Proposals for Countering Russian Aggression Against Ukraine - Legal Aspects

Proposals for Countering Russian Aggression Against Ukraine - Legal Aspects

Bohdan Ustymenko offers part 2 of his Ukrainian strategy on Crimea:

Concept of Proposals for Countering Russian Aggression Against Ukraine - Legal Aspects (pdf)

According to UN General Assembly Resolution 3314 (XXIX) on “Acts of Aggression,” acts of aggression include inter alia, any military occupation or annexation, the blockade of ports or coasts of a state by the armed forces of another state and the sending by, or on behalf of, a state of  armed bands, groups, irregulars or mercenaries who perform acts of armed force against another state or are substantially involved in such  acts.

The Resolution also defines aggressive war as a crime against international peace that entails international responsibility.

It is an established fact that Russia has been militarily occupying Ukraine’s Crimea peninsula since February 20 2014.

Also, as a result of further Russian aggression, namely the occupation of Ukrainian territories in the Luhansk and Donetsk oblasts over the past six years thousands of Ukrainians both civilians and military personnel have been killed in eastern Ukraine.

Given this situation, I present for consideration the following conceptual proposals:


Launch a comprehensive claim for monetary compensation from the government of the Russian Federation for seized Ukrainian state property

Over the next five to ten years, Ukrainian state owned companies and agencies can inflict a powerful economic blow to Russia by recovering hundreds of billions of dollars from the Russian government through a market value based compensation (including interest) for Crimean property that was seized on the basis of:

  • The still valid agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation On the Promotion and Mutual Protection of Investments from November 27 1998;
  • The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on June 10 1958 Both Ukraine and Russia are parties to the Convention together with approximately 140 other signatory states;
  • Successful recent precedents such as the lawsuits against Russia already won through international arbitration by the Ukrainian state-owned Oshchadbank. Ukrnafta and Privat Group, that would include claims filed on behalf of individuals.

Ukrainian state owned companies and agencies have the right to receive monetary compensation for assets (or the rights to them) located on the Russian-seized Crimean peninsula These include sea trade and fishing ports, sea vessel s airports, railways, roads, other state infrastructure, state enterprise complexes thousands of other properties and natural resources.

Compensation can be collected on the basis of the above mentioned international legal mechanisms by seizing Russian movable and immovable property abroad After the de-occupation of the Crimean peninsula, all of the property will be physically returned to Ukrainian state owned companies.

Given the sheer number of monetary claims against the Russian Federation by Ukrainian state-owned companies whose property was seized and the accompanying huge volume of documents required for any arbitration proceedings, it would make sense to hold consultations with the Permanent Court of Arbitration (The Hague, Netherlands) regarding the feasibility of organizing specialized workshops, seminars, conferences and courses for the Ukrainian lawyers and to open an operational branch of the Court in Kyiv.

This would not be unprecedented: as of 2020 the Permanent Court of Arbitration has offices in Singapore, Mauritius and Buenos Aires.

In addition to top Western legal firms, it would be important to involve a number of talented Ukrainian lawyers in this effort This would help groom a completely new generation of world-class Ukrainian international law professionals who will serve as Ukraine’s legal ‘foot soldiers’ for years to come.


Adopt a Ukrainian Law "On Treason"

Since the war with Russian began in 2014, allegedly thousands of Ukrainian citizens - military, law enforcement officers, civil servants, etc., - have defected, or engaged in espionage and assisted the aggressor in subversive activities against Ukraine.

Yet according to a June 2020 study by the Bureau of Judicial Information (a special project of the "Center for Journalistic Investigations” Information Agency), between 2014-2019 only 20 Ukrainian citizens have been convicted of high treason, while criminal proceedings against a further 77 were dropped.

The obvious current inability of the judicial/law enforcement system to convict thousands of individuals guilty of treason demonstrates the need for significant legislative changes, including the adoption of a law on treason that would, among other things, create a special unit dealing exclusively with individuals accused of treason.

The unit’s domestic and foreign legal activity could be financed through sizable reductions in personnel at the Security Service of Ukraine and the prosecutor’s offices – entities that between 2014-2020 have proven unable to fulfill their mandate.


Intensify cooperation with INTERPOL

According to Article 3 of the INTERPOL Statute, the organization is prohibited from interfering or engaging in any activity of a political, military, religious or racial nature.

At the same time, there are no legal obstacles to INTERPOL searching for - and Ukraine prosecuting - owners and managers of Russian and other foreign companies actively engaged in illegal economic activities in Crimea and/or the territorial sea and exclusive maritime economic zone of Ukraine.


Activate Paragraph 6 of the Budapest Memorandum

The signing of the so-called Minsk Agreements were a result of direct threats and blackmail by Russia. Therefore, they do not meet the international treaties criteria clearly defined by the 1969 Vienna Convention on the Law of Treaties and are therefore null and void. The ultimate goal of the Minsk Agreements for the Russian Federation is to amend the Constitution of Ukraine and transform Ukraine from a unitary state into a federal one - with the subsequent formation of Russia’s much coveted “Novorossia.” At the same time, Ukraine has the right to apply Paragraph 6 of the legally sound Budapest Memorandum in order to create an international platform for discussing the de-occupation of Ukrainian territories.


Adopt a Legal Protection Strategy 

It is crucial to develop and adopt by the end of 2020 a very practical and clear strategy for the legal defense through international institutions of the rights - including property - and interests of the Ukrainian state, its citizens and all legal entities that have been violated by Russia.

The strategy should contain specific timelines for a systematic implementation and clearly identify the authorities and officials responsible for this.

Ukrainian and foreign experts should conduct an audit of all the cases against Russia initiated by the state of Ukraine and its legal entities that are being heard by arbitration tribunals, the International Court of Justice, the European Court of Human Rights and other international institutions.

In addition, Ukraine needs to seriously consider the possible need for the UN General Assembly to request the International Court of Justice to issue an Advisory Opinion on a number of issues relating to the ongoing occupation of Ukraine and other acts of Russian aggression against Ukraine.

For related material see the author’s “Black Sea Security: 5 Ukrainian Legal Steps

Read the proposals in Ukrainian on