The Ukrainian Crisis: A Test for International Law?

Abstract

The ongoing conflict in Ukraine raises significant questions related to the fundamental features of international law. The chief concern is the efficacy of the said legal order as well as territorial integrity and right to self determination. Since the political crisis has led to a military clash, so-called hybrid warfare and the rules on occupation are also discussed. It seems the current geopolitical scene has led to what some perceive as a watering down of the rules of international law and further exposure of the flaws of the UN. International law, however, despite its shortcomings and limitations, still offers valid solutions to the international community as a way to solve not only the discussed conflict, but also many others.

Full text

37
POLISH REVIEW OF INTERNATIONAL AND EUROPEAN LAW
2016, Vol. 5, Issue 1
THE UKRAINIAN CRISIS:
ATESTFORINTERNATIONAL LAW?
Marcin Marcinko*, Bartosz Rogala**¹²
ABSTRACT: e ongoing conict in Ukraine raises signicant questions
related tothe fundamental features ofinternational law. e chief con-
cern is the ecacy of the said legal order as well as territorial integrity
and right toself determination. Since the political crisis has led toamili-
tary clash, so-called hybrid warfare and the rules on occupation are also
discussed. It seems the current geopolitical scene has led towhat some
perceive as awatering down of the rules ofinternational law and further
exposure of the aws ofthe UN. International law, however, despite its
shortcomings and limitations, still oers valid solutions tothe interna-
tional community as away tosolve not only the discussed conict, but
also many others.
* Assistant professor at the Jagiellonian University in Krakow, Poland; Chair
ofPublic International Law; PhD in law. Chairman of the National Commission for
Dissemination of International Humanitarian Law at the Polish Red Cross Main Board;
member of the International Law Association – Polish Group.
** PhD seminar participant at the Jagiellonian University in Krakow, Poland; LLM,
University of Cambridge.
e paper was completed on ... In this paper the International
Humanitarian Fact-Finding Commission is referred toas IHFFC.
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Marcin Marcinko, Bartosz Rogala
1. Introduction
e ongoing humanitarian crisis and armed conict in Ukraine,
started in , raises important issues related tothe current state ofin-
ternational law, such as, chiey, the eectiveness of international law
itself¹. e aim of this article is tocontribute tothe continuing discussion
on this subject². Issues discussed in the present article respectively refer
tothe legal assessment of the type of intervention in Ukraine, deter-
mination whether an armed conict inUkraine may be called a“hybrid
warfare”, analysis of whether the Crimean peninsula is being occupied by
the Russian Federation, the role the UN plays in the Ukrainian crisis and
the general repercussions on international law resulting from this conict.
e analysis, however, is preceded by brief characteristics of legal and
international relations that, in view of treaties and conventions in force
(but also customary international law), currently bind Russia and Ukraine.
2. International legal background of the Russia-Ukraine
relations
Looking at the very core of international law, i.e. jus cogens, it is clear
that acts of aggression are prohibited by these peremptory norms. It is
notable that jus cogens norms are applicable toall states irrespective of any
specic treaty obligations, without any possibility of derogation³.
Apart from the most basic rules of jus cogens, one should note both
Russia and Ukraine are bound by the Charter of the United Nations,
¹ United Nations for the Coordination of Humanitarian Aairs, Ukraine – 10 things you
need toknow, .., http://www.unocha.org/top-stories/all-stories/ukraine--
things-you-need-know (accessed: ..). See also: United Nations Meetings Coverage
and Press Releases, Humanitarian Conditions Will Continue toDeteriorate if Crisis in Easter n
Ukraine Persists, Senior Ocial Tells Security Council, rd SC’s Meeting, SC/,
http://www.un.org/press/en//sc.doc.htm (accessed: ..).
² See, e.g.: Debate Map: Ukraine Use of Force, Oxford Public International Law (OPIL),
http://opil.ouplaw.com/page/ukraine-use-of-force-debate-map (accessed: ..)
³ M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligation Erga Omnes,
‘Law and Contemporary Problems’ , vol. , p. , at pp. -.
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39
The Ukrainian Crisis: A Test for International Law?
as members of the UN. e Charter includes, inparticular, important
provisions on obligations concerning respect for sovereignty (in particu-
lar – Article .), self-determination (Article .), the principle of non-inter-
ference (Article .). Moreover, Article . contains the following obligation:
“All members shall settle their international disputes by peaceful means
(…)”, and Article . obliges states to“refrain in their international rela-
tions from the threat or use of force”. Additionally, under modern interna-
tional law, forcible acquisitions of territory are prohibited, as it has been
stated in the Friendly Relations Declaration: “e territory of aState shall
not be the object of acquisition by another State resulting from the threat
or use of force. No territorial acquisition resulting from the threat or use
of force shall be recognized as legal”.
Furthermore, Ukraine and Russia are signatories of specic legal
instruments (which are also relevant in the present context), in which
Russia has expressly recognized Ukraine and its territorial integrity, i.e.
in particular:
– the Alma-Ata Declaration;
– the Agreement between the Russian Federation and Ukraine on the Status
and Conditions ofthe Russian Federation Black Sea Fleet on Ukrainian
Territory (in particular Article  item  and Article  item  – on the obli-
gation of Russian military units torespect Ukrainian sovereignty);
– the so-called Kharkiv Pact of , which prolonged the lease of the naval
facilities in Crimea;
 Charter of the United Nations, San Francisco, ..,  UNTS . As regards the
UN members – see: Members of the United Nations, http://www.un.org/en/members/
(accessed: ..)
 Declaration on Pr inciples of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations, GA
Res  (XXV), ... See also: R. Geiss, Russia’s Annexation of Crimea: e Mills
of International Law Grind Slowly but ey Do Grind, ‘International Law Studies’ ,
vol., at p. , pp. -.
 Alma-Ata Declaration, .., ‘International Legal Materials’ , vol. ,
at p. .
 Agreement between the Russian Federation and Ukraine on the Status and
Conditions ofthe Russian Federation Black Sea Fleet’s on Ukrainian Territory, Agreement
ratied by the Ukrainian Law N -XIV (-) of .., http://zakon.rada.gov.
ua/laws/show/_ (accessed: ..).
 e agreement between Ukraine and the Russian Federation concerning stay of
the Black Sea eet of the Russian Federation in the territory of Ukraine, Agreement
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40
Marcin Marcinko, Bartosz Rogala
– Treaty on Friendship, Cooperation, and Partnership between Ukraine
and the Russian Federation of .., in particular Articles  and .
Moreover, in the Budapest Memorandum on Security Assurances of
December , its signatories – Russia, the US, and the UK – provided
anon-binding political conrmation of Ukraine’s sovereignty and integrity,
in exchange for Ukraine giving up the nuclear weapons in its possession
at the time (strictly speaking – Ukraine’s accession tothe Treaty on the
Non-Proliferation of Nuclear Weapons).
e regulations associated with the OSCE system are also of partic-
ular relevance here, as the OSCE is aregional security arrangement, under
Chapter VIII of the UN Charter, active inter alia in Eastern Europe. e
roots of the OSCE, i.e. the Helsinki Accords¹ have envisaged basic rules
which particularly pertain tothe issue at hand, this includes the following
principles:
– II) refraining from the threat or use of force,
– III) inviolability of frontiers,
– IV) territorial integrity of States,
– VI) non-intervention in internal aairs,
– VII) respect for human rights and fundamental freedoms, including the
freedom of thought, conscience, religion or belief (especially with respect
tothe right of the minorities),
e Accords, given their non-binding character, constitute only
amoral obligation for their signatories, but have asignicant value. In par-
ticular, the signatories, including the USSR (Russia’s predecessor), pledged
torespect the territorial integrity and political independence of all nations
and torefrain from threatening or using force against other countries.
What is particularly signicant was the fact that the USSR, albeit under
much dierent political circumstances, insisted on introducing provisions
on respecting existing borders – in the hope of securing its post WWII
ratied by the Ukrainian Law N -VI (-) of .., http://zakon.rada.gov.
ua/laws/show/_ (accessed: ..).
 A. D. Sorokowski, Treaty on Friendship, Cooperation and Partnership between Ukraine
and the Russian Federation, ‘Harvard Ukrainian Studies’ , vol.  – Special Issue:
Ukraine in the World: Studies in the International Relations and Security Structure of
aNewly Independent State, at pp. -.
¹ e Final Act of the Conference on Security and Cooperation in Europe, ..,
‘International Legal Materials’ , vol. , at p. .
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41
The Ukrainian Crisis: A Test for International Law?
territorial gains¹¹. erefore, it is obvious that Russia is bound, in multiple
ways, torespect the sovereignty and the territorial integrity of Ukraine.
On the contrary, there are several arguments which seem tofavour
the position of the Russian government and of the rebels in the East
ofUkraine, regarding the principle of self-determination and ofhuman-
itarian intervention/protection of Ukrainian citizens who are of Russian
ethnicity, following what Russia views as acoup in Kyiv¹². Not going into an
extensive discussion on the legality of the ousting of President Yanukovych,
who was indeed democratically elected, one can clearly see breaches of
Ukraine’s Constitution in the said process, despite subsequent parliamen-
tary approval, (however, the ousting was legitimized by the elections of
Petro Poroshenko tothe presidential oce – in elections widely perceived
as free and democratic)¹³.
Do these occurrences give Russia the right toannex Crimea, even
after areferendum (which was criticized by some as not fullling recog-
nized standards) and (allegedly) support rebels in other regions of Ukraine?
Does the UN system oer any help in the discussed crisis? What are the
repercussions for wider international law?¹
¹¹ J. Hiden, V. Made, D. J. Smith (eds.), e Baltic Question during the Cold War,
Routledge, London-New York , at p. .
¹² TASS Russian News Agency, Putin’s letter on use of Russian in Ukraine goes toupper
house, http://en.itar-tass.com/russia/ (accessed: ..). See a lso: e Military
Doctrine of the Russian Federation approved by Russian Federation presidential edict
on  February  [English translation by the Carnegie Endowment], http://carneg-
ieendowment.org/les/russia_military_doctrine.pdf (accessed: ..).
¹³ Organization for Security and Co-operation in Europe, Statement of prelimi-
nary ndings and conclusions on the  January  presidential election in Ukraine,
.., http://www.osce.org/odihr/elections/?download=true (accessed:
..).See also: Organization for Security and Co-operation in Europe, Ukraine:
Early Presidential Elections  May : Final Report, ..,http://ww w.osce.org/
odihr/elections/ukraine/?download=true (accessed: ..).
¹ Organization for Security and Co-operation in Europe, OSCE Chair says Crimean
referendum in its current form is illegal and calls for alternative ways toaddress the
Crimean issue, http://www.osce.org/cio/ (accessed: ..). See also: Press
Release .., North Atlantic Treaty Organisation, Secretary General statement
on the attack on Mariupol, http://www.nato.int/cps/en/natohq/news_.htm
(accessed: ..)
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42
Marcin Marcinko, Bartosz Rogala
3. e (supposed?) intervention in Ukraine
One of the basic rules of international law, the above mentioned rule
of non-interference, whilst not directly enclosed in the UN Charter, can be
interpreted from it (Article  item  in particular). e UN System further
denes non-interference in the Friendly Relations Declaration:
No State or group of States has the right tointervene, directly or
indirectly, for any reason whatever, in the internal or external aairs
of any other State. Consequently, armed intervention and all other
forms of interference or attempted threats against the personality
of the State or against its political, economic and cultural elements,
are in violation of international law¹.
In seems both the Western block as well as Russia did not respect
the discussed rule in the recent years. e US and EU have openly sup-
ported the Maidan movement and the so-called Orange Revolution in ,
whereas Russia supported President Yanukovych, especially in , and
was accused of using natural resources as ameans of inuencing policy. It
is however notable that “the interference must be forcible or dictatorial,
or otherwise coercive, in eect depriving the state intervened against
control over the matter in question. Interference pure and simple is not
intervention”¹.
ere is an interesting argument which is worth considering – the
toppling of Yanukovych occurred, as it seems, in breach of Ukraine’s
internal laws. e former Ukrainian leader “invited” Russian troops tohis
country, although retracted the invitation later on¹. However, assuming
the change of government in Ukraine could be indeed classied as acoup
d’état, it does not seem in breach of international law. Coup d’états are not
forbidden by international law, although there is atendency of penalizing
¹ Declaration on Principles of International Law concerning Friendly Relations...
op. cit.
¹ R . Jennings, A. Watts (eds.), Oppenheim’s International Law, vol. I, Oxford University
Press, Oxford , at p. .
¹ BBC News Europe, Ukraine’s Yanukovych asked for troops, Russia tells UN, http://
www.bbc.com/news/world-europe- (accessed: ..); see also: C. Kriel,
V.Isachenkov, Ousted Ukrainian president Viktor Yanukovych: Iwas wrong toinvite Russian
into Crimea, ‘e Sydney Morning Herald World’, .., http://www.smh.com.au/
world/ousted-ukrainian-president-viktor-yanukovych-i-was-wrong-to-invite-russia-
into-crimea--zqpxa.html (accessed: ..)
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43
The Ukrainian Crisis: A Test for International Law?
such changes as athreat todemocracy¹. On the other hand, there were
precedents in the past, such as the  Liberia and  Sierra Leone
interventions, based on invitations by ousted democratic governments¹.
One should consider the conditions forhumanitarian intervention
(and the related concept of Responsibility toProtect) – asajustication for
the use of force, while taking into account its questionable validity as an
institution of international law, the chief concern being the possibility of
its abuse². It seems that there ismuch legitimacy for humanitarian inter-
ventions in cases of gross human rights violations, genocide, uncontrollable
economic and social chaos and alack of internal security, combined with
alack of political will in the UN Security Council. However, there is an
important issue of proportionality and thresholds, in other words – when
does agiven situation warrant an intervention? Who is todecide? Examples
of such operations happening without the approval of the UN Security
Council are the aforementioned Operation “Iraqi Freedom” and the 
NATO bombings in Kosovo, which on one hand were not in conformity
with the UN use of force rules (the Charter in particular), but on the other
hand, had avarying degree of legitimacy²¹.
In this context, the question of abenchmark for undertaking the
said intervention became crucial. is issue was discussed by the UN’s
General Assembly in . e discussion was started by remarks of the
GA’s president Miguel d’Escoto Brockmann, who identied four benchmark
questions pertaining tothe concept of Responsibility toProtect (RP):
¹ J. d’Aspremont, R esponsibility for Coups d ’Etats in International Law, ‘Tulane Jour nal
of International & Comparative Law’ , vol. , no , at p. , pp. -.
¹ Z. Vermeer, Intervent ion with the Consent of aDeposed ( but Legitimate) Government?
Playing the Sierra Leone card, ‘EJIL Blog’, .., http://www.ejiltalk.org/interven-
tion-with-the-consent-of-a-deposed-but-legitimate-government-playing-the-sierra-le-
one-card/ (accessed: ..).
²  World Summit Outcome, GA Res /, ... See also: M. Shaw, Prawo
międzynarodowe [International Law], Książka iWiedza, Warszawa , at pp. -. See:
Case concerning military and paramilitar y activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment of .., ICJ Reports , at para.
.
²¹ A. de Zayas, Peace as ahuman right: the jus cogens prohibition of aggres sion, ‘Alfred de
Zayas’ Human Rights Cor ner’, .., http://dezayasalf red.wordpress.com////
peace-as-a-human-right-the-jus-cogens-prohibition-of-aggression/#_ftnref (ac-
cessed: ..). See also: R. Goodman, Humanitarian Intervention and Pretexts for
War, ‘American Journal of International Law’ , vol. , at p. , pp. -, .
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44
Marcin Marcinko, Bartosz Rogala
)
do the rules apply in principle, and is it likely that they will be applied
in practice equally toall nation-states, or, in the nature of things, is
it more likely that the principle would be applied only by the strong
against the weak?
)
will adoption of the RP principle in the practice of collective se-
curity more likely enhance or undermine respect for international
law? Tothe extent that the principle is applied selectively, in cases
where public opinion in SC’s permanent ve Member States supports
intervention, as in Darfur, and not where it is opposed, as in Gaza,
it will undermine law.
) is the doctrine of RP necessary and, conversely, does it guarantee
that states will intervene toprevent another Rwanda?
) do we have the capacity toenforce accountability upon those who
might abuse the right that RP would give nation-states toresort
tothe use of force against other states?²²
e importance of the questions raised by Mr. d’Escoto Brockmann
are at the very core of international law – as it seems RP and humanitarian
interventions, though noble in their principles, can easily lead tochaos. e
demonstrating meeting of the conditions of humanitarian intervention in
the discussed Ukrainian case (and all other one) is amostly factual matter.
Only in some rare cases, such as the tragic case of Rwanda, is the matter
clear from the get go.
Moving tothe next issue, one should analyze the notion of aggres-
sion as understood by international law. is prohibition of the use of
force has been addressed in many resolutions of the SC and of the GA. e
most signicant is the GA Resolution  (XXV) of.., namely,
the Resolution on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter
of the United Nations. It stated that:
Every State has the duty torefrain in its international relations from
the threat or use of force against the territorial integrity or politi-
cal independence of any State, or in any other manner inconsistent
with the purposes of the United Nations. Such athreat or use of
force constitutes aviolation of international law and the Charter
of the United Nations and shall never be employed as ameans of
²² M. d’Escoto Brockmann, Statement at the Opening of the ematic Dialogue of the
General Assembly on the Responsibility toProtect, ..,http://www.un.org/ga/pres-
ident//statements/openingrp.shtml (accessed: ..).
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45
The Ukrainian Crisis: A Test for International Law?
settling international issues. Awar of aggression constitutes acrime
against the peace, for which there is responsibility under international
law. In accordance with the purposes and principles of the United
Nations, States have the duty torefrain from propaganda for wars
of aggression²³.
Looking at the  Denition of Aggression, which has since been
part of customary international law and astatement by government o-
cials, some scholars may argue there might have been breach of interna-
tional law in the present case². In particular, the usage of armed forces
on the territory of Crimea also seems tobeinbreach of the Black Sea
Fleet Partition Treaty and other important international norms, such as
the non-interference rule and infringement upon territorial integrity. As
tothe secessions of Crimea and the two “people’s republics” in the east of
Ukraine, it should be noted that general international law does not pro-
hibit secessions, as the International Court of Justice ruled in its famous
advisory opinion on Kosovo’s independence². at given, the Kosovo case,
in away, served as an incentive for further secessions and similar occur-
rences. Moreover, some of the rationale of the separatists, i.e. persecution
by the Ukrainian government was highly contested, although there were
some undisputed moves limiting the rights of ethnic Russians on the part
of the new Ukrainian government. at being said – there is one factual
important matter – would the Ukrainian authorities allow referenda in
Crimea or in the eastern provinces? e UK government did so recently
in the case of Scotland – but would that be the case in Ukraine as well,
especially in atime of such an upheaval?²
e references given by the Russian government tofairly recent
precedents, as away toprovide legitimacy toits activities in Ukraine are
not entirely baseless. In both cases, without aUN SC’s approval, we had
²³ United Nations, General Assembly, Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations, Res  (X XV), (..), available from https://
documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR///IMG/NR.
pdf?OpenElement.
² United Nations, General Assembly, Denition of Aggression, Res.  (XXIX),
(..).
² Accordance with international law of the unilateral declaration of independence
in respect of Kosovo, Advisory Opinion, .., ICJ Reports , at para. .
² See: R. Müllerson, Ukraine: Victim of Geopolitics, ‘Chinese Journal of International
Law’ , vol. , at p. , pp. -.
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46
Marcin Marcinko, Bartosz Rogala
aunilateral action of the US and its allies and of NATO aimed at sovereign
territories. us, if the “West” bends the law toserve itspurposes, why
should other powers follow international law in its classical form? However,
it should be noted in cases of Iraq and Kosovo that the US was not seeking
territory for itself and both aforementioned countries more or less function
on their own now (albeit with huge problems). Moreover, Kosovo declared
its independence only after some years after the intervention, whereas
Crimea did so only after some weeks. What were conrmed tobeRussian
troops seized its territory, only tojoin the Russian Federation shortly
afterwards. Furthermore, there was credible evidence of atrocities hap-
pening in Kosovo (whereas the WMD’s threat in Iraq proved tobe untrue).
Regarding the breach of the Ukrainian constitution, one should note seces-
sions, as away toexercise the right toself-determination, should be not
constrained by domestic law and there does not seem tobe aneed or arule
requiring aUN presence in the process. However, one can question the
authority of areferendum held in the presence of overwhelming military
force. Moreover, the legitimacy of the referendum was further weakened
by the questions posed tothe voters – there was no choice tomaintain the
status quo, the voters were given the possibility tosupport reunication
with Russia or torestore the  Constitution of the Republic of Crimea
(which gave far more powers tothe Crimean parliament, which in turn
would likely result in ade facto separation of the peninsula from Ukraine)².
Furthermore, even though international law does allow unilateral
declarations of independence, the ICJ, in the aforementioned advisory
opinion pertaining toKosovo, noted such declarations might be consid-
ered illegal if they are associated with an unlawful use of force, such as
the use of military force on the territory of another country without its
consent². What is more, it was Russia itself which was critical of the legal-
ity of unilateral declarations of independence, in the Kosovo proceedings
before the ICJ².
² BBC News, Ukraine crisis: Crimea parliament asks tojoin Russia http://www.bbc.
com/news/world-europe- (accessed: ..).
² ICJ, Accordance with international law of the unilateral declaration of indepen-
dence in respect of Kosovo, op. cit., para. .
² Written statement of the Russian Federation, Accordance with international
law of the unilateral declaration of independence in respect toKosovo, request for
advisory opinion, .., VII. Conclusions point , http://www.icj-cij.org/docket/
les//.pdf (accessed: ..).
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47
The Ukrainian Crisis: A Test for International Law?
e secession of Crimea could however be deemed legal if it would be
accepted in future by Ukraine³. It could be also argued that the dispute
over the legality of the recent happenings in Crimea and other parts of
Ukraine is, tosome degree, possesses more of afactual character than
alegal one. One of the parties claimed up toapoint the exceptional condi-
tion for self-determination, and, perhaps, humanitarian intervention had
been met, whether the other says that was not the case. is shows the
degree of uncertainty of the practice of international law in the discussed
area. Nevertheless, fairly recently top ocials of the Russian government
seemed tohave changed their stance, by admitting in adirect fashion the
“spontaneous” uprising in Crimea was in fact apre-planned event, directly
supported by the Russian military³¹. In this way, aclear path towards
acomplete abandonment of international law was opened, leaving us with
an unclear notion of legitimacy.
4. Armed conict in Ukraine – a“hybrid war”?
Regardless of one’s opinion whether what we are witnessing now on
the territory of Ukraine is an act of aggression and armed intervention or
mere “humanitarian assistance”, the fact remains that as aresult of the
incidents in question, the Crimean Peninsula and eastern Ukraine faced
the hostilities escalating into combat operations during which the parties
tothe conict (belligerents), both the regular armed forces and insurgents
should be enforced toobserve the principles and standards of international
humanitarian law. Signicantly, the assessment of the conduct of the par-
ties involved in the conict, from the point of view of humanitarian law,
must refer both tothe aggressor’s state as well as the targeted state; thus,
no references are being made to“just” or “legitimate war”, and infringement
of laws and customs of war may not be justied by simply invoking “good
cause” or the right toself-determination in other aspects, not matter how
humanitarian they may appear.
International humanitarian law is abranch of international law
which regulates the conduct of armed conict seeking toprotect and respect
³ R. Geiss, op. cit., at pp. -.
³¹ RT, Putin acknowledges Russian military serviceman were in Crimea, https://www.
rt.com/news/crimea-defense-russian-soldiers-/ (accessed: ..).
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48
Marcin Marcinko, Bartosz Rogala
the rights of civilians and combatants who have ceased participating in
military operations (e.g. due toinicted wounds or when captured as pris-
oners-of-war); IHL also attempts tomitigate the eects of warfare by
restricting and regulating the means and methods of any such warfare. It
is of great importance in the case of the Ukrainian conict because this
particular conict is being perceived as a“hybrid war” which denotes
aspecic military strategy that combines conventional warfare, the use
of most modern and advanced technology (e.g. precision targeting in crit-
ical infrastructure, operations undertaken by the intelligence services)
and irregular warfare (no formal declaration of war, employing armed
civilians, propaganda warfare, avoiding open confrontation with regular
forces in battleeld)³². Generally speaking, in so-called hybrid wars “actors
use avariety of tactics, techniques, and procedures that t their goals and
todecide aconict successfully”³³. In awider perspective, hybrid wars
involve multilayered eorts designed todestabilize afunctioning
state and polarize its society. Unlike conventional warfare, the cen-
tre of gravity in hybrid warfare is atarget population. e adversary
tries toinuence inuential policy-makers and key decision makers
by combining kinetic operations with subversive eorts. e ag-
gressor often resorts toclandestine actions, toavoid attribution or
retribution³.
In truth, when taking acloser look at the doings of the “little green
men” and separatist forces in Ukraine it would not be dicult topoint at
anumber of features characteristic of such warfare: the use of regular and
irregular forces, the unclear distinction between civilians and soldiers,
and military activities in the situation when war is actually not declared³.
³² P. Szymański, J. Gotkowska, e Baltic states’ Territorial Defence Forces in the
face of hybrid threats, ‘OSW Commentary’ , no , at p. , http://www.osw.waw.
pl/en/publikacje/osw-commentary/--/baltic-states-territorial-defence-forc-
es-face-hybrid-threats (accessed: ..)
³³ R. De Wijk, Hybrid Conict and the Changing Nature of Actors, [in:] Y. Boyer,
J.Lindley-French (eds.), ‘e Oxford Handbook of War’, Oxford HandbooksOnline, ,
http://www.oxfordhandbooks.com/view/./oxfordhb/../
oxfordhb--e- (accessed: ..).
³ P. Pindják, Deterr ing hybrid warfare: achance for NATO and the EU towork together?,
‘NATO Review Magazine’, , http://www.nato.int/docu/review//also-in-/
Deterring-hybrid-warfare/EN/index.htm (accessed: ..).
³ M. Seselgyte, Can Hybrid War Become the Main Security Challenge for
Eastern Europe?, .., http://www.europeanleadershipnetwork.org/
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49
The Ukrainian Crisis: A Test for International Law?
According tosome reports, which were partially conrmed by the Russian
authorities³, Russian forces deployed toCrimea and acting under the dis-
guise of local self-defence forces, without insignia, blockaded the Ukrainian
military personnel in military bases and other selected military objects.
Subsequent acts of capturing or taking over any such objects required only
todefeat the passive resistance of the Ukrainian troops (such actions were
handled in almost abloodless manner). During the operation of taking
over the Crimean peninsula radio silence was imposed (therefore it was
impossible todetermine troop positions, executive centres and communi-
cations networks). Self-defence forces had various uniforms without rank
insignia or badges which presented amajor diculty and hindered the
identication of independent formations and troops. Insurgent vehicles
moved freely around Crimea without registration plates; furthermore,
civilian vehicles, used toprotect the local inhabitants, were repainted for
military purposes³.
e supposed Russian oensive in eastern Ukraine, after the procla-
mation of the establishment of the contested Donetsk and Luhansk People’s
Republics, has taken on amore direct course. According tosome reports,
on .., regular units of the Russian army crossed the border into
eastern Ukraine, as areaction tothe threat of the eective collapse of the
above-mentioned republics.
can-hybrid-war-become-the-main-security-challenge-for-eastern-europe_.html
(accessed: ..). See also: S. Jones, Ukraine: Russia’s new art of war, www.ft.com/
cms/s//eaefa-ec-e-b-feabdc.html#axzzdyxAtXo (accessed:
..)
³ On .., Russian President Vladimir Putin conrmed the involvement of
Russia with regard tothe actions in Crimea – he stated that “Russian servicemen backed
the Crimean self-defense forces”, but he denied using Russian military personnel in east-
ern Uk raine stating “that all of this is being done by local residents” (see: K. Lally, Putin’s
Remarks Raise Fears of Future Moves against Ukraine, ‘Washington Post’, .., http://
www.washingtonpost.com/world/putin-chan ges-course-admits-russian-troops-were-
in-cr imea-before-vote////ba-c -e-bfa-beabcf_story.html
(accessed: ..).
³ M. Wrzosek, Konikt rosyjsko-ukraiński azmiany wteorii prowadzenia działań mil-
itarnych [Russian-Ukrainian Conict vs. Changes in eory of Military Operation Conduct],
Bellona , vol. , no , at p. , p. . See also: R. Heinsch Conict classication in
Ukraine: e Return of the “Proxy War”?, ‘International Law Studies’ , vol. , at p.,
pp. -; S. R. Reeves, D. Wallace, e Combatant Status of the “Little Green Men” and
Other Participants in the Ukraine Conict, ‘International Legal Studies’ , vol. , at
p. , pp. -.
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Marcin Marcinko, Bartosz Rogala
e main objective of the Russian oensive [was] todemonstrate
tothe government in Kyiv that it cannot resolve the conict through
military means, and that it is necessary tostart talks with the
separatists (andde facto with Russia) on the political and geopo-
litical status of Ukraine. is would lead toapolitical agreement
which creates the mechanisms for making Ukraine dependent on
Russia³.
It seems that Moscow decided toback up separatists not only by
abundant supplies of armaments, ammunition and sending fresh vol-
unteers (including troops from Russia-based units who are nominally
“on leave”), but also by the direct contribution of Russian troops in war-
fare as well as artillery support. It should be noted that Russian soldiers
were ghting without insignia, which resembles the situation observed
in Crimea. Furthermore, the strike by Russian troops was accompa-
nied by the intensication of ghting by the separatist forces in other
areas, gradually receiving support from troops of the Russian Airborne
Forces³.
What we can observe in Ukraine is simultaneously occurring guerrilla
and conventional ghting, together with economic, cyber and information
war – but should we really call these activities a“hybrid war”? As rightly
noted by Damien Van Puyvelde,
any threat can be hybrid as long as it is not limited toasingle form
and dimension of warfare. When any threat or use of force is dened
as hybrid, the term loses its value and causes confusion instead of
clarifying the reality of modern warfare¹.
Besides, “[m]ost, if not all, conicts in the history of mankind
have been dened by the use of asymmetries that exploit an opponent’s
³ M. Menkiszak, R. Sadowski, P. Żochowski, e Russian military intervention in
eastern Ukraine, ‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/anal-
yses/--/russian-military-intervention-eastern-ukraine (accessed: ..).
³ Ibid. See also: R. Heinsch, at op. cit., pp. -; S. R. Reeves, D. Wallace op. cit.,
at pp. -.
 M. Seselgyte, op.cit. Compare: J. Berzins, Russian New Generation Warfare:
Implications for Europe, .., http://www.europeanleadershipnetwork.org/rus-
sian-new-generation-warfare-implications-for-europe_.html (accessed: ..).
¹ D. Van Puyvelde, Hybrid war – does it even exist?, ‘NATO Review Magazine’ ,
http://www.nato.int/docu/review//Also-in-/hybrid-modern-future-war-
fare-russia-ukraine/EN/index.htm (accessed: ..).
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51
The Ukrainian Crisis: A Test for International Law?
weaknesses, thus leading tocomplex situations involving regular/irregular
and conventional/unconventional tactics”².
In fact, from the point of view of the application of IHL standards, it
makes no dierence whether an armed conict in Ukraine is classied as
“hybrid” warfare and whether any other non-military measures, say, pro-
paganda war, are involved. Under art. , which is common tofour Geneva
Conventions on the Protection of War Victims of , the aforementioned
conventions apply both in the case of declared war as well as armed conicts
continuing without the formal declaration of war being made³. What is
really important for international law experts is tofocus on and answer
the question whether Ukrainian warfare meets the criteria of international
conict (where at least two opposing states are engaged) or rather anon-in-
ternational one (which is dened as an armed confrontation occurring
within the territory of asingle State and in which, in simple terms, rebel-
lious armed forces are engaged against the central government). ough it
may appear that both in Crimea and eastern Ukraine the government of
Ukraine was engaged in actions aiming at defeating the separatist forces
and so this conict bears the hallmarks of non-international confrontation,
nevertheless, taking into the activity of the “little green men” in Crimea
and the reported decisive Russian military involvement in maintaining and
backing the separatist forces and the overall regular character of warfare
including the whole assortment of heavy weaponry involved, the discussed
war deserves tobe called the Russian-Ukrainian armed conict.
Although Moscow consequently rejects its military engagement
in Ukraine, the above-mentioned facts do not leave any room for doubt
that Russia actively participated in the organization and coordination of
² Ibid.
³ See: Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field (First Geneva Convention), ..,  UNTS
; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), ..,
 UNTS ; Geneva Convention Relative tothe Treatment of Prisoners of War (ird
Geneva Convention), ..,  UNTS ; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention), ..,
 UNTS .
 A. Wilk, W. Konończuk, Ukrainian-Russian war under the banner of anti-terrorist op-
eration, ‘OSW Analyses’, .., www.osw.waw.pl/en/publik acje/ana lyses/--/
ukrainian-russian-war-under-banner-anti-terrorist-operation (accessed: ..).
Compare: S. R. Reeves, D. Wallace, op. cit., at pp. -.
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Marcin Marcinko, Bartosz Rogala
separatist operations and during the escalation of conict enhanced mil-
itary aid for the self-declared republics providing them with weaponry,
tanks, armoured personnel carriers and other equipment. Asignicant
number of volunteers joining the separatist forces was blatantly recruited
in Russia. Another fact which must be strongly emphasized is the re
support provided in favour of separatists by long range artillery and tac-
tical missiles from Russian territory without crossing the state border.
Furthermore, as time passed, the stage that might be termed “limited
semi-covert guerrilla movement” smoothly developed into regular military
clashes between land force formations (equipped with artillery and armour)
one of which (the Russian side) claims toact for the benet and under the
label of the Luhansk and Donetsk republics, and the other side (Ukrainian)
attempts tokeep up legal appearances that it is not engaged in an armed
conict in defence of its own territory against the neighbouring state.
Under such circumstances, IHL (including the above-referred art. ) leaves,
however, no doubt: any hostilities between the armed forces of two or more
states constitute an international armed conict, even if one or both states
deny the existence of an armed conict. As Remy Jorritsma notices,
[w]hether aState […] wages inter-State conict by using its regular
forces or indirectly by using non-State actors as proxies toact on its
behalf, the legal result is the same. Any hostile action undertaken by
organized armed non-State groups [in Ukraine] is imputable toRussia
if and tothe extent that Russia exercises the required degree of op-
erational control.
In conclusion, both Ukraine and Russia should observe and adhere
toIHL principles and norms (included in customary law and in the relevant
 B. Balcerowicz, Konikty zbrojne: Ukraina, wojny talibów [Armed Conicts: Ukraine,
Taliban Wars], ‘Rocznik Strategiczny’ /, vol. , at p. , pp. -.
 M. Wrzosek, op.cit., at p. .
 A. Wilk, W. Konończuk, op.cit.
 L. Blank, e Continuing Importance of aLow reshold for LOAC Application in
International Armed Conict, .., http://justsecurity.org//guest-post-con
-
tinuing-importance-threshold-loac-application-international-ar med-conict/ (accessed:
..).
 R. Jorritsma, Ukraine Insta-Symposium: Certain (Para-)Military Activities in the
Crimea: Legal Consequences for the Application of International Humanitarian Law, http: //
opiniojuris.org////ukraine-insta-symposium-certain-para-military-activi-
ties-crimea-legal-consequences-application-international-humanitarian-law/ (accessed:
..).
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The Ukrainian Crisis: A Test for International Law?
treaties applicable tointernational armed conicts) once the warfare, both
in Crimea and eastern Ukraine, had begun.
As aside note, it is notable that none of the parties involved have
addressed the much disputed facts (such as various forms of Russian in-
volvement) by way applying tothe IHFFC toverify the claims of both
Ukraine and Russia. is is despite both of the countries accepting the
competences of the IHFFC. ere remains some doubt over the factual
background of the conict, which makes legal assessment less reliable.
5. Crimean Peninsula and eastern Ukraine – territories
under occupation?
Taking the above into account, one should consider the role of Russia
as an occupying power in Ukraine in light of international law. As aprelim-
inary statement one should recall the basic customary law rule regarding
occupation under international law according towhich sovereignty may
not be alienated through the use of force. is is conrmed in the Hague
Regulation on Laws and Customs of War on Land, annexed tothe Hague
Convention of , e.g. in Articles  and  and in the Fourth Geneva
Convention of , as well as in its  Protocol¹. e main purpose
of the law of occupation is toaddress humanitarian concerns and provide
governance rules, for the temporary period of occupation, whilst respect-
ing the rights of the ousted state. Subsequently, the occupying powers are
forbidden from not only annexing the occupied territory, but also from
changing its political structure².
Considering the legal aspects of what
may be deemed as amilitary occupation of Crimea and, toalesser extent,
of eastern parts of Ukraine, it should be also clearly stated that the rules
regarding the occupation apply regardless of the legality or illegality of the
 Compare: R. Heinsch, op. cit., at p. .
¹ See: Convention (IV) respecting the Laws and Customs of War on Land, e
Hague, ..,  Stat. , T.S. no , and its Annex: Regulations concerning the
Laws and Customs of War on Land,  Stat. ; Fourth Geneva Convention, op. cit.,
Protocol Additional tothe Geneva Conventions of  August , and relating tothe
Protection of Victims of International Armed Conicts (Protocol I, Geneva, ..,
 UNTS).
² D. Sheer, Beyond Occupation Law, ‘e American Journal of International Law’
, vol. , at p. , pp. -, p. .
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Marcin Marcinko, Bartosz Rogala
given military presence. at given the occupations resulting from both
the activities of NATO in Afghanistan, which are deemed tohave been
legal from the get-go in the light of international law, as well as from the
Operation Iraqi Freedom, which is at present viewed as illicit, need toad-
here tothe same rules³.
ere is adierence between occupatio pacica (non-hostile/consen-
sual occupation) and occupatio bellica (military seizure), the rst being
occupation of one country or part of it, perpetrated by another country,
which is not adirect consequence of an armed conict, e.g. the agreed
temporary occupation of apart of the Ruhr area after WWI and the second
one being aresult of hostilities, e.g. the occupation of Japan after WWII.
Despite the lack of any substantial military skirmishes during the seizure
of Crimea, the occupation of the peninsula should be considered tohave
constituted amilitary occupation, such as the occupation of Denmark
in , as there was no agreement between the Ukrainian and Russian
authorities on the seizure.
Putting the question of self-determination aside, the sheer presence
of Russian forces in Crimea before the annexation (which seems tobe at
least indirectly admitted by the Russian authorities), allowing Russia
togain factual military and administrative power over the area at hand
and the lack of consent of Ukraine’s authorities led toastate of military
occupation of the peninsula. Assuming the above reasoning is right, the
next step is togo tothe basic rule which forbids the annexation of the
territory at hand and the rule according towhich the legal status of the
occupied territory should be maintained. As aresult, under international
law, Crimea could be considered not tobe apart of the Russian Federation,
³ R. Kwiecień, Okupacja wojenna w świetle prawa międzynarodowego: natura,
skutki, nowe tendencje [Beligerent Occupation Under International Law: Legal Nature,
Consequences, New Tendencies], ‘Annales Universitatis Mariae Curie-Sklodowska ,
vol. , at p..
 RT, Putin acknowledges..., op. cit.
 Doradczy Komitet Prawny przy Ministrze Spraw Zagranicznych [Advisory Legal
Committee of the Minister of Foreign Aairs], Opinia Doradczego Komitetu Prawnego
przy Ministrze Spraw Zagranicznych RP wsprawie przyłączenia Półwyspu Krymskiego
do Federacji Rosyjskiej wświetle prawa międzynarodowego [Opinion of the Advisory
Legal Committee of the Minister of Foreign Aairs of the Polish Republic regarding the
annexation of the Crimean Peninsula tothe Russian Federation in light of international
law], http://www.msz.gov.pl/resource/f-a-a-cf-cabc:JCR
(accessed: ..).
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55
The Ukrainian Crisis: A Test for International Law?
but, legally speaking, an occupied territory, despite any assertions of le-
gitimacy of the annexation by the Russian speaking majority. Moreover,
after the annexation no doubt remains that Russia could be treated as an
occupying power in Crimea under international law.
One should consider the possibility of holding the occupying power
responsible under the rules of state responsibility, possibly through
the countermeasure specied in Article () of the Draft Articles on
Responsibility of States for Internationally Wrongful Acts, i.e. not recog-
nizing the new status quo. Moreover, taking into account the precedent
set in the Loizidoucase, one could argue the occupying party could be held
responsible for any human rights violations from the outset of the changes
in Crimea, even before the formal annexation, given the factual control
over the territory at hand. Otherwise we would be working in avacuum,
in which no entity or state could be held responsible.
e assessment of the issue of occupation seems tobe more compli-
cated in the case ofthe two republics in eastern Ukraine. e two people’s
republics which claim the eastern regions, according tosome reports, are
under indirect control or at least the inuence ofRussia. Given the uncer-
tain character and scope of control, one cannot precisely determine whether
the eastern regions are actually occupied, as understood byinternational
law. In away, the situation of the two republics is similar tothe position
of Nagorno-Karabakh, which even though is not recognized by Armenia,
seems tobeabeneciary of its support or, similarly, the legal standing of
Northern Cyprus, which enjoys the support of Turkey.
Coming back tothe important rule forbidding occupation leading
tosubstantial changes in the occupied territory, one should consider the
 See, e.g.: R. Heinsch, op. cit., at pp. -; S. R. Reeves, D. Wallace, op. cit.,
atpp. -.
 Draft Articles on Responsibility of States for Internationally Wrongful Acts,
Text adopted by the International Law Commission at its fty-third session, in ,
and submitted tothe General Assembly as apart of the Commission’s report covering
the work of that session, A//, http://legal.un.org/ilc/texts/instruments/english/
commentaries/__.pdf (accessed: ..).
 Doradczy Komitet Prawny przy Ministrze Spraw Zagranicznych, op.cit.
 Loizidou v Turkey,Application no. /, Judgment of .., ECHR
-VI, at para. . See also: A. Tancredi, e Russian annexation of the Crimea: questions
relating tothe use of force, ‘Questions of International Law’, .., http://www.qil-
qdi.org/the-russian-annexation-of-the-crimea-questions-relating-to-the-use-of-force/
(accessed: ..).
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Marcin Marcinko, Bartosz Rogala
cases of post-WWII Germany and Iraq. In both instances, the occupying
powers orchestrated very substantial (and much needed) changes in the
structure of the government and of the society, which were mostly sup-
ported by the international community. In the case of Iraq, there was avast
array of SC’s resolution specifying the character of the occupation and
providing at least partial legitimacy tothe changes. is shows even the
gist of the law of occupation is subject tochange when needed. However,
in the case of Crimea, there was no major international support for any
changes, in particular by the UN. In some cases however, strictly following
the law of occupation might not be benecial for the population, say in
acase similar toGermany after WWII (massive human rights violations,
adictatorial regime etc.), where adramatic change was more than needed.
On the other hand, however, should even the mandated intervening powers
be empowered toignore the basic rules of occupation law, if the proposed
changes are deemed tobe legitimate? International law, in fact, is largely
indierent toissues such as the democratic or non-democratic character
of agiven regime, giving nevertheless some consideration toissues such
as human rights violations.
6. What about the UN and the OSCE?
Going back tothe UN Charter, more specically its rst Article, one
can see one clear issue – the stated purpose of the UN is tomaintain peace
and security, however in away people’s rights toself-determination are
respected. In the present conict the UN did not, unfortunately, realize
its key goals (so far!).
At the outset of the discussed conict, in March  the Security
Council, during an urgent meeting held at the request of Ukraine¹, failed
toadopt aUS-sponsored resolution proposed by anumber of countries.
is resolution entailed the UN SC calling for apeaceful solution tothe
crisis and for Ukraine tocontinue torespect the rights of the minorities,
 D. Sheer, op. cit.
¹ Letter dated .. from the Permanent Representative of Ukraine tothe
United Nations addressed tothe President of the Security Council, UN S//,
available from http://www.un.org/en/ga/search/view_doc.asp?symbol=S//.
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The Ukrainian Crisis: A Test for International Law?
but also proclaimed the then-upcoming referendum tobe illegal². e
said resolution failed, because of aveto of one of the permanent members
of the SC – i.e. Russia³. Of course, the UN was, and still is, active on var-
ious other fronts of the conict, in particular the humanitarian aspects
of it. e fact of the matter still remains – the UN SC was unable toadopt
asubstantial resolution pertaining toUkraine for along period of time
(with the exception of the tragic downing of aMalaysian civil airplane –
however, note the other proposed resolution on establishing an interna-
tional tribunal having the aim of prosecuting those responsible for the
downing was vetoed) and consequently, take more signicant action.
Only in February  the UN SC adopted another resolution – this time
pertaining toMinsk II. However, the said resolution merely rearmed
the already agreed measure.
e above shows, the oldest (and of course valid) accusation in the
book against the UN, i.e. the voting system and the veto rules. e UN
SC’s veto rules block taking substantial actions in case the interests of one
of the permanent members are threatened. e way the UN SC operated
during the discussed conict shows the SC is not able toaddress key secu-
rity concerns. It is notable that the UN’s GA, which is not constrained by
the UN SC’s blocking rules, has called torespect the territorial integrity
² United Nations Security Council d raft resolution vetoed by the Russian Federation,
SC Report S// (..), https://documents-dds-ny.un.org/doc/UNDOC/GEN/
N///PDF/N.pdf?OpenElement (accessed: ..).
³ United Nations – Meetings coverage and press releases, Security Council fails
toadopt text urging member states not torecognize planned  March Referendum
in Ukraine’s Crimea Region, SC/, .., http://www.un.org/press/en//
sc.doc.htm (accessed: ..).
 United Nations Security Council Resolution SC Res  () (..), avail-
able from https://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/().
See also: United Nations Security Council draft resolution, toestablish atribunal for
prosecution of those responsible for the downing of ight MH, S// (..),
available f rom https://documents-dds-ny.un.org/doc/UNDOC/GEN/N///PDF/
N.pdf?OpenElement.
 Package of Measures for the Implementation of the Minsk Agreements agreed
by the Trilateral Contact Group at the Summit in Minsk on .., ‘United
NationsPeacemaker’,http://peacemaker.un.org/ukraine-minsk-implementation
(accessed: ..).
 United Nations Security Council resolution, UN SC Res.  (), (..),
available from htt p://www.un.org /en/ga/search/view_doc.asp?symbol=S/RES/%
().
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Marcin Marcinko, Bartosz Rogala
of Ukraine. It should be noted that events underlying (such as civil up-
heaval, security threats etc.) the Libyan, Iraqi and Kosovo operations were
deeply embedded in the UN system, whereas there were no such eorts
on the part of Russia pertaining tothe east ofUkraine and Crimea. On
the other hand, there have been some valid accusations ofoverstepping
the lines drawn by the UN SC in these three cases, particularly pertaining
toLibya and Kosovo. Operation “Iraqi Freedom”, regardless of the varying
assessment of its legitimacy, seems tohave occurred in aclear breach of
international law.
As regards the OSCE, it is also engaged in trying tobring about an
end tothe present conict. It has established aspecial monitoring mission
in Ukraine, whose general aim is toreduce tensions, foster peace, stability
and security, monitor and support the implementation of OSCE principles
and commitments.
It is notable that according tothe wording of the decision establish-
ing the mission, even though OSCE deployed observers toUkraine, mon-
itors were initially positioned in Kherson, Odessa, Lviv, Ivano-Frankivsk,
Kharkiv, Donetsk, Dnepropetrovsk, Chernivtsi, Luhansk – thus leav-
ing Crimea outside monitoring activities. e respective governments
(Ukraine, Canada, US, Russia) were however careful enough toassert
their positions on the status of Crimea in the interpretative statements
attached tothe said decision. e mission’s particularly important task
is fact-nding – tofacilitate international dialogue on the matter – which
is particularly signicant for the realization of the obligations under the
Minsk agreements¹. e mandate of the said mission has been extended
several times now². Furthermore, the OSCE has contributed signicantly
 United Nation General Assembly’s resolution, on the territorial integrity of
Ukraine, Res / (), ... available from https://www.un.org/en/ga/search/
view_doc.asp?symbol=A/RES//.
 Decision no , Deployment of an OSCE special monitoring mission toUkraine,
PC.DEC/, .., PC Journal no , Agenda item , http://www.osce.org/
pc/?download=true (accessed: ..).
 Decision no , above, paras  and .
 Ibid. See attachments -.
¹ OSCEAnnualReport,Special Monitoring Mission toUkraine, at p. ,http://
www.osce.org/annual-report/?download=true (accessed: ..).
² Decisionno,ExtensionofthemandateoftheOSCE Special Monitoring
missiontoUkraine, PC.DEC/, .., PC Journal no , Agendaitem,http://
www.osce.org/pc/?download=true,(accessed: ..).
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The Ukrainian Crisis: A Test for International Law?
tothe conclusion of the two Minsk agreements as it facilities contacts
between the parties involved in one or another scope in the conict and
works on the implementation of the agreed solutions³.
7. Minsk agreements – afailure of diplomatic solution?
After several months of armed conict in eastern Ukraine, it seems
that apolitical, rather than amilitary solution seems tobe the only way
toachieve peace. Indeed, the rst ceasere agreements were signed after
.., when insurgents – allegedly supported by Russian troops and
heavy armour – opened anew front on the southeast portion of the bor-
der and pushed back Ukrainian forces from Donetsk. us, the Russian
government demonstrated that Ukraine could not resolve the conict in
its favour by purely military means. For its part, Moscow decided toagree
toatruce as it had the tactical initiative and the military advantage.
e diplomatic process was launched in September  in Minsk,
and was intended toregulate the conict within the so-called Trilateral
Contact Group: Ukraine, Russia, and the OSCE, negotiating together with
representatives of the separatists. On  and  September, the Group and
separatists signed aprotocol and amemorandum, respectively. ese
³ See for instance: OSCE, Press Statement by the Trilateral Contact Group, Minsk,
.., http://www.osce.org/home/ (accessed: ..).
 A. E. Kramer, M. R. Gordon, Ukraine Reports Russian Invasion on aNew Front, ‘New
York Times’, .., http://www.nytimes.com//// world/europe/ukraine-
russia-novoazovsk-crimea.html?_r=# (accessed: ..).
 M. Menkiszak, W. Konończuk, Russia sabotages the Minsk agreement on the Donbas,
‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/
russia-sabotages-minsk-agreement-donbas (accessed: ..).
 Aceasere agreement was signed after extensive talks under the auspices of the
OSCE.
 See: T. Iwański, Still together, but apart? Kyiv’s policy towards the Donbas, ‘OSW
Commentary’ , no , at p. .
 Protocol on the results of consultations of the Trilateral Contact Group, Minsk,
.., English version available at: htt p://mfa.gov.ua/en/news-feeds/foreign-oces-
news/-protocolon-the-results-of-consultations-of-the-trilateral-contact-group-
minsk- (accessed: ..); Memorandum outlining the parameters for the
implementation of commitments of the Minsk Protocol of .., Minsk, ..,
English version available at: https://slavyangrad.org////minsk-memoran-
dum-sept--/ (accessed: ..).
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Marcin Marcinko, Bartosz Rogala
documents provided for, among others, the introduction of aceasere;
monitoring and verifying by the OSCE of the regime’s non-use of weapons;
the release of both sides’ unlawfully detained persons and hostages; the
withdrawal of armed separatist troops, mercenaries and military equipment
from the territory of Ukraine; permanent monitoring on the Ukrainian-
Russian state border and verication by the OSCE; the establishment of
a-kilometre buer zone toseparate the warring parties. e documents
also included provisions for enacting the Law on the Special Status of the
Donetsk and the Luhansk regions and organizing early local elections on
the separatist-controlled territories in December , in accordance with
Ukrainian domestic law.
Generally speaking, the ceasere led tothe separatists (supported by
Russian military units) suspending their oensive, and genuinely decreased
intensity of military operations. However, the ceasere was immediately
ignored as the separatists refused todisarm or abandon disputed areas
tothe Ukrainian government. As regards OSCE tasks, it has been unable
tocheck the many convoys of Russian trucks that have entered rebel-held
areas of eastern Ukraine¹. Furthermore, the Minsk agreements failed
tohave any political eects, and attempts at regulating the political situ-
ation were additionally complicated by the illegal “elections” of the leaders
of the two separatist regions (Donetsk and Luhansk) on  November².
It should be also noted that on its side, and despite its ocial rhetoric,
Moscow was not interested in fully implementing the provisions of the
Minsk Protocol, including the withdrawal of heavy weapons by the sepa-
ratists, and creating abuer zone on both sides of the Ukrainian-Russian
 See: R. Sadowski, A. Wierzbowska-Miazga, e ceasere in eastern Ukraine, ‘OSW
Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/cease-
re-eastern-ukraine (accessed: ..). See also: BBC News, Ukraine and Pro-Russia
Rebels Sign Ceasere Deal, .., http://www.bbc.com/news/world-europe-
(accessed: ..).
 V. Verbyany, I. Arkhipov, Ukraine Truce Wobbles as Poroshenko Visits Frontline City,
‘Bloomberg’, .., http://www.bloomberg.com/news/articles/--/ukraine-
sees-cease-re-holding-as-russian-troops-poised (accessed: ..).
¹ BBC News, Ukraine Ceasere: e 12-Point Plan, .., http://www.bbc.com/
news/world-europe- (accessed: ..).
² T. Iwański, op. cit., at p. . See also: T. A. Olszański, Illegal elections in Donbas,
‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/
illegal-elections-donbas (accessed: ..). Russia appeared toback the elections,
saying it respected “the will of the people of the south-east” (BBC News, Ukraine…,
above).
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61
The Ukrainian Crisis: A Test for International Law?
border and arranging international monitoring for it³. In brief – the Minsk
ceasere did not meet Kremlin’s expectations.
Fortunately, there are some positive outcomes of the implementation
of the Minsk Protocol: hundreds of prisoners have been exchanged by
both sides, which was probably the most tangible positive result tohave
stemmed from the ceasere. Concerning humanitarian aid, Ukraine has
been sending aid tothe parts of the east that it controls, and Russian aid
convoys in the winter helped toease the humanitarian crisis in Luhansk
and other rebel-held areas.
Nevertheless, at the beginning of January , the separatist forces
began anew oensive on Ukrainian-controlled areas, resulting in the com-
plete collapse of the ceasere and areturn toopen hostilities (including
the battle for Donetsk airport). e upsurge in activity by the separatist
troops (under Russian command) took place after it became clear that the
peace negotiations scheduled for .. in Astana in the framework of
the so-called “Normandy format” (the leaders of Ukraine, Russia, Germany
and France) would not happen. e situation prompted Ukrainian Prime
Minister Arseniy Yatsenyuk toannounce a“state of emergency” in the
Donetsk and Luhansk oblasts. However, on .., after aweek of very
³ W. Konończuk, A. Wilk, Escalation of clashes in the Donbas, ‘OSW Analyses’,
.., http://www.osw.waw.pl/en/publik acje/ana lyses/--/escalation-clash-
es-donbas (accessed: ..).
 See: M. Menkiszak, W. Konończuk, op. cit. (“Moscow demanded ade factorecog-
nition of the separatists’ new territorial gains, aunilateral ceasere and the withdrawa l
of heavy military equipment by the Ukrainian side, as well as ahigh degree of autonomy
for the separatist Donbas within aframework of constitutional regulations that would
ensure Russia’s inuence on the policy of Ukraine (this included granting Ukrainian
regions the r ight topursue independent foreign economic policies, and toblock the Kyiv
government’s decisions on foreign and security policy)”). Compare: T. Iwański, op. cit.,
at p. .
 BBC News, Ukraine…, above.
 W. Konończuk, A. Wilk, op. cit.
 See: OSCE Chair person-in-Oce g ives full backing toMinsk package, OSCE Press
release, .., http://www.osce.org/cio/ (accessed: ..). In fact, two
documents were adopted: aset of actions concerning the implementation of the Minsk
agreements (signed by members of the Trilateral Contact Group) and aDeclaration on
action toimplement the Minsk agreement, adopted by the leaders of Germany, France,
Ukraine and Russia, emphasising their support for atruce based on the sovereignty
and territorial integrity of Ukraine (S. Kardaś, W. Konończuk, Minsk 2 – afragile truce,
‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/
minsk--a-fragile-truce (accessed: ..)).
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62
Marcin Marcinko, Bartosz Rogala
intense negotiations (overseen by the OSCE), the Presidents of Ukraine,
Russia and France and the Chancellor of Germany signed adocument, with
aview toresolve the armed conict in the east of Ukraine.
is new package of peace-making measures, called Minsk II,
was intended torevive the Minsk Protocol of ... Indeed, the set
of actions of Minsk II covered similar issues tothe Minsk Protocol, but
its provisions were more specic. It included, among others: aceasere
monitored by the OSCE; withdrawal of heavy military equipment and all
illegal military formations, militants and mercenaries from Ukrainian
territory (under OSCE supervision); unconditional release of all hostages
and illegally held persons; restoring full control over the state border by
Ukrainian government in the whole conict zone; constant monitoring of
the Russian-Ukrainian border by the OSCE, along with setting up asecu-
rity zone in the frontier regions of Russia and Ukraine. Moreover, Minsk
II obliged Ukraine tocarry out political changes – the adoption of anew
constitution, based on decentralization and including the special status of
the Donetsk and Luhansk oblasts, with some autonomous, although quite
unclear, rights: the right tolinguistic self-determination, the right tocreate
their own police units, and the right toestablish cross-border cooperation
with regions of the Russian Federation. It should be highlighted that on
.. the UN Security Council (unanimously) adopted aresolution
 ()¹, supporting the Minsk II agreement and annexed it tothe
text of the resolution. e Council called on “all parties tofully implement
 Package of Measures for the Implementation of the Minsk Agreements, Minsk,
.., http://www.osce.org/cio/ (accessed: ..). English translation
available at: http://www.ft.com/cms/s//bfe-ba-e-b-feabde.ht-
ml#axzzAyHnIHy (accessed: ..).
 See: OSCE Chairperson-in- Oce gives full backing toMinsk package, OSCE Press
release, .., http://www.osce.org/cio/ (accessed: ..). In fact, two
documents were adopted: aset of actions concerning the implementation of the Minsk
agreements (signed by members of the Trilateral Contact Group) and aDeclaration on
action toimplement the Minsk agreement, adopted by the leaders of Germany, France,
Ukraine and Russia, emphasising their support for atruce based on the sovereignty
and territorial integrity of Ukraine (S. Kardaś, W. Konończuk, Minsk 2 – afragile truce,
‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/
minsk--a-fragile-truce (accessed: ..)).
 Ibid.
¹ United Nations Security Council resolution, UN SC Res.  (), ..,
available from htt p://www.un.org /en/ga/search/view_doc.asp?symbol=S/RES/%
().
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63
The Ukrainian Crisis: A Test for International Law?
the ‘Package of measures’, including acomprehensive ceasere”. Although
the resolution was not adopted under Chapter VII of the UN Charter (so,
legally, it is non-binding), participants of the UN SC meeting agreed that
“non-compliance with the [Minsk] agreements had ruined the prospect for
peace” and the resolution should be implemented fully and appropriately².
However, the facts tell arather dierent story. Ukraine sees MinskII
as conrmation of the provisions of  Minsk agreements and tries
toavoid the introduction of federalization and broad autonomy for the
Donbass, whereas for Russia the most important part of Minsk II is Kyiv’s
commitment toundertake constitutional reform, in accordance with the
demands of the separatists in the Donbass. Additionally, neither of the
parties tothe conict considers the ceasere as permanent, and each is
blaming the other for its violation³. Ukrainian ocials argue that the
separatists and Russians have failed towithdraw foreign forces and mil-
itary equipment from Ukraine, grant access tothe OSCE tothe Donbass,
release all illegally-detained persons and restore Ukrainian control over
the border. e separatists claim that Ukrainian government has not yet
granted amnesty and has not enacted constitutional reforms toprovide for
decentralization, they also stated that they would not accept arestoration
of Ukrainian sovereignty, which is the ultimate objective of Minsk II.
Tosum up, it seems that Minsk II turned out tobe only partially
eective, which means another solution is needed or, alternatively, stricter
enforcement measures need tobe introduced. In particular, there are con-
tinued (but limited) military clashes (the full ceasere never took place),
heavy weaponry have not been removed completely, the OSCE Special
Monitoring Mission’s mandate has not been and cannot be fully eectively
² See: Unanimously Adopting Resolution  (), Security Council Calls on
Parties toImplement Accords Aimed at Peaceful Settlement in Eastern Ukraine, UN SC
th Meeting, SC /, .., http://www.un.org/press/en//sc.doc.
htm (accessed: ..).
³ W. Rodkiewicz, R. Sadowski, A. Wilk, “Hybrid” truce in the Donbas, ‘OSW
Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/hy-
brid-truce-donbas (accessed: ..).
 S. Pifer, Letting go, but not giving up: Implementation of Minsk II, February ,
http://www.brookings.edu/research/articles///eu-us-minsk-ii-provisions-pifer
(accessed: ..).
 As R. Heinsch rightly noticed, “the ghting has continued (…) at alevel of inten-
sity that falls within the denition of protracted armed violence” (R. Heinsch, op. cit.,
at p.).
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64
Marcin Marcinko, Bartosz Rogala
exercised (because parties tothe conict have hampered OSCE represen-
tative inspections, preventing them from entering particularly sensitive
areas under various pretences), the decentralization reforms in Ukraine
have not been completed and Kyiv has not regained control over its bor-
ders. At the same time, the escalation of hostilities is unlikely, but this
danger still cannot be completely dismissed (taking into account the low
prospect for any new diplomatic initiatives) – at present, however, we are
dealing with aso-called frozen or semi-frozen conict, with no clear end
on the horizon.
8. Repercussions for international law
e general aims of modern international law are specied concisely
in the preamble of the Charter of the United Nations, “toestablish con-
ditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained”. It
is dierent from domestic law in many fundamental respects, i.e. the law
seen by most as aformat or paradigm of how alegal system should work.
e crucial characteristics of international law is that it does not have
acentral legislator, there is also alimited global authority as well as limited
enforcement possibilities. Moreover, toadd another “special” feature – the
main actors of international law are states, which are sovereign. As aresult,
more powerful states are able toinuence the content ofinternational law
and its reality.
Given the above features, there is asurprising level of compliance
with the discussed legal order. ere is avast array of international law
treaties which help the world function, pertaining toareas as varied as
humanitarian law, human rights, aviation, sports, peace and conict termi-
nation,intellectual property and many others. Furthermore, over history,
 A. Wilk, T. A. Olszański, W. Górecki, e Minsk ag reement: one year of shadow boxing,
‘OSW Analyses’, .., http://www.osw.waw.pl/en/publikacje/analyses/--/
minsk-agreement-one-year-shadow-boxing (accessed: ..).
 Ibid.
 UN Charter, Preamble.
 See: J. Goldsmith, D. Levinson, Law for states: international law, constitutional
law, public law, ‘Harvard Law Review’ , vol. , no , at p. , pp. -, ,
-.
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65
The Ukrainian Crisis: A Test for International Law?
anumber of permanent and temporary tribunals have brought afurther
degree ofcompliance with international law, the ICJ, being the chief ex-
ample. IGOs play asimilar, mostly positive role.
However, in the context of the present article, one may even question
the validity ofinternational law. Does this system work only in peaceful cir-
cumstances and can it be easily disregarded in times of conict, especially
in the current multipolar world, as some claim? Has aperiod of aunilateral
US policy led tothe diminished role of international law? Perhaps events
such as the NATO intervention in Kosovo and its recognition as an inde-
pendent state later on or the de facto unilateral American intervention in
Iraq has led other countries, wielding substantial power, to“think” they
are empowered toperform some acts they see as “legitimate”, but not
necessary legal? However, accepting the notion that “all options are on
the table” for the powerful is ade facto abandonment of international law
and leaving it all topure geopolitics, which, in the authors’ opinion, would
lead only tochaos.
ere is aneed for adiscussion regarding the shape of international
law, eectiveness being the chief concern. e world is too complex for
auniform set of rules. ere is also aneed totake into account the actual
power play in the world, as international law does not exist inavacuum.
is goes tothe inherent characteristic of international law, namely, the
lack of aglobal police/enforcement service and the already mentioned fact
that the one institution capable of asomewhat similar function (i.e. the
UN SC) can be easily blocked. However, one should not forget, even though
the UN SC failed toreact directly, the US, the EU, and other countries and
organizations have imposed sanctions¹. By way of an indirect eective
cooperation, these sanctions led toasubstantial economic eect, thus, very
likely, achieving its goal of acting as adeterrent, at least tosome degree.
However, it is also notable that the Russian government issued counter-
sanctions, aimed at the aforementioned states and political blocks, which
raise the issue of sanctions being adouble-edged sword. Nevertheless,
international law should not be reduced tooccasional issuing of sanctions
as away toforce compliance. e preferred usage of this legal system’s
¹ US Department of State, Diplomacy in Action, U kraine and Russian sanction s, ht tp ://
www.state.gov/e/eb/tfs/spi/ukrainerussia/ (accessed: ..); see also: European
Union Newsroom, EU sanctions against Russia over Ukraine crisis, http://europa.eu/news-
room/highlights/special-coverage/eu_sanctions/index_en.htm (accessed: ..)
PRIEL_2016-1.indd 65 05.06.2017 12:52:09

66
Marcin Marcinko, Bartosz Rogala
mechanisms is toresolve disputes peacefully and ensure compliance in
this way.
e age-old accusation against international law is its particular
character and lack of -percentage compliance. However, does any legal
system have aperfect compliance rate? It is denitely not the case with
criminal law or even corporate tax law (e.g. big TNC’s using legal mech-
anisms in order tominimize their eective tax burden). It seems in the
world of domestic law, the biggest players nd ways tocircumvent rules
deemed by tobe unfavourable, whilst however, trying toat least achieve
an appearance of conformity of law¹¹.
One cannot eectively argue with the fact that international law was
and sometimes is ignored by the major powers. e great powers always nd
ways tonavigate through the sometimes muddy waters of international
law in order tosecure their interests. One particular example of that isthe
veto mechanism of the UN’s Security Council, making any action against
its permanent members impossible or at least very dicult. However,
there is an indirect eect of international law in this respect: regardless
of the legitimacy of the accusations against Russia in the conict at hand,
the Russian authorities came up with asubstantial line ofdefence of their
supposed activities on Ukrainian soil. Moreover, asingle violation or even
several violations do not mean the entire international legal system is
ignored¹².
It can be said the classical rules of international law have been wa-
tered down in the recent two decades, by the very critics of Russia, in par-
ticular the US and NATO, i.e. by the Iraq intervention lacking the consent
of the UNSC. Seeing the problematic legality of such interventions, the
world powers try toshift the discussion tothe issue of legitimacy, rather
than legality¹³.
¹¹ P. Spiro, Ukraine, International Law, and the Perfect Compliance Fallacy, ‘Opinio
Iuris’, http://opiniojuris.org////ukraine-international-law-perfect-compli-
ance-fallacy/ (accessed: ..). See also: E. Posner, Russia’s military intervention in
Ukraine: internat ional law implications, http://ericposner.com/russias-militar y-interven-
tion-in-ukraine-international-law-implications/ (accessed: ..).
¹² Ibid.
¹³ J. Goldsmith, e Precedential Value of the Kosovo Non-Precedent Precedent for
Crimea, .., ‘Law Fare: Hard National Security Choices’, http://www.lawfareblog.
com///the-precedential-value-of-the-kosovo-non-precedent-precedent-for-
crimea/ (accessed: ..).
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67
The Ukrainian Crisis: A Test for International Law?
With all that being said – international law should not be abandoned,
especially now, in aworld which is increasingly interconnected. It contains
multiple instruments which might and should be used toend the present
conict in Ukraine as quickly as possible, in order tosave lives and pro-
vide acompressive solution for Ukraine, securing the long-term peace.
International law was developed as asystem ofrules, the aim of which
is toorganize the international community. Although from the get-go,
it was lacking acentral law-giver or enforcement measures, typical for
inter-state law, it had other instruments and measures – this specically
pertains, inter alia, tothe role of IGO’s as facilitators of peace negotiations
and peace builders as well as humanitarian law, which mitigates the vio-
lence in armed conicts.
9. Conclusion
One of the key aims of all legal systems, toensure “survival of the
ttest”, is not the governing rule, especially in aworld of weapons ofmass
destruction. Accepting pure geopolitics, so-called legitimacy, not legality,
will lead tothe demise of international law, which would be horric for
the international community. Force as apolicy measure must only be exer-
cised on the basis of SC’s authorization, in the event that all peaceful ways
ofsettlement have been exhausted. In short, there is no valid alternative
tothe rule oflaw and no country can exist in isolation.
ere are other lessons tobe learned from the current conict in
Ukraine. Firstly, international law can be uncertain at times. It seems, how-
ever, that it is an inherent characteristic. Secondly, adisregard for interna-
tional law, justied by the “special” character of the given situation, has led
tothe deterioration of the discussed legal order. Furthermore, so-called proxy
wars contribute tothe said deterioration, given the problematic accountabil-
ity they cause, and give the appearance of compliance. What is more, the
deciencies in the UN system need tobe nally addressed in away which
will enhance compliance and conclusively set the conditions forahuman-
itarian intervention. Last but not least, the present considerations should
not necessarily lead tolowering expectations for the ecacy ofinternational
law. Even though total compliance is not be excepted, aviolation of the
said legal order does not make it invalid as awhole. Tolessen the degree of
violations, the participants of the international law process should not base
their actions on “murky waters” type of arguments, possibly favouring their
allies or interests, but rather focus on applying uniform rules universally.
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