Russia’s Armed Aggression Against Ukraine: Positioning of the Parties
Under present conditions the highest immediate threat to the national security of Ukraine is the armed aggression of Russia, which has been ongoing since February 20, 2014. It resulted in the unlawful annexation of the Autonomous Republic of Crimea and Sevastopol city, temporary occupation of a number of rayons (counties) of Ukraine in Donetsk and Luhansk oblasts (provinces), tens of thousands killed and mutilated among the civilian population and military personnel of Ukraine, hardships for more than 1.5 million internally displaced people, plunder and deliberate destruction of government and private property of citizens and legal entities, criminal destruction of infrastructure and the environment in the annexed and occupied territories of Ukraine, as well as war crimes and crimes against humanity against civilians and military personnel of Ukraine committed by the Armed Forces and occupational administration of the Russian Federation.
In terms of international law, the armed aggression of the Russian Federation will be ongoing as long as the territories of Ukraine are controlled by the aggressor state and until the territorial integrity of Ukraine is restored.
Having unleashed armed aggression against Ukraine, the Russian Federation committed a grave international crime that entails its international legal responsibility. The Russian Federation is thus obliged to restore the pre-existing legal order, by cease its war activities, return without any conditions the annexed and occupied territories to Ukraine, compensate for the damage and/or losses caused to the Ukrainian state, Ukrainian citizens and legal entities, and to punish the persons guilty of war crimes and crimes against humanity.
The armed Ukrainian-Russian confrontation, as a consequence of Russian aggression, is an international, not internal, conflict. As the aggressor state, Russia may not claim to be a peacemaker, mediator, or guarantor in a settlement to the conflict.
In the attempt to avoid international legal responsibility, the leadership of the Russian Federation groundlessly considers the annexation of Crimea as a legitimate act and cynically denies the participation of its Armed Forces in the seizure of Crimea and the ongoing armed aggression in the east of Ukraine.
At the same time, the representatives of the Russian Federation signed the Minsk arrangements and are attempting to exploit their provisions as an instrument for imposing on Ukraine terms of a settlement that are contrary to universally accepted rules of international law, not compatible with the Constitution of Ukraine, and that are detrimental to the unity and independent statehood of Ukraine and, its chosen course of civilizational development.
Trying to stop the escalation of Russian aggression, the Ukrainian leadership was compelled to sign the first Minsk Arrangements in September 2014. However, Russia did not fulfill its commitments. Not only did Russia fail to withdraw its armed forces from Ukrainian territory, but also extended the war, and then in February 2015 imposed on Ukraine even more draconian terms for a settlement. Russia decided to sign the Minsk Arrangements as its leadership expected a lifting or at least an easing of sanctions by the international community and also anticipated the selective implementation only of their certain provisions that would benefit the Russian side alone.
After more than five years of war, Russia not only failed to fulfill any of its obligations under the Minsk Agreements, but has repeatedly and grossly violated their provisions. In the meantime, the leadership of the Russian Federation is demanding that Ukraine hold elections in the occupied territories and create a special status for Donetsk and Luhansk oblasts.
In terms of international law, the Minsk Arrangements have been nil and void since the moment of their signing, as they were imposed on Ukraine by force. Nor are they valid under the Ukrainian Constitution since they were not submitted to and ratified by the Verkhovna Rada of Ukraine.
Ukraine could have withdrawn from the Minsk Arrangements due to unceasing and systematic breaches of their provisions by Russia and because they were not implemented by December 31, 2015, deadline.
In the pursuit of peace, as early as September 16, 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine No.1680-VIII “On the Special Procedure of Local Self-Governance in Some Districts of Donetsk and Luhansk regions.” The final provisions of the law stipulate that it would come into force only after all Russian armed forces are withdrawn, and new local governments are freely elected according to the OSCE standards. Even though Russia refused to withdraw its military forces from the territory of Donetsk and Luhansk, the law was extended from year to year. The law remains in effect until December 31, 2019, but still cannot be applied, because of ongoing Russian aggression.
Thus, as a consequence of the Russian Federation’s position, the Minsk Arrangements were stillborn in a legal sense and also became useless as an instrument for a political settlement.
In the period following the adoption of the Minsk Arrangements, Ukraine undertook a policy of successfully implementing government decentralization reforms. Several essential legislative acts in this regard, rendered irrelevant the implementation of Paragraph 11 of the Package of Measures for the Implementation of the Minsk Arrangements sighed on 12 February 2015 that called for establishing a special status for specific districts of Donetsk and Luhansk oblasts.
Even if the Minsk Arrangements could in some way be applied in the pursuit of peace they could only be employed on the condition that their interpretation and application comply with the rules of contemporary international law, the Constitution and laws of Ukraine, including laws on government decentralization and reformatting local self-governance structures. The security provisions of the Minsk Arrangements could be an instrument leading to a settlement. However they would have to be implemented in accordance with generally accepted principles of international law and justice, but not whimsical demands of the aggressor.
Ukrainian Plan for a Just Peace
Based on the foregoing, any negotiations for a peaceful settlement, regardless of their format, level, or formula, Ukraine is to propose and defend the following phased plan for establishing a just peace:
1. Immediate release by the Russian side of all Ukrainian civilian hostages and expeditious exchange of prisoners of war according to the “all for all” principle.
2. Complete and unimpeded withdrawal to the Russian side of the internationally recognized border with Ukrainian of all Armed Forces of the Russian Federation, including all categories of heavy weapons, military equipment, personnel, and material and technical resources, to be carried out under the control of an independent peacekeeping force and within 90 days after the officially established date of completion of the full separation of the Armed Forces of Ukraine and the Armed Forces of Russia.
Simultaneously with the withdrawal from Ukrainian territory of all Russian Armed Forces back across the Ukrainian-Russian state border in Donetsk and Luhansk oblasts, all Russian occupation regime structures are to be dismantled, including, but not limited to expulsion of all structures of the self-proclaimed “DPR” and “LPR” (the so-called Donetsk and Luhansk People’s Republics).
The timetable for the withdrawal of the Armed Forces of Russia shall be agreed between the representatives of Ukraine and Russia through the mediation of the independent peacekeeping force.
The completion of the full withdrawal of the Russian Federation’s Armed Forces from Donetsk and Luhansk oblasts shall be documented in a special Protocol signed by representatives of Ukraine, the Russian Federation, and independent peacekeeping force.
3. Deployment of Ukrainian border troops along the internationally recognized Ukrainian-Russian border within three days after the full withdrawal of the Armed Forces of the Russian Federation and unimpeded administration of the state border by Ukrainian authorities, including installation of border signs and border checkpoints, designation of prohibited zones, and construction of defense installations.
4. Placement of monitoring facilities of the independent peacekeeping forcealong the Ukrainian-Russian state border, in accordance with the agreement concluded by representatives of Ukraine and representatives of the peacekeeping force.
5. Pending free elections in the de-occupied territories, a special law of Ukraine shall be adopted to exempt from criminal and administrative prosecution and punishment, persons who participated in the events in the territory of Donetsk and Luhansk oblasts, except for individuals who are suspected of committing war crimes and crimes against humanity.
6. Conduct free elections in the de-occupied territories of Donetsk and Luhansk oblasts within the timetable established by Ukrainian law and resolutions of the Verkhovna Rada of Ukraine, in accordance with the OSCE standards (1990 Copenhagen Document) and, under control of independent international observers.
7. Following confirmation by the OSCE ODIHR Mission Final Report of the legitimacy of the elections and their compliance with the OSCE standards, the national decentralization reform policies adopted in accordance with Ukrainian law will be applied to local self-governments in the de-occupied rayons of Donetsk and Luhansk oblasts.
8. Simultaneously with the de-occupation of certain rayons of Donetsk and Luhansk oblasts, the Armed Forces of the Russian Federation shall be completely withdrawn from the territory of the annexed Crimean Peninsula, and the activities of the Ukrainian authorities in the de-occupied Crimea shall be peacefully resumed according to the timetable agreed through the mediation of the signatories to the Budapest Memorandum of 1994.
9. Negotiations will be initiated regarding Russian compensation for the losses suffered by Ukraine as a result of the damage caused by the armed aggression of the Russian Federation as well as with regard to punishment of persons guilty of committing war crimes and crimes against humanity.
10. Until the instance when the situation between Russia and Ukraine is resolved, and in accordance with international law and Ukrainian law, full responsibility for ensuring protection of public order, acceptable living conditions and basic human rights the livelihood of the civilian population in the occupied territories of Ukraine shall be placed upon Russia as the state exercising general control in those areas.
In demanding a just peace, the representatives of Ukraine must resolutely oppose any attempt to impose a dishonorable peace upon Ukraine under the conditions of the aggressor state. Ukrainian authorities must follow the Law of Ukraine No.2268-VIII “On the Particular Aspects of the State Policy to Ensure Ukraine’s Sovereignty over the Temporarily Occupied Territories in Donetsk and Luhansk oblasts,” dated January 18, 2018. In no case may they cross the red lines defined in the open statement to the President of Ukraine “We will not allow capitulation,” approved by the People’s Assembly (Veche) convened in Kyiv on September 19, 2019.
The leadership of the Russian Federation officially denies the participation of its Armed Forces in the aggression against Ukraine and the Ministry of Foreign Affairs of the Russian Federation refused to turn to the UN Court of Justice to establish the facts related to the armed attack on Ukraine. Therefore, in practical terms it is extraordinary important to establish a juridical case at the national level to invoke Russia’s international legal responsibility for war of aggression against Ukraine.
In order to initiate implementation of Russia’s responsibility, it is necessary to create a central body at the executive branch of government with a special status for preparing consolidated claim on behalf of Ukraine, as the state which suffered aggression, against the Russian Federation, as the aggressor state. The creation of such a body is envisaged by the Law of Ukraine No.2268-VIII “On the Particular Aspects of the State Policy to Ensure Ukraine’s Sovereignty over the Temporarily Occupied Territories in Donetsk and Luhansk oblasts,” dated January 18, 2018.
The consolidated claim should be an official document establishing the legal position of Ukraine concerning Russia’s responsibility for the armed aggression. The preparation for such claim requires a systemic processing of documents, factual materials, legally prepared or registered protocols regarding interrogations of prisoners of war, testimonies of civilians, judgments, rulings and sentences of Ukrainian courts. In sum, it is the establishment of a centralized and unified evidence database, as unassailable factual grounds for substantiating the legal position of Ukraine and its demands to the Russian Federation as the aggressor state.
It is of utmost importance that the consolidated claim include a systematic presentation of the facts that establish the direct involvement in the armed aggression against Ukraine of not only the regular units of the Armed Forces of the Russian Federation but also of its irregular units consisting of mercenaries which are created, armed, guided, controlled, and funded by the Russian Federation and whose actions fit within the parameters of armed aggression, as set out in para ”g” of Article 3 of the UN General Assembly Resolution 3314 (XXIX) “The Definition of Aggression”, dated December 14, 1974; para “g” of Article 8bis (2) of the Rome Statute of the International Criminal Court; and part 8 in Article 1 of the Law of Ukraine No.1932-XII “On Defense”, dated December 6, 1991.
Equally important is to have a thorough presentation of the facts that establish that the Russian civilian administration and the Armed Forces of the Russian Federation constitute the occupation administration and occupation troops in the annexed Crimea, and that the function of occupation administration of the Russian Federation in the temporarily occupied rayons of Donetsk and Luhansk oblasts are executed by the so-called “DPR” and “LPR”, created by the Russian special services, and that the regular and irregular units of the Armed Forces of the Russian Federation are the occupying troops in these oblasts.
The central focus of the consolidated claim should be quantification and qualification of the damages to the Ukrainian state, society, and citizens caused by the armed aggression of the Russian Federation. Justification of the demands for the extent and forms of compensation for the damages suffered by Ukraine as a result of the aggression should be the key part of the consolidated claim. Particular attention should be accorded to the war crimes and crimes against humanity committed by the top political leadership, military command and personnel of the Armed Forces of the Russian Federation.
The consolidated claim should be submitted to the Russian Federation as an official document with an accompanying diplomatic note presenting Ukraine’s view of the peaceful procedural ways for addressing the claims (direct negotiations, negotiations with the participation of third parties, international arbitration, the UN Court of Justice, etc.).
The consolidated claim will be a powerful tool to refute the allegations from Russian authorities and propaganda that the events in eastern Ukraine are an internal conflict and not a continuation of Russia’s armed aggression, which began with the seizure of Crimea. Such a claim will be an official document that unambiguously documents the legal position of Ukraine and clearly outlines its demands to the Russian Federation as the aggressor state and which have no statute of limitations.
The refusal of the Russian Federation to consider the consolidated claim will create an additional legal basis for extending and strengthening the international sanctions imposed by the Western democracies against the Russian Federation.
Until complete de-occupation of all Ukrainian territories is secured, Ukraine and the international community should maintain the application of coercive measures involving sanctions at the national and international levels against Russia as an aggressor state. The Ukrainian leadership must ensure the development and implementation of a systematic and sustained sanctions policy against Russia.
Only then will Ukraine’s appeals to our Western partners for maintaining and extending sanctions against Russia be understandable, legitimate, and convincing.
The application of sanctions against Russia by Ukraine must be synchronized with the sanctions of the international community.
The current sanctions policy of Ukraine against the Russian Federation consists primarily of personal restrictive measures against a relatively small number of Russian citizens and Russian companies, as well as a delayed introduction of certain restrictions on trade and only with regard to the temporarily occupied territories. Sectoral sanctions remain limited, concern primarily, air travel and the importation of Russian gas. The situation is clearly asymmetrical, considering that the Russian Federation abolished the free trade regime with Ukraine in 2016, completely prohibited gas transit from Ukraine to third countries through Russian territory, and imposed an embargo on the import of many Ukrainian goods. As a result, according to the trade representative of Ukraine, the direct financial losses of Ukraine in the short term reached approximately one billion US dollars.
Due to the absence of a systemic sanctions policy by Ukraine, a considerable volume in Ukrainian-Russian trade remains in place. Hence, Ukraine’s greatest enemy remains as one of its major trading partners, which constitutes a serious threat to our national security.
The senior political leadership of Ukraine has to abandon situational tactical decisions which are advantageous, first of all, for certain oligarchic clans. Instead, it must build a nationwide strategy to protect the interests of the country and society under circumstances of Russian aggression and begin to apply systemic and large-scale sanctions against the aggressor state.
This is a challenging task that requires considerable time and effort but needs to be addressedas promptly as possible. An analysis of Russia’s practices in dealing with Ukraine shows that Russia has always used against Ukraine all aspects of state-to-state relations including particularly in economic, military, and humanitarian spheres.
This is evidenced by the numerous hybrid attacks, such as energy supply, trade, food, information, or other wars, that are periodically launched by the Russian Federation against Ukraine. When waging such wars, the Russian leadership accepts it’s own economic losses for the purpose of achieving its geopolitical goals.
Therefore, the leadership of Ukraine must strive for maximum diversification of bilateral relations with the countries of the world in order to reduce dependence on Russia in all spheres. The relations with the Russian Federation should remain frozen and focused on sanctions for as long as it’s armed aggression against Ukraine continues.
One of the priorities for Ukrainian diplomacy should be to promote sustaining and strengthening sanctions against Russia by the international community.
In strengthening the national security of Ukraine, it is necessary to understand that the ruling elite of Russia, supported by the majority of the Russian society that has been brainwashed by chauvinistic propaganda, considers Ukraine as its existential enemy. The ultimate goal of Russian policy toward Ukraine is to totally destroy the Ukrainian nation and its independent statehood and thus annihilate Ukraine as a civic nation and geopolitical reality.
Irrespective of the outcome of the negotiations with Russia, and to counter Russia’s plans for the destruction and eradication of Ukraine, it is critically to develop and implement a set of Ukrainian strategies in the following key areas:
- ensuring the irreversibility of Ukraine’s civilizational choice by building a strong national security sector concurrently with seeking to become a full-fledged member of NATO;
- developing the Armed Forces of Ukraine in compliance with NATO standards, adapted to Ukrainian needs, realities, and experience;
- pursuing a systematic Ukrainian-centric policy focused on strengthening of Ukraine’s national unity and identity;
- achieving energy independence of Ukraine;
- creating a modern multi-layered territorial defense, primarily and particularly along the borders with the Russian Federation and the Republic of Belarus;
- modernization of Ukraine’s defense industry;
- development of new weapons systems with a focus on high-precision missile and air defense systems;
- reform of the special services;
- expanding and strengthening military and technical cooperation with NATO and its member states in order to accelerate the full membership of Ukraine in the Alliance;
- improving the regulatory framework of national security policy, taking into account current security challenges.
The aforementioned strategies should complement each other and be implemented in the context of systemic integrity. Their goal is to create a reliable and effective mechanism for ensuring the national security of Ukraine.
This document is the basis for further elaboration, including additional documents, strategies and action plans focusing on issues of priority importance for strengthening the independent statehood of Ukraine.
Approved by the Strategic Council of the
Capitulation Resistance Movement at its meeting in Kyiv on October 31, 2019.
 The Armed Forces of the Russian Federation and the occupational administration of the Russian Federation should be understood as its military units and occupation structures as defined by the Law of Ukraine No.2268-VIII “On the Particular Aspects of the State Policy to Ensure Ukraine’s Sovereignty over the Temporarily Occupied Territories in Donetsk and Luhansk oblasts”, dated January 18, 2018