementation of the Law. They should reject any attempts to revise it and not agree to concessions that undermine Ukraine’s constitutional order and contradict international law.
Western leaders should prove their commitment to the rule of international law, and drop attempts to force Ukraine to blindly fulfill illegal provisions of the Minsk Agreements. They should also expand sanctions against Russia as the state that refuses to stop its aggression against Ukraine and restore international legal order.
Concessions to the aggressor by Ukrainian authorities based on illegitimate clauses of the Minsk Agreements will stand for a betrayal of Ukraine’s national interests. Other democracies will become partners in the crime of aggression by forcing Ukraine to make concessions in favor of the aggressor.
Ukraine and global democracies should cooperate for the purpose of restoring international peace in Europe based on law, European values and fairness, not for the purpose of seeking ways to meet Russia’s illegal demands.
If Ukraine and its western partners fail to effectively counter Russia’s aggression and agree to meet its illegitimate demands and whims they will signal a capitulation and encourage the aggressor to launch new ventures.
History shows that appeasing an aggressor reinforces the culture of impunity, leads to a triumph of force, chaos, arbitrariness and diktat in international relations. The only way to prevent this scenario is by expanding international sanctions against Russia if the aggression against Ukraine continues. There should also be a prospect of creating a wide anti-Putin coalition that would aim at delivering a criminal punishment for the aggressor-state’s leadership for the damage it has caused to Ukraine and its allies that have faced losses as a result of sanctions imposed on the aggressor; at full restoration of international legal order, and at the introduction of restrictive measures against Russia to prevent its aggression in the future.
THIS LAW DEMONSTRATES TO THE WORLD THAT UKRAINE DOES NOT ACCEPT THE CONSEQUENCES OF ILLEGAL USE OF FORCE AGAINST IT, AND GIVES A PRINCIPLED ANSWER TO RUSSIA’S LASTING ARMED AGGRESSION
A solid factor. The law reinforces Ukraine’s position in the search for a solution to the ongoing conflict based on the UN Charter, not on the whims of the aggressor