War: A Legal Analysis
A few days ago the event occurred, I was amazed. The long-standing and good colleague, having returned from Ukraine and commenting on the support of my sovereignty and territorial integrity of the State, stated that I – no more and no less – partner Donbass kills children. On the timid attempts to protest, I was asked to travel to the Donbass and kill children himself, with his own money, because as a human rights activist, I was over (it literally).
Further, my opponent has been rolled about the following arguments: 1) armed conflict in Ukraine is an internal (with reference to the position of the Red Cross) and 2) This civil war, which “untied Kolomoysky”; 3) Russia does not participate in it, is not a party, the Russian troops in the Donbas, apparently not, since they were not found neither the OSCE nor my interlocutor; 4) Russia Crimea Capture does not have any relation to the war in Ukraine, “the Crimea and the Donbass – stories”; 5) Everyone who supports the sovereignty and territorial integrity of Ukraine, the overall responsibility for the deaths of civilians during indiscriminate shelling of settlements made by the APU.
In response to my attempts to transfer the discussion from the emotional to the legal framework as the last and the only “legal” arguments were presented to me bloody boys and girls in Donetsk.
Alas, the exposition of our views, as well as the manner to build the discussion is not unique; they are characteristic of a certain part of the human rights community and civil movements. Therefore, I consider it necessary to state its legal position on the situation in Ukraine. I emphasize – we are talking about a legal position that is independent of my political sympathies and antipathies, which I certainly are, but I’m trying to herein are not pedaling.
Of course, given below are not found and could not be reflected all aspects of the situation. In particular, I am not related to the subject of self-determination and the right of States to the so-called humanitarian intervention: both of these questions is so voluminous that require separate analysis. Below, I review mostly points raised in the above discussion: the state the right to self-defense against aggression and the protection of war victims.
1. The difference between jus ad bellum and jus in bello. In international law differ jus ad bellum – the State’s right to resort to the use of military force (including in order to protect the territorial integrity and repel the aggression) – and jus in bello – the duty of parties to armed conflict to restrict the means and methods of warfare to protect its victims. that is, to respect international humanitarian law (IHL). Ukraine has had and has the right to resort to military force to protect its sovereignty and territorial integrity on the basis of the United Nations Charter. But this in no way prevents it (as well as forces of the separatist) the right to violate the rules of IHL and in no way does not justify the alleged violations of these rules.
Hence my legal position. I fully support the actions of the Ukrainian authorities and the armed forces for the protection of his country’s independence and territorial integrity. At the same time, I insist that Ukraine is obliged to abide by international humanitarian law, is obliged to effectively investigate all alleged violations of its agents of international humanitarian law and human rights and to bring all perpetrators of war crimes to justice. Of course, all the above applies equally and on the other parties to the conflict – the Russian Federation and its personnel, as well as the authorities of the unrecognized “republics” and their combatants.
1.1. You can support the actions of the state and at the same time condemn the crimes committed by representatives of the state. It is clear to any person possessing the skills are not even legal, but simply logical thinking. I believe that the massive indiscriminate Allied bombing of residential areas of German cities during the Second World War, as well as the nuclear bombing of Hiroshima and Nagasaki, the US Air Force, caused mass death of civilians is a flagrant violation of IHL, which form part of the war crimes. I regret that the perpetrators of these crimes (the perpetrators, organizers) were not punished the same way as Nazi war criminals, and sympathize with the victims of these crimes. But this in no way undermines my confidence
The fact that the war against Nazi Germany was a legitimate part of the USSR and its allies, does not imply that the destruction of Dresden or the rape of German women were also legitimate. And vice versa – from the criminal nature of the destruction of Dresden and the rape of German women do not imply that the USSR, Great Britain and the United States had no right to carry on the war with Nazi Germany. And, of course, from all this it does not follow that all the supporters of the war against Hitler are accomplices in all the rapes and the barbaric bombings which have been subjected to the German city. This is the basics of international law, and it is sad that they have to explain on the fingers of people who call themselves human rights activists.
2. Jus ad bellum. I want to draw attention to the definition of the crime of aggression contained in Art. 3 General Assembly resolution 3314 (XXIX) of the UN General Assembly on December 14, 1974, and repeated word for word in the article. 8 bis of the Rome Statute of the International Criminal Court. Given that the Russian Armed Forces participated in the capture of the Crimea is not denied even by Putin, the operation of its annexation, beginning with the seizure of the ARC Supreme Council of the “green men” and the appearance of Russian troops and equipment out of their areas of deployment, it can at least be considered as falling within the scope of points ” and ” ( “any annexation by the use of force of the territory of another state”) and ” an e ” ( “The use of armed forces of one state in the territory of another state with the agreement of the receiving state, in contravention of conv Vij,
From that moment, Ukraine has emerged fully entitled to use the armed forces for defense against aggression, in accordance with Art. 51 of the UN Charter. This right if Ukraine did not use due to a sudden and treacherous attack by the Allies and the paralysis of public authorities associated with the revolutionary situation in Kiev. But this does not mean that Ukraine is in any way deprived of that right or voluntarily abandoned it.
2.1. In addition, at the same time there have been sporadic action with the use of weapons, including the caused death of the Ukrainian military and block the harbor warships in Crimea. These actions are in accordance with the classical precedent, reflecting the present moment a rule of customary international law (ICTY, Decision on Interlocutory Appeal of the Appeals Chamber Tadic on September 2, 1995, par. 70), should be considered as an indicator of the beginning of the armed conflict. Let me remind you also that, in accordance with the same definition of conflict is considered lasting as long, until a general peace agreement, regardless of whether combat operations are conducted.
2.2. As for the events in the Donbass, they started in the same way as in the Crimea – from capture by well-armed and equipped men in masks (sometimes acting from behind the civilians) administrative buildings and police departments, attempts to block and capture military parts of the fake referendum. The political program of so-called Donbass separatists (management of which is represented mostly Russian citizens) was as straightforward as Crimean – joining Russia ( “Putin will come – will bring order”). Only here the Ukrainian state was able to provide, first weak and then The increased armed resistance, and the international community – first symbolically and then really painful to pressure Putin’s regime.
Regardless of the fact that the conflict in eastern Ukraine had and has its own internal reasons, as well as on whether to participate in it by representatives of the Russian state, acting in an official capacity (though in the past to leave the territory of Ukraine with the “beech” tanks Russian troops and armored personnel carriers, I believe it is weak), there is no doubt that the Russian state has had and continues to have significant anti-government forces of financial and military aid, at least popustitelstvuya recruitment and sending of its territory in the zone of conflict, groups of mercenaries and volunteers. I think (and here will agree with me most of the experts), without Russian support for the self-proclaimed “people’s republic” would not have lasted a couple of weeks.
I repeat – it does not say that in Ukraine there were no preconditions for civil war (they were, and the Odessa tragedy puts it very eloquently). But the Russian government, instead of acting in accordance with the provisions of the Treaty on Friendship, Cooperation and Partnership between the Russian Federation and Ukraine on May 30, 1997, preferred using the neighbor’s turmoil, to make territorial treacherous capture and then start does not extinguish, and hard fan the fire with kerosene and feed the conflict in the east, supporting and supplying the supporters of the Russian annexation.
2.3. Thus, Russia steps are a continuation in Donbass began with the annexation Crimean armed conflict, have the same goal (annexation or, if due to inappropriate gain sanctions creating controlled breakaway enclaves) and a violation of at least paragraph g) v. 3 General Assembly resolution 3314 (XXIX) of the General Assembly and art. 8 bis of the Rome Statute ( “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State”).
Russia’s responsibility, at least can be set on the basis of the principle of “private dependence”, generated by the UN International Court of Justice in the “Nicaragua against the United States” (judgment of 27 June 1986). In this judgment, the Court said there is no clear evidence that the United States actually exercised control to such an extent that it could serve as a basis for the qualification of the Nicaraguan contras as a force, acting on behalf of the US government. However, the Court came to the conclusion about the existence of “private dependence” contras by the United States on the basis of the fact that “leaders have been selected by the United States”, and based on other factors, which include the organization number, training and equipping the troops, operations planning, target selection and the implementation of operational support (par. 75-125 of this decision). On this basis, the Court held that “the United States, training, equipping, financing, supplying with food contras or otherwise encouraging, supporting and assisting the military and paramilitary activities in and against Nicaragua, acted against the Republic of Nicaragua, in breach of its obligations under the customary international law not to intervene in the affairs of another state “(paragraph 3 of the decision).
I pay special attention that in this case the Court did not define armed conflict between the government and the Contras of Nicaragua as an international. However, this did not prevent the Court to the United States responsible for unlawful interference. Thus, the practice of the International Committee of the Red Cross to determine the conflict in the Donbass as an internal, this in order to jus in bello and presented, as far as I understand, by a single press release, the Organization of the July 23, 2014, can not affect the determination of the estimated liability Russia on the jus ad bellum.
2.4. With regard to “Undetected” units of the Russian armed forces OSCE observers, the latter has reportedly now seeing just for the two CPR – “Donetsk” and “Gukovo”; increase the number of observers is blocked by Russia. This allows observers to monitor only one kilometer of the Russian-Ukrainian border, a total length of hundreds of kilometers. What, how, in what quantities and directions moves across this border is not controlled by any international observers.
To comment on the fact of not detecting units, I’m not going to my colleague, the Russian army, as it (as well as the author of these lines) is neither a professional scout, or even a military analyst. Much more confidence make me data intelligence services of NATO countries (including satellite images), on the basis of which including make painful for Europe decision to tighten the sanctions, as well as the data of numerous journalistic investigations (including “Novaya Gazeta”), the Union of information committees of Soldiers’ mothers and Pskov MP Leo Shlosberg, almost paid with his life for his revelations.
I think that, if there was no tangible evidence of the presence of Russian armed forces in the Donets Basin, European Union, initially not very inclined to use serious and “double-edged” economic measures, and for several years gazing at the antics of the Putin regime through his fingers, hardly dare to on such an unprecedented step as sectoral sanctions. So, I think, in fact, the Russian state responsibility and its military and political leadership for the actions of “LC” and “DNR” in the Donbas is much more important, “according to a private” and can be installed in accordance with the principle of “effective control” (Formulated in the same decision of the International Court and subsequently applied the UN International Criminal Tribunal for the Former Yugoslavia to determine the nature of the conflict in Bosnia and Herzegovina) as the responsibility for the actions of its “agents.” However, it is a question not of law, and the fact, and here I am taking it upon myself to prejudge the conclusions of a possible trial. I hope that sooner or later will evaluate these circumstances, and the International Court of Justice and the International Criminal Court.
3. Jus in bello. There is no doubt that all parties to the armed conflict in Ukraine (APU and the armed forces of the unrecognized “People’s Republic”, allegedly supported by the Russian Armed Forces) committed and continue to commit violations of international humanitarian law, reaching the degree of seriousness of war crimes. This extrajudicial execution of persons detained in connection with armed conflict (prisoners and detained civilians), torture and ill-treatment of such persons, as well as attacks on civilian objects and indiscriminate attacks or disproportionate, resulting in death and injury to civilians and damage to civilian objects. I emphasize – the reports of authoritative international human rights organizations working in the region (notably Human Rights Watch and “Amnesty International”
Best known allegations of enforced disappearance, torture and murder of Crimean Tatars in connection with the actions of the Russian forces and pro-Russian forces in the Crimea, abductions, torture and killings of pro-Russian forces deputy fishermen and other persons in the Donbass, the extrajudicial execution of four men controlled Kiev forces near the mine ” Kommunar “air strike by the Air Force of Ukraine Luhansk regional administration caused death and injury to civilians, missile attack separatists or Russian air defense systems for citizens who “Boeing” that resulted in the deaths of civilians, as well as a number of indiscriminate attacks, the responsibility for which parties tend to lay on top of each other (and for which, presumably, are responsible both sides), the use of the APU of cluster munitions in populated areas cities,
3.1. These and similar crimes, committed by whomever they are committed, do not have and can not have any justification; persons who have committed them, ordered to be committed, incited to commit, etc., should be identified and brought to justice. Any attempt to rationalize these crimes absolutely cynical. But it is equally cynical attempt to silence and crimes on the one hand and the other protrusion for political purposes.
When I say that from shelling APU die Donbass children and then hint or say directly that to stop this destruction must give Donbass all sorts of devils, and the arrows or directly connect it to Russia, as before the Crimea – it is a political PR in the children’s blood, not having anything to do with morality or the law. Such hints are immoral because the blood of the victims of one side of a conflict intentionally or unintentionally smeared and rubbing the same offense other. Such hints are contrary to law because the offer to solve questions jus in bello means of jus ad bellum (ie to justify the annexation of the territory of a sovereign state that is a state violates international humanitarian law). This is roughly the same as the guillotine to cure a headache. For this “philanthropic”
3.2. How to ensure that overcoming the impunity of representatives of both sides in the conflict of war crimes and bring an end to their commission? In any case, not to be eaten by saluting Donbass Putin and his wolves. I think that with regard to Ukraine by the international community today has a unique opportunity, on the one hand, to exert pressure to ensure the effective investigation of crimes, on the other – to assist in this investigation. The condition of such an investigation may be the provision of regular forms of assistance, which is now vital for the Ukrainian state. And the assistance could be provided by both the investigating authorities of the European states, as well as experts of the International Criminal Court.
Harder with the separatists and Russia itself, where suspects can find a warm welcome and a safe haven. It should be recognized that the effective leverage against the side of the international community, for obvious reasons, no. However, in the future the situation may change. It seems that in the interests of Ukraine’s recognition of the jurisdiction of the International Criminal Court for crimes committed on its territory in connection with the armed conflict (since the annexation of the Crimea), in accordance with Art. 12 (3) of the Rome Statute (and later joining the statute). This could guarantee Ukraine’s independence and impartiality of justice (including the crime of aggression in accordance with Art. 8 bis). I think that it should be responsible for human rights defenders to speak both their Ukrainian and European partners. And of course, the most important task is to create a unified documentation database for committed during the conflict war crimes. This is a task independent and impartial organizations not affiliated with any of the parties to the conflict.
4. Just World. Another irresponsible position advanced by a certain part of our human rights community – peace at any price. For supporters of this strange doctrine in war there is no right or wrong, “all politicians and warriors on one person,” they are all equally responsible for the shedding of blood. Therefore, the only thing that is required of them – is to immediately negotiate a peace. Under what conditions these “dirty politicians” agree to such a pacifist does not care any proposals in this regard, he does not put forward: it is not his concern, politicians, as well as in horses, large head – even if they are thinking.
But the unjust world, significantly impairs the rights and lawful interests of individuals and states, is fraught with a new explosion of violence. Legitimization of annexation of the Crimea and the creation of the territory of continental Ukraine puppet pro-Russian enclave on the type of Transdniestria and South Ossetia (I think it is the minimum program of the Putin regime) as a condition of the world is unacceptable. Just peace in the Ukrainian land can be established only on the basis of respect for territorial integrity and national sovereignty of the Ukrainian state. All the levers of such peaceful settlement are in the hands of Russia. Termination of support of self-proclaimed “republics”, effective control over the borders in order to stop feeding their people with weapons and money, the return of Ukraine annexed Crimea – that’s the only way,
While Russia does not take these steps, the international community should not only maintain, but also increase the pressure on the Putin regime. On the contrary, any kind of de facto recognition or tacit consent to the implementation of European territorial conquests inevitably jeopardize not only peace on the European continent, but also undermine the entire global security system that was formed after the Second World War. The consequences of such softness world would have to reap a very long time.
5. The human rights and humanitarian activities. In the heat of the argument, which I wrote at the beginning of this material, I was cast: “Do not forget: the role of human rights activist – to save people!”. I think, however, that my esteemed opponent is no clear understanding of advocacy and how it differs from the humanitarian mission. Protection of human rights and humanitarian work – different kinds of activities, and they must be able to distinguish. When September 2, 2004 the former president of Ingushetia, Ruslan Aushev entered the Beslan school and agreed with the terrorists that they will release in infants with their mothers, it does not protect human rights – he saved the life of the people: it was a classic humanitarian mission. When 24-25 October 2002 Anna Politkovskaya wore captured in the Theater Center on Dubrovka water, it did not act as a human rights activist or a journalist. In Russian, for this type of behavior has a very precise word, preserved now, unfortunately, only in ecclesiastical, “intercession”. Thus, the Church of “sadness” to the secular authorities for certain people, for example, asks pardon those sentenced to death, the release of prisoners of freedom or ease their plight. This is a sacred mission, but it is in no way not to be confused with the protection of human rights.
At the forefront of human rights work is worth upholding the rule of law as an unconditional public interest – pereat mundus et fiat justitia (let the world crash, but justice done)! But the main value of humanitarian work is human life, as such, regardless of various legal aspects. In a democratic state of law, these activities can be combined, intertwined or in parallel; they do not act as competitors. On the contrary, hominum causa omne jus constitutum est (right entirely created for the benefit of the people), from which it follows that the assertion of a just law entails the protection of life and well-being of each individual member of society.
In the context of the systematic human rights violations under the rule of authoritarian regimes and armed conflict is more complicated: the protection of human rights can be fatal to enter into conflict with the interests of the protection of a particular victim of this violation. Here there is a situation, which Isaiah Berlin called a conflict of positive values. In the context of such a conflict it is necessary to clearly define what sort of activity you are doing now.
From the practice of the largest international non-governmental organizations the following examples. Hardly “Amnesty International” will go to bribe the judge to release the man recognized her a prisoner of conscience. Such a solution would undermine the very principles which it defends, since the organization first and foremost is the guardian of the rule of law. It protects the right and only by means of law – individuals who have been the victim of injustice. Protection of victims of anti-legal way for her unacceptable.
But here is the practice of the largest humanitarian organizations – the Red Cross – is quite different. Its mission is to save the lives of victims of war. And if, in order to get the women and children out of the firing, need, for example, to pay the wages of the senior officer of the checkpoint, it will be done. One of the principles of the International Committee of the activities of the Red Cross (ICRC) is confidentiality, which allows to have access to victims in order to protect their lives and personal integrity and lead a more effective dialogue with the authorities – even if the government presents undoubted war crimes and demands that they put forward as a terms of saving people, are incompatible with the concept of law. An example of this – the Red Cross cooperation with the Nazi German authorities to facilitate the prisoners fate.
International case law confirms that the ICRC has an absolute right to a non-disclosure; As decided by the International Criminal Tribunal for the former Yugoslavia in the Simic (Trial Chamber judgment of 27 June 1999 on the Prosecution’s Application for a witness interrogation), ICRC staff do not testify before any court or tribunal of any events they witness during operation.
It seems that the separation of the human rights activities of the humanitarian – an urgent need for many of those who now works in the zone of armed conflict in Ukraine. The human rights activist can not and should not, plunging into the particular situations of specific violations, leave the answer to global legal issues, including issues of jus ad bellum of the aggressor and the victim. But if you facilitate the exchange of prisoners, inspect their conditions, organize the work with refugees, otherwise “saving people” and understand that statements on points of law may undermine your ability, jeopardize your mission, or personal safety of wards you people should be abandoned from such statements, to declare this publicly refusing to continue to decide what your mission – exclusively humanitarian. It will be humane and lawful, and honestly. In any case, it is much fairer than pedaling the issue of violations of one party to the conflict, but says nothing about the other abuses, and blame all those who support the principle of inviolability of borders and binding international treaties in the Donbass shedding the blood of infants. Which, incidentally, the same red color as that of the young passengers downed “Boeing”.
6. Summary. So, from my point of view, Ukraine is the victim of armed aggression on the part of the Russian state, and it supports the armed forces and as such has the right to defend themselves with weapons in accordance with Art. 51 of the UN Charter.
In the course of the armed conflict has arisen all its sides commit violations of international humanitarian law, reaching the seriousness of war crimes. These crimes have no justification, the perpetrators are to be identified and brought to justice.
Questions the legality of the conduct of hostilities by the parties as such and compliance issues of international humanitarian law are different legal issues and should be resolved outside of any relation to each other.
The international community is obliged to provide assistance to Ukraine in the face of aggression, to provide pressure on the aggressor to stop aggression, to provide all parties (including Ukraine) pressure, as well as to the legal and institutional assistance for the effective investigation of crimes and bringing war criminals to justice.
To achieve this goal Ukraine itself can be involved the International Criminal Court tools. Just and lasting peace in Ukraine can be made only after the cessation of aggression and to eliminate its consequences, including the annexation of Crimea by the Russian Federation. Persons carrying out humanitarian missions in the area of armed conflict, may (and, in certain situations – the obligation) to refrain from evaluations legality of actions by the parties to the conflict in the interest of the victims.
Author: Stanislav Dmitrievsky, a human rights activist (Nizhny Novgorod)
Sourse, 27/10/2014
