Foreign Policy Research Institute

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Foreign Policy Research Institute

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Resistance to the Russian hybrid war on the legal front: will Ukraine win?

On January 14, 2021, the European Court of Human Rights (ECHR) published a decision on the admissibility of the Ukraine v. Russia case (re Crimea), which was adopted on December 16, 2020. The European Court declared admissible the complaint of Ukraine on 14 points, while rejected the complaint on the last three points. The decision gives rise to a legal process in which Ukraine will try to prove that the Russian Federation, having occupied the peninsula, systematically violates human rights against Ukrainian citizens. The ECHR decision, in particular, confirmed the position of the Prosecutor of the International Criminal Court. She qualified the events of 2014 in Crimea as an international armed conflict, since the Russian Federation used units of its armed forces to seize the territory of the Autonomous Republic of Crimea and the city of Sevastopol.[1]

Commenting on an online briefing, Foreign Minister Dmytro Kuleba said: «This is a victory for Ukraine. This is an important step towards bringing Russia to legal responsibility for its aggression against Ukraine. And with each step the price of this responsibility will grow. I am absolutely convinced that the legal set of actions of Ukraine, and this is not only the European Court of Human Rights, these are the processes that are taking place at the International Maritime Tribunal, the International Court of Justice and the International Criminal Court – they will confirm that truth step by step that Ukraine has reported to the world since 2014, when the Russian aggression started, and they will refute all the propaganda and disinformation that the Russian Federation was spreading in this regard.» It is worth noting that in his commentary, Minister Kuleba confirms the fact that this decision is only one of many steps towards bringing Russia to legal responsibility for the occupation of the peninsula.

The European Court of Human Rights does not have the authority to consider the issue of the occupation of Crimea as a whole, because it is beyond its competence. But since, according to international practice, decisions of institutions like the ECHR are authoritative for all international organizations, in the future, we will see a reference to this decision more than once. The court agreed that, starting from February 27, even the decisions of the courts adopted on the peninsula are invalid, since the courts of Crimea and Sevastopol lost their legitimacy after Russia took the peninsula under its control. Moreover, the Court prescribed the decisions in a way that would not undermine the status of Crimea as a Ukrainian territory. It was noted several times that the Russian Federation is responsible for Crimea not because the Crimea is «Russian territory», but due to the fact that since February 27 it has been exercising «effective control» over peninsula.[2]

Until now, Vladimir Putin has argued that inhabitants of the peninsula made the decision to join Russia by themselves through the so-called «referendum» on March 16, 2014. He kept saying that Kremlin had an exclusively technical role - to implement the will of the Crimeans. Nothing more. Although it is known that the so-called Russian «green men» landed on the peninsula on February 20. This date is also minted on the medal «For the Return of Crimea», which is awarded on behalf of President Putin.

By its decision, the ECHR put an intermediate point in the discussion «when Moscow took control over the peninsula». Since, according to the court conclusions, this happened no later than February 27, 2014 - the day when Russian troops appeared at the Verkhovna Rada of the Autonomous Republic of Crimea, the court, de facto, recognized that Russian Federation began the process of rejection of the peninsula belonging to an independent state three weeks before the «referendum»... And this means that there was no «peaceful expression of the will» of the inhabitants of the peninsula. The ECHR debunked this myth of the Kremlin, which was an important Putin’s argument in his attempts to justify the annexation of Crimea.[3]

In addition to this diplomatic victory, in January another event took place within the walls of the European Court of Justice, which is worth attention. Shortly after the decision in the case of «Ukraine v. Russia», on the 21st of January, the European Court of Human Rights issued another decision in the case «Georgia v. Russia – 2», which satisfied 15 out of 16 points of the Georgian complaint. Commenting on the last point the court declared that it had no jurisdiction for such consideration. We are talking about five days in August 2008, when the hot phase of the armed conflict in Georgia was in a full swing - the ECHR took a decision not to evaluate these events.

The judge from Ukraine Anna Yudkivska criticized this decision, along with her colleagues from Poland and Georgia. «We are amazed at these arguments. In our opinion, the role of this court is precisely in solving priority complex cases. Denying the jurisdiction of belligerent states over civilians in an area of ??hostilities in an international conflict undermines the very logic of international humanitarian law, which, in particular, places civilians at the center of military decision-making and places them in complex legal relationship with belligerent states, even before the first bullets were fired», as contained in explanation.[4] Also, the professor of public international law at the University of the British city of Nottingham Marko Milanovich gave his assessment of this decision in an interview with «Deutsche Welle». He noted that this is bad news for Ukraine when it comes to the fate of complaints about human rights violations in Donbass. «All claims regarding human rights violations, which will relate to the period of active hostilities, in the future, with a high degree of probability, can be rejected by the court», the expert noted.

However, according to Milanovich, there are still some chances to convince the judges that Russia is responsible for the violation of human rights in the Donbas during the hostilities in Ukraine. After all, the question remains controversial from a legal point of view. The Georgian case in the ECHR is an important lesson for Ukraine, which must be considered and everything possible should be done in order to avoid Georgian experience.

Summing up, we can state that the decision of the European Court of Human Rights in the case «Ukraine against Russia» is an undoubted diplomatic victory that Ukraine can use in further cases against the Russian Federation, because the legal fact of the Russian aggression is gradually emerging. Also, Ukraine keeps the issue of occupation on the agenda and dispels the myth of the allegedly peaceful annexation of Crimea. International experience shows that such court cases take many years, and it will be a long time before the next decision of the ECHR. Therefore, the government of Ukraine and public organizations that have contributed to the increase in the evidence base still have a lot of work to do before the final solution of this issue and before bringing the Russian Federation to justice for the crimes it committed in the occupied Ukrainian territory.