The End of Russia´s Hybrid War against Ukraine?

[Sergey Sayapin LLB, LLM, Dr. iur. is an Assistant Professor in International and Criminal Law at KIMEP University’s School of Law, Almaty, Kazakhstan, since 2014, and Director of the LLB in International Law Programme.] 

1. Introduction

On 25 November 2018, Russia attacked and seized three Ukrainian navy vessels, which were on their way from Odessa to Mariupol. Russia´s Federal Security Service said Ukrainian warships had entered Russia´s territorial waters without prior notification. Ukraine insisted that this contention was not correct, and that in accordance with Article 2(1) of the 2003 Treaty on Cooperation in the Use of the Azov Sea and the Kerch Strait, military ships of both States should enjoy the freedom of navigation.

In the hours that followed the incident, Ukraine´s Ministry of Foreign Affairs (MFA) issued a statement to the effect that the attack constituted “another act of armed aggression of the Russian Federation against Ukraine, as defined, in particular, in Article 2 of the Charter of the United Nations and the provisions of UN General Assembly Resolution 29/3314 of 14 December 1974 on the definition of aggression,” and that “Russia has de facto expanded its military aggression against Ukraine to the sea.” In the same statement, the MFA urged Ukraine´s “allies and partners to take all necessary measures to deter the aggressor, i.a. by applying new and strengthening existing sanctions, as well as by providing Ukraine with military assistance to protect its territorial integrity and sovereignty within the internationally recognized borders.”

2. Russia´s Hybrid Use of Force against Ukraine

It appears that the particular provision in the 1974 Definition of Aggression that Ukraine´s MFA referred to was subparagraph (d) of the Definition´s Article 3:

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

[…]

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

[…]

However, it must be recalled that any alleged act of aggression is subject to the provisions of Article 2 of the same Definition, which states:

The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity (emphasis added).

Consequently, the qualification of an act as aggression would make sense, first and foremost, in the context of the first use of force by a State, from which an international armed conflict would result. However, the incident of 25 November 2018 was not the first use of force by Russia against Ukraine, and a number of resolutions previously adopted by various international institutions have already qualified Russia´s use of force against Ukraine since February 2018 as aggression. For example, as early as in 2014, the Parliamentary Assembly of the OSCE was explicit in condemning the occupation of the territory of Ukraine, and the military aggression as well as various forms of coercion designed to subordinate the rights inherent in Ukraine’s sovereignty to the Russian Federation’s own interests.

In turn, the OSCE Parliamentary Assembly reiterated its support for Ukraine in 2015, and confirmed “that the actions by the Russian Federation in the Autonomous Republic of Crimea and the city of Sevastopol, as well as in certain areas of the Donetsk and Luhansk regions of Ukraine, constitute acts of military aggression against Ukraine.”

In October 2016, the Parliamentary Assembly of the Council of Europe unequivocally qualified the situation as “the Russian aggression in Ukraine.” In January 2018, the same Assembly explicitly referred to the same situation as “the ongoing Russian war against Ukraine.”

Last but not least, a statement made by the European Union on 10 November 2016 was entitled “Russia’s Ongoing Aggression against Ukraine and Illegal Occupation of Crimea” but the word “aggression” appeared only in the title but not in the text of the statement. On the other hand, the content of the statement left no doubt to the effect that the word “aggression” was employed in the title in its technical legal sense, and that the European Union condemned the effects of Russia´s aggression against Ukraine in the strongest terms.

Quite in line with those resolutions, the Prosecutor of the International Criminal Court stated in her annual Report on Preliminary Examination Activities (2018) as follows (emphasis added):

[T]he situation within the territory of Crimea and Sevastopol would amount to an international armed conflict between Ukraine and the Russian Federation which began at the latest on 26 February 2014, and that the law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an ongoing state of occupation […] (para. 64)

Further, with respect to the situation in Eastern Ukraine, the ICC Prosecutor held in paras. 72 ‒ 73 of the same Report that “direct military engagement between the respective armed forces of the Russian Federation and Ukraine, indicated the existence of an international armed conflict in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict.” Moreover, the Office of the Prosecutor was also assessing “whether the otherwise non-international armed conflict involving Ukrainian armed forces and anti-government armed groups could in fact be international in character,” with due regard to the Russian Federation´s “exercising overall control over armed groups in eastern Ukraine.”

These institutional attitudes are fundamental, since Russia has been denying its involvement in the use of force against Ukraine from the outset: it was not until April 2014 that President Putin acknowledged that the “little green men” who “ensured security” during the so-called “referendum” of 16 March 2014 were Russian military servicemen, and the acknowledgement to the effect that Russia “never said there [in Eastern Ukraine] were not people there who carried out certain tasks including in the military sphere” did not follow until President Putin´s annual press conference of 17 December 2015. In 2015, Ukraine´s MFA explained the “hybrid” nature of the conflict as follows:

Military aggression is just one element of the Russian hybrid warfare against Ukraine. Other elements encompass: (1) propaganda based on lies and falsifications; (2) trade and economic pressure; (3) energy blockade; (4) terror and intimidation of Ukrainian citizens; (5) cyber attacks; (6) a strong denial of the very fact of war against Ukraine despite large scope of irrefutable evidence; (7) use of pro-Russian forces and satellite states in its own interests; (8) blaming the other side for its own crimes.

These factors, taken together, represent a strong challenge to the application of international (in particular, humanitarian) law to the situation; for a more detailed discussion of Russia´s “hybrid” use of force against Ukraine, see my chapter in Professor Leila Sadat´s new book and a book I have recently co-edited with Professor Evhen Tsybulenko. Yet the incident of 25 November 2018 clearly marks the end of the “hybrid” phase of the armed conflict, with important legal consequences.

3. UN General Assembly Resolution A/73/193

The attack of 25 November 2018 was significant for a number of reasons. First, it was an act of war, which was carried out openly, in full knowledge that it would be attributed to Russia as such, and it quite certainly was a tactical measure to prevent further reinforcement of Ukrainian military presence in the Sea of Azov. Further, it must have been a signal that Russia de facto suspended the 2003 Treaty on Cooperation in the Use of the Azov Sea and the Kerch Strait on the grounds of an ongoing armed conflict with Ukraine. In peacetime, the military vessels of both States would enjoy an unimpeded freedom of navigation. Importantly, the Treaty does not require Ukraine or Russia to notify each other of a passage through the Kerch Strait, and such a notification requirement would only apply to “warships and other State-owned vessels of third States” (cf. Article 2(3) of the 2003 Treaty) ‒ which does suggest that Russia now considers the Treaty no longer to be applicable.

Probably most importantly, now, Russia cannot deny the existence of an international armed conflict with Ukraine, in the sense of applicable international law. This implies, in particular, that Ukrainian crew members may not be tried for illegally entering Russia´s territorial waters, for international law requires to treat the sailors as prisoners of war, as defined in the Geneva Convention III. Ukraine has already requested the European Court of Human Rights, under Rule 39 of the Rules of the Court, to indicate provisional measures with a view to safeguarding the crew members’ rights under the European Convention on Human Rights and with due regard to the Third Geneva Convention. If they are criminally prosecuted in Russia, this could be a ground for further countermeasures in accordance with the law of international responsibility: Interfax-Ukraine reported earlier in December 2018 that, according to the US Special Representative for Ukraine Kurt Volker, “the United States and Europe could strengthen sanctions against Russia or introduce new ones due to the seizure of Ukrainian sailors and ships.”

Most recently, a number of relevant issues were raised in the UN General Assembly’s Resolution 73/193. In particular, in Paragraph 8 of the Resolution, the General Assembly named the Russian Federation as an occupying power, and urged it to “withdraw its military forces from Crimea and to end its temporary occupation of Ukraine’s territory without delay.” This language unmistakably suggests the existence of an international armed conflict between the Russian Federation and Ukraine, and the recognition of this fact by the General Assembly. In line with its powers under the Charter of the United Nations, the General Assembly decided “to continue its consideration of the matter at its seventy-fourth session” in 2019. However, since both Russia and Ukraine are now overtly parties to the conflict, the matter may be considered by the Security Council under Chapter VI of the UN Charter, subject to Article 12 of the Charter, and both parties should abstain from voting, in accordance with Article 27(3) of the Charter. Although scholarly opinions diverge regarding the enforceability of the Security Council´s recommendations under Chapter VI, this could be a way to avoid further stalemate in the Security Council with respect to the dispute, and to consider possible solutions, as a matter of urgency.

4. Conclusion

On 27 December 2018, Georgy Bovt, a member of the Foreign Policy and Defence Council, a leading Russian think-tank, said in an interview that current tensions between Russia and Ukraine could result in “a new full-scale crisis” in 2019, and that Russia would “have to send regular troops” into Ukraine. Moreover, he added that “everyone considered [Russia] to be an aggressor anyway,” and “nothing new would happen from the point of view of the perception of our State.” Although formally not representative of an official position of the Russian State, this expert opinion must be taken quite seriously, since it seems to suggest that Russia might soon be prepared to accept losses associated with an open military confrontation with Ukraine. On the other hand, Mr Bovt acknowledged in the same interview, quite candidly, that “the Russian State could not oppose the West economically.” Hopefully, this understanding of international economic reality would deter individuals in the position of authority from deteriorating the situation any further, and help pave the way to an effective settlement of the conflict.