Russian aggression against Ukraine and its punishment (legal analysis) 

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2014/08/29 • Military analysis

Mykola Siriy

Hundreds of facts on systematic military action Russia has led against Ukraine on Ukrainian territory within Donetsk and Luhansk oblasts have been collected in the past months. They include sabotage acts, which were and still are being committed by numerous Russian sabotage groups; the Russian army firing at Ukrainian territory from Russia; fire using Russian artillery systems which illegally infiltrated Ukrainian territory from time to time; individual aviation attacks; participation in armed clashed in Donbas of Russian special troops and airborne regiments.

Each fact is an act of aggression and a military crime both according to Ukrainian legislation and the norms of international law. In particular, the Ukrainian Criminal law prescribes punishment for planning, preparation or developing aggressive war or military conflict, as well as aggressive military action in article 437.

Each fact should not be turned into military conflict statistics, but has to be investigated immediately and filed as a plaint in court.

Military (armed) conflict, which has been going on in Donbas for several months, was named an antiterrorist operation by the Ukrainian state. This definition, despite some discussion, reflects the general nature of the events. From the perspective of international law, armed conflicts are divided into international and internal state conflicts. Individual conflicts within a state may have an international nature. As such, if an armed conflict is going on the territory of just one state, however, at the same time another state is supplying weapons and equipment, financing, recruiting and sending mercenaries, participating in the planning and coordination of military cooperation at the same time, we have an international military conflict.

Steps to full-scale aggressive war

The events of the past day are proof that Russia is making a conscious step away from systemic acts of aggression to waging full-scale aggressive war. Today this step is characterized by transitioning from hidden aggression in the shape of supplying weapons and equipment, recruiting, training and directing mercenaries, financing separatists, participation in the planning and coordination of combat action in the east of Ukraine, sabotage counteraction, conducting individual aviation attacks, shooting at Ukrainian territory using various types of Russian artillery to direct open military invasion. These are significant changes in quality, which have been stated by leading world countries in various forms.

According to the general rule, to deem aggression “an aggressive war,” the goal of full or partial annexation of the territory of a foreign state should be met, and the use of military power has to reach a significant level and intensity. Meanwhile, as is known, the Nuremberg Trial deemed the occupation of Denmark and Luxembourg aggressive war, despite the fact that these states were occupied without the use of significant military power. Another example: the occupation of Czechoslovakia and Austria was seen by the trial only as “aggressive action.”

Currently we have the de-facto annex of part of Ukrainian territory (Crimea and a fraction of Kherson oblast) and use of military power at a significant level and intensity.

Russia is moving towards a void

Russia has had the audacity to balance on the blade within the hybrid war format, trying not to exceed the “frame” of hidden aggressive acts. It is interesting that the Russian criminal law only presumes responsibility for aggressive war and does not prescribe criminal prosecution for individual acts of aggression. Today the Russian servicemen have directly violated their own criminal law. As such, article 353 of the Russian Criminal Code prescribes a jail sentence of up to 15 years for planning, preparation, development or waging aggressive war. Accordingly, every Russian servicemen that crossed the border with weapons in hand is a military criminal according to Ukrainian legislation, the Russian criminal code, and according to international criminal law.

Article 6 (a) of the Nuremberg Trial statute declares that “planning, preparation, development or conduct of aggressive war or war in violation of international agreements…” is a crime against humanity. This demand was also directly reflected in the UN Statute, article 2 (4) of which prohibits threatening with violence or using violence against territorial integrity or political independence of any state.

Contemporary countries establish strict criminal responsibility for crimes against peace and military crimes which, as is known, do not have expiration dates, according to the general rule.

Russia is obviously moving towards a void. There is no doubt that international order will be renewed on the European continent and the Russia aggressor will be held responsible in accordance to their actions.


 

Source: Radio Liberty

Translated by Mariya Shcherbinina

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