March 2014 l Use of force in Ukraine
What is the meaning of Russia's belligerence?
About the Law Society of New South Wales Young Lawyers – International Law Committee
The International Law Committee of NSW Young Lawyers hosted Dr Alison Pert on 11 March 2013 at the
Law Society of New South Wales. The discussion canvassed the background and presented an analysis of the
principles of international law applicable to the potential use of force in Ukraine since February 2013.
NSW Young Lawyers is a forum of young practitioners in the legal profession, providing opportunities to
influence the legal and social issues affecting the profession.
Source: http://www.lawsociety.com.au/about/YoungLawyers/Committees/InternationalLaw/index.htm
Ukraine: the West on the left, Russia on the East
The Ukraine gained independence in 1991,
but has faced problems of corruption,
development and rigged elections. In 2010,
the most recent President Yanukovych was
elected (seemingly fairly). Ukraine has been in
negotiations for entry to the EU which
involved certain conditions such as electoral
transparency. The deadline was November
2013, however the Ukrainian Parliament
blocked the agreements from going ahead.
The Ukrainian Parliament impeached
President Yanukovych, but as due procedure
was not followed, this was unconstitutional.
Since late February, an interim government
has arisen, but there have been waves of
protest.
Image from the BBC coverage of the Ukraine:
http://www.bbc.com/news/world-europe-26524056
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Russian intervention
On 27 February, an armed group captured some installations in Ukraine. They did not wear an
insignia but spoke Russian and carried Russian equipment. They have been filmed in confrontations
with Ukrainian military personnel, particular in the Crimea, which technically Ukrainian. The Crimea
is home to Russia’s only warm-water port, at Sevastopol. The significance of this is that it is the only
maritime zone where Russia can deploy its warships which is ice-free 100% of the year. Russia
therefore has important strategic interests in the Crimea/Ukraine.
On 1 March, President Putin obtained Russian parliamentary approval to use force in the Ukraine
and produced an invitation from President Yanukovych to ‘help’ in the Security Council.
Russia has also recently blockaded Crimea with warships. Russian sailors sunk decommissioned
Russian warships at the entrance of Lake Donuzlav, barring Ukrainian ships from entering Ukraine’s
territorial waters. Russian gunmen have blocked the Ukrainian military from accessing its military
airport at Belbek.
Crimea
Crimea is part of Ukraine but has a large degree of autonomy as well as a large Russian population.
The Crimean parliament recently unilaterally voted to join the Russian Federation and there is a
proposed referendum to resolve this question.
Use of force?
The naval blockade and the presence of Russian gunmen in key parts of Ukraine looks like an
occupation. There have been shots fired by Russian gunmen, and threats made. There does not need
to be a full-scale invasion and lives lost for this to constitute a use of force.
The threat or use of force is prohibited under Article 2 of the UN Charter.
By whom?
Russia denies that the gunmen belong to Russia and they do not wear Russian insignias. However,
Russia can’t avoid accepting that its warships are acting under its command.
Nevertheless, the relationship between the armed band and Russian authorities may be so close
that an issue of state responsibility arises – this is on the basis that the gunmen carry Russian arms,
speak Russian, and apparently show signs of Russian training. The ICJ in its well-known decision in
the Nicaragua case observed that the sending of armed bands into another state’s territory could
constitute an ‘armed attack’ if the scale and effects of the operation would be also be considered an
armed attack if carried out by regular forces [201].
If the gunmen are Russian military personnel, then the question of characterising the relationship
does not arise: the military is an organ of the state and Russia is responsible for their actions.
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Level 4 | 39 Martin Place | Sydney NSW 2000 | Phone: +61 2 9283 9009
www.ajurialawyers.com.au | www.ajuriaconsulting.com
Legal justifications?
Use of force is prohibited under the UN Charter. There are only 2 exceptions: collective security
action authorised by the Security Council and self-defence.
Neither of these is appropriate in the circumstances: the Security Council is paralysed by the
prospect of Russian veto. There is no obvious suggestion that Russia has been the victim of an
‘armed attack’ such as would justify self-defence.
“Protection of citizens abroad” has been advanced as a legal justification. This is a historical
justification which pre-dates (and probably has not been preserved under) the UN Charter
framework. The argument could run along the lines that protection of nationals abroad is an act of
self-defence, but this is not a widely accepted view. In any case, it is historically only a justification to
evacuate citizens, and certainly does not excuse Russia’s naval blockade. There is also a lack of
evidence of Russian citizens being imperilled to make a case of protection of nationals.
Consent? Russia seems to claim that it was invited by the Ukraine to intervene. But it relies on the
letter from Yanukovych, which was dated after his impeachment. Yanukovych can hardly be said to
represent the state anymore, and it is the state’s consent which is important. On the other hand, it
does not appear to be the case that the interim government really represents the state either, given
the unconstitutionality of the impeachment. Nevertheless, Ukraine’s parliament has been
democratically elected. Either way, where the troubled state’s government is so unclear, how can
Russia possibly rely upon having Ukraine’s consent?
There does not appear to be any particularly credible legal justification on Russia’s part.
– By Siobhan Clifford, LLB (Hons)/B.Int Studies
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Level 4 | 39 Martin Place | Sydney NSW 2000 | Phone: +61 2 9283 9009
www.ajurialawyers.com.au | www.ajuriaconsulting.com