Lawfare: Ukraine's War against Russia on the Legal Front

Jakob Hedenskog and Petra Jud

Russia’s military aggression since early 2014

against Ukraine has three fronts. The first is ­Crimea.
In February and March of 2014, following the E ­ uromaidan
Countering Russian military aggression
through the courts
In the absence of any possibility to reverse the situation
Revolution, in Kyiv, Russia occupied and annexed the in the occupied territories immediately, Kyiv is seeking
Autonomous Republic of Crimea (ARC) and the city of ­alternative ways to raise the issue of Russian aggression on
Sevastopol. the international level. On 11 March 2021, the Ukrainian
The second front is Donbas. In April 2014, in the National Defence and Security Council approved a state
month following its move on Crimea, the Kremlin strategy for de-occupation and reintegration of ARC and
­instigated a pro-Russian separatist war in the eastern re- Sevastopol. One foreign policy instrument within this stra-
gions of Donetsk and Luhansk, which together constitute tegy is the Crimea Platform. This diplomatic initiative has
­Donbas (Donetsk basin). Since then, over 13,200 ­people the aim of consolidating international efforts on Crimea,
have lost their lives in the war. More than 1.5 million with the ultimate goal of de-occupation and returning
­people have left the war zone to live as internally displa- the peninsula to Ukraine by peaceful means. The Crimea
ced people (IDPs) in other parts of Ukraine, or as refugees ­Platform is planning to invite certain countries’ representa-
abroad. tives for its first summit in Kyiv on 23 August 2021.
The third front in Russia’s military aggression against Already since 2016, Ukraine has been challenging
Ukraine opened up in 2018, in the Black Sea. On 25 ­Russia’s actions on occupied territories in several interna-
­November of that year, Russian border guards under the tional courts and tribunals. An important decision in these
Federal Security Service (FSB) shot at and captured t­ hree processes came on 14 January 2021. The Grand ­Chamber
Ukrainian navy vessels attempting to pass through the of the European Court of Human Rights (ECHR), in
Kerch Strait, between the Black Sea and the Sea of Azov, ­Strasbourg, rendered its admissibility ­decision in the inter­
and placed their 24 servicemen in detention. state claim brought by Ukraine against Russia, regarding
Russian aggression in the Black Sea against Ukraine systematic human rights violations allegedly ­committed
also features the militarisation of Crimea and the Kerch by the latter in Crimea (ARC and Sevastopol). Since
Bridge connecting Russia to the occupied peninsula, the March 2014, international human rights organisations,
­checking of commercial ships destined for Ukrainian ports such as the United Nations Human Rights Council, have
in the Ukrainian territorial waters of the Sea of Azov, the ­documented human rights violations in Crimea, ­including
­demonstration of naval forces and the closing of signifi- arbitrary detention, enforced disappearances, torture and
cant areas of the Black Sea, under the pretext of holding political persecution. Russia, meanwhile, continues to
military exercises. ­refuse the monitors unconditional access to the occupied
Ukrainian and Western sanctions against Russia have peninsula.
not prevented it from continuing its aggression ­against Ukraine has lodged a total of nine applications
Ukraine. The Minsk Accords on the war in Donbas, over- ­connected to the conflict, three of which are included in
seen since September 2014 by the presidents of Ukraine, the case “Ukraine v. Russia (re Crimea)”, with the ECHR.
Russia, Germany, France and the Organization for ­Security Apart from Ukraine’s applications, the ECHR has recei-
and Cooperation in Europe (OSCE), have p ­ revented ved over 7,000 applications lodged by individuals and one
the conflict from escalating, but have not p ­ roven to be by the Netherlands for the shooting down of ­Malaysia
­sufficient as a road map for peace. Since February 2021, Airlines flight MH17. The airplane was hit by a Russian
the OSCE’s Special Monitoring Mission to Ukraine Buk ­missile over the Donetsk region on 17 July 2014 and
(SMM) has noticed increased violations of the latest all 283 passengers and 15 crew were killed. For reasons
­major ceasefire, which came into effect on 27 July 2020. of e­ fficiency, the ECHR combined all the applications

FOI Memo: 7516 RUFS Briefing No. 50

Project No: A12111 March, 2021
Approved by: Mike Winnerstig
connected to MH17, giving Ukraine a better chance objection concerning its own jurisdiction, acknowledging
of winning the legal battle. Firstly, the Netherlands has that the case would require the PCA “to decide, directly or
­allocated substantial resources to investigating the ­incident, ­implicitly, on the sovereignty of either Party over Crimea”.
resulting in a strong body of evidence. Secondly, ­Ukraine’s Nevertheless, lawfare presents one avenue for Ukraine to
case gains legitimacy by having a non-warring party as keep the conflict between the two states in the i­nternational
co-complainant. limelight and persuade the Western states to maintain the
Besides the ECHR, Ukraine has also filed complaints sanctions on Russia. Ukraine cannot count on military
regarding the incident with the International Tribunal for support from its Western partners, but these countries
the Law of the Sea (ITLOS), the International Court of also have their own experiences of Russian ­meddling in
Justice (ICJ), and the Permanent Court of ­Arbitration ­elections, cyber-attacks and the use of nerve agents banned
(PCA). While the cases lodged with the ECHR, the ICJ by the chemical weapons treaty. As more states realise the
and the PCA on MH17 are still pending, the ITLOS need for countermeasures, Russia will also have to defend
­delivered its Order on another complaint, regarding the itself in even more courts and international fora.
Kerch Strait Incident, on 25 May 2019: the three vessels Indeed, decisions from international courts are authori-
were to be returned and the servicemen released within tative for all international organisations, so the future will
a month. Russia neither attended the court hearings, most likely see references to their decisions.
nor adhered to the time limits prescribed in the ITLOS For example, one Russian objection has been that its
­order. The 24 seamen were at last returned to Ukraine in a seizure and illegal annexation of Crimea merely imple-
­prisoner exchange on 7 September 2019, and the vessels a mented the wish of the Crimean people expressed in the
little more than a month later. so-called “referendum” on 16 March 2014. However, it has
Furthermore, the ICJ is handling allegations that been clear since the beginning that not only had Russian
­Russia has violated the International Convention for the special operations forces already landed on the peninsula
Suppression of the Financing of Terrorism, as well as the on 20 February 2014, but that this was even the day before
Convention on the Elimination of All Forms of R ­ acial the departure of the ousted Ukrainian president, Viktor
­Discrimination (CERD). Ukraine accuses ­Russia of Yanukovych, from Kyiv. This date is minted on the medal
­running a “campaign of cultural erasure” against ­Crimean “For the return of Crimea”, which the Russian president
Tatars and ethnic Ukrainians in Crimea. In a similar awards soldiers who took part in the military operation.
­litigation, when Georgia accused Russia of having v­ iolated With its decision of 14 January 2021, the ECHR put
the CERD in 2008, the ICJ upheld Russia’s objection to an end to the discussion of when Russia took control over
the court’s jurisdiction and decided not to proceed with Crimea, as it says that it was no later than 27 February,
the case. Ukraine learned from the flaws in Georgia’s appli­ when Russian special operation forces seized the building
cation, with the result that this time around the ICJ over- of the Supreme Council of Crimea and the building of the
ruled Russia’s objection. Council of Ministers in Simferopol, and not on the basis of
Finally, the International Criminal Court (ICC) has any wishes expressed on 16 March. This means that there
kept an eye on the conflict since 2014. The preliminary was no “peaceful expression of will of the i­nhabitants of
examination was completed on 11 December 2020, the peninsula” to justify Russia’s moves. The ECHR thus
­concluding that a formal investigation should be initialised. debunked this myth of the Kremlin, which was one of
Russia’s key arguments in justifying the illegal annexation
Implications of Crimea.
These court processes are unlikely to change Russia’s Final judgments in most of these cases will take several
­behaviour in Ukraine, and may not necessarily lead to the years to pass. The already long processes of understaffed
prosecution of Russian citizens fighting in the Donbas. international courts are prolonged by the current p­ andemic
So far, Russia’s standard answer is that the international restrictions, which have extended several time limits for
courts and tribunals lack the authority and competence memorials and counter-memorials of the involved parties.
to consider the issue of the occupation of Crimea. The This makes these processes into not only an issue of
­Russian argument has worked in one case, so far: in ­lawfare, but also a war of attrition.
the coastal rights dispute, the PCA Tribunal upheld the

Jakob Hedenskog is a Deputy Research Director at FOI’s Russia and Eurasia Studies Programme, www.foi.se/russia.
Petra Jud is an intern at the same programme.

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