On February 24, Russia launched a full-scale war against Ukraine under the pretenses of “demilitarization” and “denazification” of the country. Legal scholar and professor at the Free University Ekaterina Mishina analyzes the legal aspects of the war and looks at the cultural ramifications of the actions of the Russian Federation, which, by President Putin’s will, has turned from a victor nation into an aggressor nation.
March 1, 2022: Kharkiv regional administration building after it was shelled by the Russian military. Photo: Pavel Dorogov | AP
I am a daughter of a World War II veteran. In the summer of 1941, as soon as he turned 17, my father left for the war as a volunteer. He was still 17 when he lost an arm in the Battle of Moscow. He barely spoke about the war—unless it was in terms of “God save us from this ever happening again.” Therefore, from early childhood, I knew that war is the most terrible thing that could ever happen. And then it did happen, on February 24, 2022.
Three days before that, on February 21, Russia signed international treaties on friendship, cooperation and mutual assistance with the self-proclaimed Donetsk and Luhansk People’s Republics. The next day, the treaties were ratified, and, according to identical Articles 28 of both treaties, came into effect on February 25—the day when ratifying charters were exchanged by the sides. Hence, on February 24, on that terrifying day when the Russian president delivered an address to the nation and announced the beginning of actions that he called “self-defense from the threats that are being created against us, and from even bigger calamity than the one taking place today,” these treaties had not yet taken effect.
The possibility of provisional application of the international treaties between the Russian Federation and the DPR and LPR is not provided for in the text of either treaty. Article 23, Part 1 of the Federal Law “On International Treaties of the Russian Federation” from July 15, 1995, No. 101-FZ, states that an international treaty or part thereof, before going into effect, may be provisionally applied by the Russian Federation, if this is provided for by the treaty, or if this was otherwise agreed upon by the parties which signed the treaty; it virtually replicates the provision of Article 25, Part 1 of the 1969 Vienna Convention on the Law of Treaties, which is one of the key sources for the law on international agreements.
If the parties had agreed on provisional application, the treaties between Russia and the DPR and LPR would have had to be officially published immediately. According to Article 30, Part 2.1 of the Federal Law “On International Treaties of the Russian Federation,” an international agreement that provides for the treaty’s provisional application, fully or partially, before it goes into effect, or a different agreement on the provisional application of a treaty or part thereof (except for inter-agency treaties), must be immediately published by request of the Ministry of Foreign Affairs in the International Treaty Bulletin and posted on pravo.gov.ru, an official legal information internet portal. This requirement was added to the text of the federal law in December of 2012 to develop the legal position established in Russia’s Constitutional Court Resolution No. 8 of March 27, 2012, [1] according to which the rules (norms) of provisionally applied international treaties of the Russian Federation affecting human and civil rights and freedoms, as well as normative legal acts addressing human and civil rights, freedoms, and responsibilities that are published in Russia, shall be applied only after they are officially published. This legal position, like other decisions of the Constitutional Court, is universally binding for all organs of power, organizations, and citizens on the territory of the Russian Federation, as established by Article 6 of the 1994 Federal Constitutional Law “On the Constitutional Law of the Russian Federation.”
The numbers of the documents and the date when both treaties were published—February 28, 2022—are indicated next to links to the texts of the treaties between Russia and the DPR and LPR on pravo.gov.ru. Hence, on February 24, Russia’s treaties with the self-proclaimed republics had not gone into effect for the Russian Federation and had not been applied provisionally.
And now let’s take a good look at the text of the Russian president’s national address on February 24: “In accordance with Article 51, Part 7 of the UN Charter, by the sanction of Russia’s Federation Council, and to implement the treaties on friendship and mutual assistance with the Donetsk People’s Republic and Luhansk People’s Republic ratified by the Federal Assembly on February 22 of this year, I have made the decision to conduct a special military operation.” Here is the text of the article Vladimir Putin refers to: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
An analysis of this article’s text makes it clear that using it as a legal basis to launch military action in Ukraine is entirely wrong and impossible. On the other hand, Article 2, Part 4 of the UN Charter was violated in the most outrageous way: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
The norms of a number of UN declarations were violated as well. The Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (December 21, 1965) states that full observance of the principle of nonintervention by states in the internal and external affairs of other states is essential to the fulfillment of the purposes and principles of the United Nations. Direct intervention, subversion, and all forms of indirect intervention contradict these principles and, consequently, constitute a violation of the Charter of the United Nations. The Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (December 9, 1981) establishes that no state or group of states has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other states. According to this declaration, the principle of noninterference in states’ internal affairs includes, among other things, the state’s sovereign and inalienable right to determine its own political system. Article 2-II (j) provisions the duty of a state to “abstain from any defamatory campaign, vilification or hostile propaganda for the purpose of intervening or interfering in the internal affairs of others.”
Russian legislation (Article 353 of the Criminal Code) establishes criminal liability for the planning, preparation, and launching of an aggressive war (punishable by seven to fifteen years in prison), and for the waging of an aggressive war (ten to twenty years in prison). Public incitements to launch an aggressive war, including those made with the use of mass media or by an individual acting in the capacity of a state official of the Russian Federation, or a state official of a subject of the Russian Federation, are also criminally punishable in accordance with Article 354 of the Criminal Code.
Today, however, the Russian law enforcement agencies remain silent. International courts are speaking up, though: on February 28, chief prosecutor of the International Criminal Court Karim Ahmad Khan stated that his office is opening an investigation into the events in Ukraine.
Those are the legal aspects of the ongoing events as of today. Here are some broader cultural ones. Over the past decade, Russia’s leadership has been maniacally focused on the country’s victory in the Great Patriotic War, turning the Great Victory into a cult, entrenching in the Constitution the impermissibility of understating the people’s heroic deed, as well as the responsibility to honor the memory of the defenders of the Fatherland and protect the historical truth. Criminal liability has been introduced for distorting the historical truth about the actions of the Soviet Union in WWII, i.e., the official version of these actions, as well as distributing deliberately false information about veterans of the Great Patriotic War.
On February 24, by the president’s sleight of hand, the victor nation fully established itself as an aggressor nation. The 1941 song “Holy War” (Svyaschennaya Voina), which became the hymn of the defense of the Fatherland at the time, sounds like a mockery today, since the war that the Russian Federation wages today without even calling it a war, but using euphemisms such as “special military operation” and “self-defense,” is directed against the people and is sacrilege.
History repeats itself in terrifying ways. A hundred years have passed, and once again the nation is led by a balding man named Vladimir; once again it follows a policy of seeking enemies, both internal and external. Once again we don’t call things by their real names, and clear definitions are replaced by vague euphemisms. The global revolution that the Bolsheviks strived for turned into the Soviet invasion of Poland, then Finland, then into the occupation of the Baltics. Now, it is the war with Ukraine—a destructive, monstrous war that benefits no one. The Kremlin’s tales about the demilitarization and denazification of Ukraine are meant for the ignorant. The war is terrible for Ukraine, but Ukraine, which had its Revolution of Dignity in 2014, now fights a war of dignity and resists Russia’s aggression. Russia, on the other hand, will not only suffer from sanctions and multiple other consequences of war, but also monumental reputational risks.
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[1] See paragraph 4.2 of the statement of reasons in the March 27, 2021 provision No. 8.
Text translation: Elizaveta Agarkova.
