By: Eduard J. Miska
Ukraine’s litigation to force a reversal in activities related to the Russian-backed separatist movements in eastern Ukraine as well as Russian activities related to the rights of Crimean Tatars represents a continued international legal shift towards interstate “lawfare”. Building on a disaggregated lawfare-centric litigation strategy employed by Georgia after the 2008 Russo-Georgia War, Ukraine has engaged in its own lawfare offensive. Usage of international institutions like the ICJ has allowed Ukraine to pursue charges related to ICSFT and CERD that could weaken Russia’s capabilities by de-legitimizing dependencies in the frozen conflict. Successful litigation may set precedent for future states locked in frozen conflicts. In this paper, I define lawfare and examine its connections with hybrid warfare and Russian “New Generation War”. Then, I examine Russian and Ukrainian interpretations of international law before analyzing the ongoing Ukraine v. Russian Federation case that is before the ICJ. I argue that lawfare is a hybrid litigation and foreign policy strategy when utilized by a smaller defending state against a larger attacker. Lawfare strengthens the smaller states policy objectives, while weakening the claims of the attacker.
In 2017, a new front opened in the frozen conflict between Ukraine and the Russian Federation. This front would not be supplied by bullets and artillery, rather it would be a Ukrainian offensive of legal means at the International Court of Justice. Defined by retired US Air Force Major General Charles Dunlap as the usage of international law “as a means of realizing a military objective”, lawfare has become the newest form of combat between the two post-Soviet states. Ukraine v. Russian Federation (2017) is an ongoing ICJ case where Russia stands accused by Ukraine of violating two international agreements to which it is a party to: the International Convention for the Suppressing of Terrorist Financing (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Ukraine received a key legal victory in 2019 when the court ruled that it had jurisdiction to hear the claims and that application of said claims would be admissible. As of April 2021, the legal team for Russia is in the process of forming a counter-memorial (after being granted an extension by the court due to the ongoing Covid-19 pandemic). Ukraine’s application of lawfare against Russia begs the question: what is its strategic objective? The ICJ cannot force Russia to return the Crimean Peninsula or abandon its efforts in the Donbass. Therefore, Ukrainian lawfare is asymmetric in purpose, like a band of partisans this application of legal means as a continuation of war is meant to harass and hinder Russian efforts in the region. For Ukraine, any ruling to which the dependencies established by Russia in eastern Ukraine or Crimea are de-legitimized in the eyes of the international legal system, is a victory via lawfare. The claims are targeted at both areas of contention: the ICSFT claim is related to Russian financing of separatists in the Donbass while the CERD claim is regarding discrimination by Russia towards the Crimean Tatar community within Crimea. Ukraine v. Russian Federation, while not as quick as a combat operation, establishes a new opportunity for frozen military or political “David vs Goliath” scenarios to be continued via international legal institutions as a form of lawfare.
The Seizure of Crimea and Eastern Ukraine Separatists:
Ukraine’s relationship with Russia has deteriorated significantly since the friendly cooperation seen during the 1990s in which agreements such as the Budapest Memorandum (1994) and the Friendship Treaty (1997) were signed. The election of kleptocratic Ukrainian President Viktor Yanukovych in 2010 and his decision to renege on a European Union association agreement in 2013 in favor of a closer alignment with Russia produced the Euromaidan revolution in 2014. The immediate chaos of revolution in Ukraine provided Russian President Vladimir Putin with an opportunity to re-take the Crimean Peninsula and support a separatist movement in Eastern Ukraine, both moves resulting in a sharp increase in Putin’s domestic approval ratings. This application of hybrid war (the “Gerasimov doctrine”) by the Russian military in Ukraine utilized non-conventional and legal means to secure objectives like the annexation of Crimea. Examples in Crimea included the presence of unmarked Russian troops (the “little green men”) and a snap referendum that lacked validity and was carried out using pseudo-legal backing. Russo-Ukrainian relations have remained poor since 2014 and the War in the Donbass has become a frozen conflict with Ukrainian forces unable to dislodge separatists.
Russian Hybrid War Strategies and Methods:
Russian military strategy in Ukraine during the initial 2014 operations exemplifies the concept of hybrid war, a style of combat that utilizes:
“an economy of ‘force war’, in which State or non-State actors interact with a minor traditional military investment. These actors will use indirect and multidisciplinary approaches (civil and military, legal and illegal, kinetic and nonkinetic, high-tech and ‘rock-art’ means, etc.)”
The difficulty in defining the blend between asymmetrical combat, influence operations, and deception-centric warfare, lay in the nonlinearity of modern warfare studies. Mosquera and Bachmann emphasize in their definition that hybrid war is to be used by:
“eroding and delegitimizing the internal and external prestige, reputation, and support of a superior military force, State or States’ apparatus, and/or international organizations;”
However, Berzins argues that Russian actions in Ukraine do not constitute the Western-centric definition of hybrid wars but is instead a unique Russian doctrine originating from Soviet maskirovka techniques and the writings of Russian General Valery Gerasimov. He summarizes Russian military doctrine that it is based on “the idea that the main battle-space is the mind”. Utilizing all tools, both military and non-military to further a political objective, Russian strategy in Ukraine has been successful in “consolidating stagnant situations”, “building new dependencies”, and “creating confusion”. Through this lens of hybrid/New Generation war, Russian actions in the field are comprehensible. However, this does not mean that Ukraine has not observed and utilized said asymmetrical techniques for its own purposes. Engaging in lawfare with Russia, Ukraine is applying asymmetrical lessons to the international legal sphere. The disaggregation of multiple cases against Russia before multiple international institutions (ranging from the ICJ to World Trade Organization to the European Court of Human Rights) is Ukraine’s hybrid lawfare counter; taking advantage of a decentralized international legal system to fight Russian illegality within legitimate arenas of the mind. While Russian New Generation warfare seeks to sow confusion and legitimize dependencies within Ukraine’s sovereignty (like the Luhansk People’s Republic or Donetsk People’s Republic), the Ukrainian counterattack is the use of legitimate international authorities to weaken said dependencies and de-legitimize Russian efforts. Whereas international law and Russian statist approaches to the jurisdiction of the legal arena reduce the fluidity of hybrid lawfare, Ukraine v. Russian Federation remains an extension of Ukrainian geostrategic objectives by legal means.
Lawfare, like hybrid war, has a variety of definitions and has a murky origination in the sphere of international legal studies. Dunlap, a modern scholar of lawfare who popularized the term at the beginning of the 21st century, states that lawfare is:
“it is best understood as the use of law as a means of accomplishing what might otherwise require the application of traditional military force…Most often, however, it will only be one part of a larger strategy that could likely involve kinetic (lethal) and other traditional military capabilities.”
For Dunlap, lawfare is “ideologically neutral”. It is not a tool that requires ideological or political foundations but should be viewed as a weapon to be deployed like any fighter jet or battlecruiser. Trachtman narrows this definition further and argues that it is a:
“substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective.”
To be viewed under Dunlap is to associate lawfare with kinetic means, whereas Trachtman sees lawfare as a surgical device that would be conjoined with military structures and policy to produce the desired outcome. Even with divergences in definition, lawfare remains an applicable legal strategy by both large and smaller states. Past applications in the immediate post-Soviet geography includes a disaggregated litigation strategy launched by Georgia against Russia after the 2008 Russo-Georgian War. While this application of lawfare has had mixed results as the ICJ case Georgia v. Russian Federation (2008) was dismissed by the court on procedural grounds. Like Ukraine, this case targeted Russia through CERD, however, the Russian defense successfully convinced the court that Georgia failed to properly negotiate with Russia with regards to the claims. Georgian lawfare has become a bogged down in the bureaucracy of the European Court of Human Rights (ECtHR) and the International Criminal Court (ICC), and with the core piece of their litigation strategy gone, Georgia’s application of lawfare should be viewed as a failed extension of geopolitical objectives. However, as Marchuk argues, this failure should not be considered without its larger impact on the lawfare field. She presents a more macro thesis on lawfare, arguing that:
“Turning to international courts may prove to be the only available option for states that are at loggerheads with more powerful states, that they cannot fight by military means, and thus turn to ‘lawfare’ as the means of last resort. Ultimately, moving the battlefield to the courtrooms of international courts is not a bad development in itself, as this avenue is not only useful for advancing the field of international law, but may also serve for the good of international diplomacy and international conflict resolution.”
The underlying benefits of lawfare, a shift from physical confrontation to legal confrontation, while unable to drastically shift the bounds of conventional deployments, can enable the process towards diplomatic resolution.
Russian and Ukrainian Attitudes on International Law
In the post-Soviet sphere, the perceptions of international law and international legal institutions by states like Russia and Ukraine are more skeptical than the interpretations made via Western European or American counterparts. Shaped by Soviet stances on international law and the internal domestic politics from within each country, Russian and Ukrainian attitudes are distinct, and they play a role in how lawfare and the decisions of an international legal body are understood. For Mälksoo, Russian perceptions are rooted in a unique historical, political, and religious identity. This identity can be traced to the Byzantine civilizational origins that elements of modern Russian political society harken back to in their writings and theses. He writes that:
“In particular, Moscow is not seen as a guardian of international law but still a derzhava (great power) with imperialist reflexes that is inclined to use international law in a primarily instrumental way…The real foundation of Russia’s current concept of international law has become the idea of the ‘Russian World’, russkyi mir, a civilizational idea.”
Through this lens, the significance of Kiev and Ukraine as the cradles of the Russian people and the birthplace of this civilizational dialogue, translates into a Russian perception that Ukraine is within the Russkyi Mir, that it is an inextricable component of the Russian identity. As such, international law is superseded by the elements of the Russkyi Mir; international law is flexible if ‘vassals’ within Moscow’s sphere threaten to exit this cultural and fraternal orbit. Georgia’s shift towards NATO in 2008 and Ukraine’s potential shift towards the European Union in 2014 were perceived as threats to this sphere and so action was necessary and justified.
Unlike their slavophilic neighbors, Ukrainian attitudes towards international law were originally split between Russian and Western approaches. However, Euromaidan and Russian actions in Crimea and eastern Ukraine has pushed the Ukrainian legal community further towards Western interpretations. This has seen a degree of revisionism as Ukraine tries to show its European roots as it stands opposite Russian aggression. Upon interviewing members of Russian, Ukrainian, and Georgian legal circles to determine if post-Soviet states “speak” international law differently, Wittke argues that:
“Pointing to Russian legal exceptionalism, Ukrainian lawyer and non-lawyer communicators of international law see themselves as a vanguard challenging and defending the regional and international legal and political order against Russian violations.”
This belief that Ukrainian communicators of international law are a “vanguard” is part of their strategy to associate their legal tradition with European ideals and, “in which Ukraine’s involvement in international law began during the Soviet Union and outlasted it”. However, as Wittke notes, this phenomena of Ukrainian legalese as a continuation of European traditions are connected to the recent shift in domestic politics following the ousting of Yanukovych and the onset of the current Russo-Ukrainian rivalry. She argues that it is this shift that explains Ukrainian decisions to sue Russia in international courts and pursue a lawfare litigation effort.
The differing interpretations of international law between Russia and Ukraine provide a backdrop from which to view present and future litigation between the two states. Ukraine’s lawfare litigation is in keeping with Dunlap’s opinion that it is an “ideologically neutral” policy tool. Russia would not view lawfare as an offensive tool as the overarching Russkyi Mir ideology overlooks legal means; instead, violators or shifts from the sphere necessitates immediate military intervention to freeze a state’s escape.
Ukraine v. Russian Federation: Application and Provisional Measures
In Ukraine’s 2017 application to the ICJ that extended incidents on the battlefield to the courtroom, Ukraine alleges multiple violations under both the ICSFT and CERD. For the ICSFT, Ukraine presented five claims to argue that Russia was a sponsor of terrorism in Ukraine:
- “The Russian Federation, acting through its organs, agents, persons, and entities, has pursued a campaign to finance terrorist violence in Ukraine through the provision of weapons, funds, and training to illegal armed groups.”
- The shooting down of Malaysian Airlines Flight MH17 was an act of terrorism that required Russian supplied weapons, thus implicating Russian support of the terrorist act.
- Indiscriminate shelling by heavy weapons of civilian areas with said weapons having been supplied by Russia.
- Bombings carried out in Ukrainian cities with bomb materials having originated in Russia.
- Russian failure to cooperate with Ukraine in the prevention or investigation of the financing of terrorism.
With regards to violations of CERD in Crimea, Ukraine presented arguments detailing alleged racial discrimination against both ethnic Crimean Tatars and Ukrainians. For the CERD, Ukraine presented three overarching claims to argue that Russia was actively discriminating and engaging in cultural erasure in Crimea:
- Russia’s referendum on Crimean accession was held during a campaign of discrimination.
- Russia has discriminated against Crimean Tatars through political and cultural suppression, the suppression of cultural gatherings, state backed disappearances and murders, arbitrary searches and detentions, harassment of Tatar media, and the suppression of the Tatar language.
- Russia has discriminated against Ukrainians in Crimea through the suppression of the Ukrainian language, culturally significant gatherings, and the harassment and restriction of Ukrainian media.
As the allegations were taking place against the backdrop of ongoing events with relation to the case (War in Donbas and Crimean status), Ukraine sought provisional measures against Russia in 2017. Ultimately, the court did not rule in favor of the provisional measures sought by Ukraine with regards to Article 18 of the ICSFT but did rule in favor of the provisional measures put forth under the auspices of Article 2 and 5 of CERD. By thirteen votes to three, the court indicated that Russia must refrain from “maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis”, and by a unanimous decision, indicated that Russia must ensure the availability of Ukrainian language education in Crimea. The ruling on provisional measures appeared to be a bad omen for Ukraine’s lawfare strategy as the ICSFT portion of the suit was addressed as having, “not put before the Court evidence which affords a sufficient basis to find it plausible that these elements are present”. Russia’s defense would rely heavily on this 2017 order in their presenting of preliminary objections before the court in 2019 as they sought to object to the courts jurisdiction in matters related to ICSFT.
Ukraine v. Russian Federation: Preliminary Objections and Court Ruling
As noted earlier, Russia’s defense strategy going into the litigation would seek to replicate the Georgia v. Russian Federation (2008) by having the entire case dismissed on jurisdictional grounds. As Dmitry Lobach, one of the agents for Russia and member of Russia’s Ministry of Foreign Affairs, argued in his opening statement during the public hearing on preliminary objections:
“It is obvious why Ukraine has focused on these conventions. They contain compromissory clauses pursuant to which Russia has consented to submit disputes to the Court, but only those which genuinely concern terrorism financing or racial discrimination. Ukraine, however, is seeking to use the ICSFT and CERD ‘as a device to bring a wider set of issues before the Court’”.
Using a quote from the dissenting opinion of Judge Crawford in Marshall Islands v. United Kingdom, Lobach is arguing that the court will lack ratione materiae as Ukraine has brought the overarching Russo-Ukrainian frozen conflict into the court room. The Russian defense also cited a ruling of the Court with regards to Legality of Use of Force (Yugoslavia v. Belgium) as Wordsworth argued that in testing the ruling in that case to Ukraine v. Russian Federation:
“it is not enough for a claimant to label the conduct of a respondent State as genocide or financing of terrorism or whatever it may be, by reference to some threat or use of force, and then say that jurisdiction is thus established”.
Russia’s defense for the alleged violations of ICSFT centered on the 2017 Order of the Court with Lobach, Wordsworth, and Zimmerman arguing that with the Ukrainian evidence the same as in 2017, ratione materiae of the Court was not plausible. An additional over-arching argument presented by the Russian defense was that the ICSFT “does not cover issues of State responsibility for financing acts of terrorism” and that their interpretation of Article 2, paragraph 1 of ICSFT should be read as meaning “‘Private persons only’ and does not cover State officials”.
On CERD, Russian preliminary objections followed similar overarching trends as their strategy for ICSFT. Like with the ICSFT and the War in the Donbas, Russia’s defense argued that Ukraine was interested in the status of Crimea and that the allegations under CERD were but a veil. As such, Russia argued that this would call into question the jurisdiction of the court if the claim in litigation was the status of Crimea. The other objection presented by Russia with the application of CERD dealt with whether negotiations had been fully exhausted prior to Ukraine’s application.
The judgement presented by the Court rejected all objections presented by Russia with regards to both the ICSFT and CERD. As such, Ukraine v. Russian Federation will be heard completely through merits; an initial victory for Ukraine’s lawfare strategy. While the ICSFT portion may prove challenging based on merits, the Court did rule that contrary to Russia’s interpretation of Article 2, paragraph 1:
“The Convention contains no exclusion of any category or persons. It applies both to persons who are acting in a private capacity and to those who are State agents…all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person.”
While the Court did acknowledge that state financing said acts of terrorism is still beyond the scope of the ICSFT, this ruling by the court does provide an opportunity for Ukraine to target State agents who are perpetuating terrorist financing. The rulings on CERD objections found that Ukraine had exhausted negotiations with Russia and that the Court had jurisdiction over the claims.
Ukraine v. Russian Federation’s Impact on Lawfare:
The judgment of the Court on Russia’s preliminary objections was a victory for both Ukraine and the application of lawfare. Unlike their Georgian predecessors, Ukraine was able to circumvent the Russian strategy of having the case dismissed on grounds that Ukrainian claims lacked ratione materiae or that bilateral negotiations to resolve the disputes were not adequately exhausted by Ukraine. As Marchuk writes,
“The case demonstrates that the strategy of ‘defensive lawfare’ pursued by Ukraine against Russia in various international courts, including inter-state arbitration proceedings, is starting to bear fruit…the case may contribute to advancing international law more generally by clarifying the scope of States Parties’ obligations under CERD and the ICSFT.”
Marchuk highlights the importance of the ruling of the Court on the definition of ICSFT Article 2, paragraph 1, and the decision by the Court to hear both the ICSFT and CERD claims on merit. She noted that Ukraine had a better chance winning litigation on merits for CERD rather than ICSFT due to the challenge posed in proving mens rea with regards to terrorism financing. In addition, Marchuk cites the dissenting opinion of Judge Xue, who wrote that the Court could not have jurisdiction over the ICSFT claims as each claim presented by Ukraine was in some way pointed at Russia, thus not being within the scope of the Convention. Even with the challenges presented in the future of the case, the purpose of Ukraine’s lawfare strategy is not necessarily to completely reverse Russian positions on the ground but to de-legitimize dependencies and to strengthen Ukraine’s position in the scope of foreign policy interests. By surviving the preliminary objections presented by Russia, Ukraine has achieved this strengthening of foreign policy raison d’état.
The difficulty of resolving frozen conflicts is that for each military or diplomatic escalation by the smaller power to rid their sovereign territory of a larger power’s dependency, the larger power can quietly and quickly re-balance towards stagnation. Ukraine’s litigation at the ICJ is part of a broader disaggregated legal strategy to de-legitimize these dependencies through international legal means. The success in the preliminary objections phase is also a success for the field of lawfare in terms of litigation applicability. While a final verdict in Ukraine v. Russian Federation may not come for many years, the precedent established in the judgment on the preliminary objections opens the door for other smaller states afflicted by frozen conflict to have a legal arena from which to expand their theatre of war.
On a regional level, this case exemplifies a divergence in legal perceptions between post-Soviet states and that influence on their application of lawfare. For Russia and it is “Russkyi Mir”, lawfare is to be applied as a jus ad bellum that is but an extension of “New Generation Warfare”. This statist lawfare is to be used as an irredentist foreign policy tool within the Russian sphere to combat Western encroachments on their unique sense of purpose. In contrast, Ukraine has applied lawfare in a defensive posture, a counterattack to Russian hybrid war on the ground by utilizing Western legal institutions. While once aligned with Russian/Soviet perceptions of international law, the application of lawfare has shifted Ukraine into Western influences and began the liberal vanguardism that Ukrainian international lawyers now bring to their work. Even if Ukraine’s lawfare strategy were to fail in a final judgment by the Court, the breakthroughs at the ICJ and their influences on Ukrainian perceptions of international law have already been altered.
As hybrid warfare becomes the normative means of contemporary conflict, the study of lawfare and the usage of international courts as extensions of battlefields may increase. The increasing politicization and importance of international courts to resolve these disputes will make lawfare enter the mainstream as a tool for policy makers. Ukraine v. Russian Federation will further the study of lawfare and how it interacts with the international legal community. Understanding both the benefits and limitations of such a litigation strategy will allow future determination of when to apply lawfare and under what form (offensive or defensive) it should take.
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