Ukraine Insta-Symposium: Certain (Para-)Military Activities in the Crimea: Legal Consequences for the Application of International Humanitarian Law

[Remy Jorritsma (LL.M.) is a lecturer and teacher at the Department of International and European Law of Maastricht University.]

This contribution intends to demonstrate that Ukraine and Russia are involved in an international armed conflict, triggering the application of International Humanitarian Law (IHL). In particular, this post explores two relevant issues: the question of valid consent, and the legal qualification of the recent military hostilities.

In the Security Council meeting of 1 March 2014 the representative of Russia asserted that

[the Prime Minister of Crimea] went to the President of Russia with a request for assistance to restore peace in Crimea [which] appeal was also supported by Mr. Yanukovych, whose removal from office, we believe, was illegal.

Possibly such consent did not bring about an international armed conflict. Indeed, an international armed conflict (incl. occupation) does not exist when a host State allows another State to carry out armed activities on, or exercise control over, the territory of the host State (cf. SC. Resolution 1546(2004)).

However, the view that a semi-autonomous province and/or deposed Head of State can validly invite foreign troops against the express wishes of the central government makes no sense in light of the well-established principle of non-intervention. By virtue of their office the incumbent Head of Government/State and Foreign Minister are responsible in matters of a State’s foreign relations (Arrest Warrant, ICJ Reports 2005, §53). Neither the local government of the Crimea nor former president Yanukovych should be regarded as competent to issue valid consent to the presence of foreign armed forces, unless the central government of Ukraine agrees to this.

Given the present state of Ukraine, this outcome is not affected by the alleged unconstitutional nature of the ousting of former president Yanukovych. In the Tinoco case (1923) Costa Rica advanced the argument that the Tinoco government had not been a de facto government because of its unconstitutional origin. Sole arbitrator Taft rejected this, noting (at p. 381) that

[it would be a contradiction in terms] to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new [de facto] government.

Yanukovych’ claim to the presidency of Ukraine should be given little legal credit. His claim is opposed by an effective central authority that, by discharging regular administrative functions and controlling the governmental apparatus, including police and armed forces, is widely recognized as de facto government. In such a case, sparse non-recognition based on the alleged unconstitutional nature of the new government does not outweigh wide recognition based on effective control. Any presence of and action by foreign troops beyond the limits of consent given by the Ukrainian government in the past (eg in form of the Black Sea SOFA) must be regarded as hostile and possibly triggers the application of IHL.

According to common Article 2 of the Geneva Conventions of 1949 the application of International Humanitarian Law is applicable in three situations which amount to international armed conflicts:

(1) formally declared war;

(2) partial or total occupation, even without armed resistance; and

(3) any other (read: de facto) armed conflict.

President Putin asserted the right to invade Ukraine and even received parliamentary approval to use military force. Of course, such rhetoric is not, contrary to certain assertions by Kiev, tantamount to an explicit and formal declaration of war on Ukraine.

Instead, as from the beginning of March, IHL has become applicable as a combined result of the occupation of the Crimea and accompanying factual hostilities. Although it cannot be said with absolute certainty, it is reported that the so-called ‘local self-defence forces’ are in reality Russian armed forces who have removed their insignia,  in which case their actions are by default attributed to Russia. In addition, Russia may even bear responsibility for acts committed by organized armed groups that lack a formal relation with Russia. The Appeals Chamber of the ICTY held that, in order to attribute acts of paramilitary groups to a State it has to be shown that the State exercises overall control over the course of their operations (see Prosecutor v. Tadić, Judgment, 15 July 1999, §131). Whether a State resorts to occupation or wages inter-State conflict 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 the Crimea is imputable to Russia if and to the extent that Russia exercises the required degree of operational control.

A situation of occupation as described in Article 42 of the Hague Regulations of 1907 exists when there is a hostile substitution of territorial power and authority; it is irrelevant ‘whether or not [the occupying power] had established a structured military administration’ (Armed Activities in the Congo, ICJ Reports 2005, §173). Through its military manoeuvres and presence Russia qualifies as occupying power: it has been able to establish territorial control and is demonstrably able to exercise its authority in the Crimea without the consent of the central government of Ukraine.

In addition, now that the first (warning) shots on the Crimea have been fired, I would submit that IHL applies as a result of the existence of a de facto state of armed conflict between Ukraine and Russia. The Commentaries to common Article 2 suggest that, regardless of the number of victims or the intensity of hostilities, an international armed conflict comes into being as a result of

‘[a]ny difference arising between two States and leading to the intervention of members of the armed forces’.

This low threshold of application is nowadays still maintained by the International Committee of the Red Cross, and is followed in the case law of the ICTY (see Prosecutor v. Tadić, Jurisdiction Decision, 2 October 1995, §70: ‘whenever there is resort to armed force between States’) and the ICC (see Prosecutor v. Katanga, Judgment, 7 March 2014, §1177, adopting the Tadić definition).

On the other hand, this “first shot” approach has recently been called into question. In its final Report the ILA’s Use of Force Committee suggested (at p. 13) that short-lived or low-intensity confrontations between states were excluded from the scope of application of IHL:

state practice [since 1945] indicated that states generally drew a distinction between on one hand, hostile actions involving the use of force that they treated as “incidents”, “border clashes” or “skirmishes” and, on the other hand, situations that they treated as armed conflicts.

Mary Ellen O’Connell, the Chair of the Committee, notes that the ICRC position may be based on policy rather than law. In my view, however, it appears to be exactly the other way around. The Committee report  was only aimed to arrive at a “general” definition of armed conflict (see p. 3, at n. 7). It based its conclusions on a coalesced overview of inter-state and internal conflicts, doing injustice to the various existing types of armed conflicts and incorrectly conflating their distinct substantive criteria. Moreover, before taking into account subsequent State practice to interpret common Article 2, such practice must have duly constituted the agreement of the parties regarding its interpretation and thus be accompanied by the requisite opinio juris regarding its interpretative value. Affected belligerent states may well have treated minor incidents as not amounting to international armed conflicts out of political motives (eg to prevent escalation or loss of face) or for practical purposes (e.g., because the limited engagements did not cause any victims), rather than out of a strict sense of legal interpretation.

Instead, the exclusion of border clashes and other low-intensity (yet intentionally hostile) inter-State confrontations from the concept of  armed conflict stands in contrast to the widespread acceptance of the Tadić definition for the very purpose of classifying non-international ánd international armed conflicts (see e.g., the summary of the debate on Article 2(b) of the Draft articles on the effects of armed conflicts on treaties, §206-213). Therefore, and to avoid these inter-State hostilities from taking place in a legal vacuum, IHL must be respected as from the moment of the actual opening of hostilities between Ukraine and Russia.

Unfortunately Russia has resorted to a mixture of legal and extralegal arguments to exonerate itself. That being said, the application of IHL rests on factual criteria relating to the identity of the parties and the character of hostilities. As a result of the current situation Ukraine and Russia must now be regarded as bound by, on one hand, customary international humanitarian law and, on the other hand, obligations undertaken by them in treaties applicable to international armed conflicts, most importantly the four Geneva Conventions of 1949 and its First Additional Protocol of 1977.