The War of the Two States: Analysing the legal implications of the Ukrainian and Russian Conflict.

By Harine Raaj ( The article was originally published on "The Law Codex")

Introduction

Tensions continue to rise between the forces of Russia and Ukraine ever since Russia had invaded Ukraine in the early hours of 24th February 2022. With machine guns breaking fire and soldiers patrolling the cold, snow covered front line keeping a watchful one for any hidden enemy combatants, Captain Denis Branitskii, a company commander with the Ukrainian military’s 25th Airborne Brigade describes the explosions as “This happens every night”.[1] As a result, geopolitical tensions continue to rise in both countries who are now in the brink of starting the new World War Three. This article will focus on the ongoing conflict between Ukraine and Russia, thus, discussing and analysing the humanitarian and legal implications.

Background

Ukraine’s war with Russia initiated in early 2014. It had three fronts: 1. Crimea, 2. Donbas and 3. The Black Sea.[2]Russia’s invasion of Ukraine and the build-up to the crisis was not a remarkable moment. Prior to the invasion, Ukraine’s socioeconomic situations were dire and was placed in the last quartile of countries with Drug abuse, HIV infection rates and alcoholism.[3] Additionally, the state, the public and private sectors themselves had immensely struggled for the control over infrastructure, territory, the people and various other resources. Following its move on Crimea, the second front of the Russian invasion was Donbas. In 2014, Russia had prompted a Pro-Russian separatist war within the eastern regions of Luhansk and Donetsk. This had led to the death of over 13,200 people and the displacement of more than 1.5 million.[4] Now machine guns and air strikes continues to rage the country as the battle for Kiev is underway. While Ukraine was once a member of the Soviet Republic during the Cold war, it is now stuck in the middle between Russia and the West.

Diplomatic Strategy

Following the growing aggression of the Russian army, the Ukrainian Security Council and National Defence had created a strategy to combat the situation. The primary aim of this strategy was to focus on the Russian occupation of Crimea and to deescalate the ongoing tensions. Furthermore, over the last few months, many western states have been involved in a serious phase of diplomacy to overcome bloodshed. The member states of the European Union, the US and its NATO allies have all attempted to converse with Russia, with the hope of a peaceful de-escalation of the military forces on its borders. Warnings of potential economic sanctions have also been issued to Russia if it decides to invade Ukraine.[5]

International law and Human Rights

UN Charter

Since March 2014, various international human rights organisations, such as the United Nations General Assembly and the Human Rights Council, have acknowledged the human rights desecrations that had occurred in Crimea. These include, enforced disappearances arbitrary detention, political persecution and torture.[6] By Article 2 (s)4 of the Charter of the United Nations, it can be argued that Russia’s act infringes the principle of states’ prohibition of the use of force and territorial integrity.[7] Thereby, this classes the ongoing conflict as a “hybrid war” as both military and non-military methods are utilised thus further violating the “DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS”.

Helsinki Conference

Both Russia and Ukraine are bound to the “Final Act of the Conference on Security and Cooperation in Europe” otherwise known as the Helsinki Final Act.[8] The act which was founded in 1975 makes it obligatory for its signatories to “refrain from any form of armed intervention or threat of such intervention against another participating State”.[9] The CSCE later became the Organization for Security and Cooperation in Europe (OSCE) which is now the world’s greatest security medium. Whilst having respect for border rights, this act binds the two countries to respect the human rights values including the support of minority rights, equal rights and sovereignty under international law.

Implications and Legal Proceedings through the Court

From 2016, Ukraine had filled various complaints against Russia’s aggression through tribunals and courts. On 14 January 2021, The Grand Chamber of the European Court of Human Rights (ECHR), in Strasbourg, had adjudicated its “admissibility decision” in the claim brought by Ukraine against Russia. This was based on the methodical human rights violations allegedly committed by Russia in Crimea.[10] Additionally, Ukraine had also filled complaints against Russia with the International Tribunal for the Law of the Sea (ITLOS) focusing on the Kerch Strait Incident which occurred on 25th May 2019. Here three navy vessels including its servicemen were detained by the Russian military and were ordered to be released. Recently, Ukraine had filed a complaint against the Russian Federation at the International Criminal Court. The current allegations include violations of human rights, war crimes and the genocide of the Ukrainian people. The courts are yet to hear from the Russian delegation and therefore, the outcome is yet to be determined.

It is fair to state that Russia’s behaviour in instigating a war with Ukraine is unlikely to change from the ongoing court proceedings. In response to the Ukrainian Invasion, Russia believes that the international courts and tribunals lack’s the relevant jurisdiction and competence to consider the issue of the ongoing war. Whilst the conflict seems to be further escalating than ever before, sanctions have been implemented against Russia. These include, freezing the Nord Stream 2 gas pipelines, taxing Russian import goods, boycotting Russian athletes and sanctioning high profile Russian individuals who have close links to the Kremlin.

Conclusion

The raging war in the Ukraine does not only have legal implications but also humanitarian ones. Ever since the start of the war, over 4 million people from the Ukraine have left their homes and became refugees.[11]This had included 3,455 civilian casualties within the country as of this day.[12] Homes, hospitals, shopping complex and various other infrastructures have been destroyed by constant shelling. Whilst there have been attempts in peace talks regarding a ceasefire between the Russian and Ukrainian delegations, there has not been a successful outcome. What the people of Ukraine hope for is a new found that is yet to be established.

[1] Michael Schwirtz, ‘On Ukrainian Front, Grinding War and Weary Anticipation of Invasion’ The New York Times (6 December 2021) <https://www.nytimes.com/2021/12/06/world/europe/ukraine-russia-war-front.html> accessed 10 December 2021. [2] Jakob Hedenskog and Petra Jud, ‘Lawfare: Ukraine´s War against Russia on the Legal Front’ 2. [3] KV Korostelina, Constructing the Narratives of Identity and Power: Self-Imagination in a Young Ukrainian Nation (Lexington Books 2014). [4] Hedenskog and Jud (n 2). [5] ‘Russia-Ukraine: Diplomacy Is the Best Hope for Heading Off a Deeper Crisis’ (Crisis Group, 2 February 2022) <https://www.crisisgroup.org/europe-central-asia/eastern-europe/ukraine/russia-ukraine-diplomacy-best-hope-heading-deeper-crisis> accessed 19 February 2022. [6] Hedenskog and Jud (n 2). [7] Article 2 (s)4 UNGA ‘Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States’ UN GAOR 25th Session Supp No 18 UN Doc A/8018 (1970) [8] Helsinki Final Act 1975 <https://www.osce.org/helsinki-final-act> accessed 19 February 2022. [9] ibid. [10] Hedenskog and Jud (n 2). [11] ‘Situation Ukraine Refugee Situation’ <https://data2.unhcr.org/en/situations/ukraine> accessed 7 April 2022. [12] ‘Ukraine: Civilian Casualty Update 3 April 2022’ (OHCHR) <https://www.ohchr.org/en/news/2022/04/ukraine-civilian-casualty-update-3-april-2022> accessed 7 April 2022.