Russia's Armed Aggression Against Ukraine: Positioning of the Parties
Under present conditions the highest immediate threat to the national security of Ukraine is the armed aggression of Russia, which has been ongoing since February 20, 2014. It resulted in the unlawful annexation of the Autonomous Republic of Crimea and Sevastopol city, temporary occupation of a number of rayons (counties) of Ukraine in Donetsk and Luhansk oblasts (provinces), tens of thousands killed and mutilated among the civilian population and military personnel of Ukraine, hardships for more than 1.5 million internally displaced people, plunder and deliberate destruction of government and private property of citizens and legal entities, criminal destruction of infrastructure and the environment in the annexed and occupied territories of Ukraine, as well as war crimes and crimes against humanity against civilians and military personnel of Ukraine committed by the Armed Forces and occupational administration of the Russian Federation
In terms of international law, the armed aggression of the Russian Federation will be ongoing as long as the territories of Ukraine are controlled by the aggressor state and until the territorial integrity of Ukraine is restored.
Having unleashed armed aggression against Ukraine, the Russian Federation committed a grave international crime that entails its international legal responsibility. The Russian Federation is thus obliged to restore the pre-existing legal order, by cease its war activities, return without any conditions the annexed and occupied territories to Ukraine, compensate for the damage and/or losses caused to the Ukrainian state, Ukrainian citizens and legal entities, and to punish the persons guilty of war crimes and crimes against humanity.
The armed Ukrainian-Russian confrontation, as a consequence of Russian aggression, is an international, not internal, conflict. As the aggressor state, Russia may not claim to be a peacemaker, mediator, or guarantor in a settlement to the conflict.
In the attempt to avoid international legal responsibility, the leadership of the Russian Federation groundlessly considers the annexation of Crimea as a legitimate act and cynically denies the participation of its Armed Forces in the seizure of Crimea and the ongoing armed aggression in the east of Ukraine.
At the same time, the representatives of the Russian Federation signed the Minsk arrangements and are attempting to exploit their provisions as an instrument for imposing on Ukraine terms of a settlement that are contrary to universally accepted rules of international law, not compatible with the Constitution of Ukraine, and that are detrimental to the unity and independent statehood of Ukraine and, its chosen course of civilizational development.
Trying to stop the escalation of Russian aggression, the Ukrainian leadership was compelled to sign the first Minsk Arrangements in September 2014. However, Russia did not fulfill its commitments. Not only did Russia fail to withdraw its armed forces from Ukrainian territory, but also extended the war, and then in February 2015 imposed on Ukraine even more draconian terms for a settlement. Russia decided to sign the Minsk Arrangements as its leadership expected a lifting or at least an easing of sanctions by the international community and also anticipated the selective implementation only of their certain provisions that would benefit the Russian side alone.
After more than five years of war, Russia not only failed to fulfill any of its obligations under the Minsk Agreements, but has repeatedly and grossly violated their provisions. In the meantime, the leadership of the Russian Federation is demanding that Ukraine hold elections in the occupied territories and create a special status for Donetsk and Luhansk oblasts.
In terms of international law, the Minsk Arrangements have been nil and void since the moment of their signing, as they were imposed on Ukraine by force. Nor are they valid under the Ukrainian Constitution since they were not submitted to and ratified by the Verkhovna Rada of Ukraine.
Ukraine could have withdrawn from the Minsk Arrangements due to unceasing and systematic breaches of their provisions by Russia and because they were not implemented by December 31, 2015, deadline.
In the pursuit of peace, as early as September 16, 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine No.1680-VIII "On the Special Procedure of Local Self-Governance in Some Districts of Donetsk and Luhansk regions." The final provisions of the law stipulate that it would come into force only after all Russian armed forces are withdrawn, and new local governments are freely elected according to the OSCE standards. Even though Russia refused to withdraw its military forces from the territory of Donetsk and Luhansk, the law was extended from year to year. The law remains in effect until December 31, 2019, but still cannot be applied, because of ongoing Russian aggression.
Thus, as a consequence of the Russian Federation's position, the Minsk Arrangements were stillborn in a legal sense and also became useless as an instrument for a political settlement.
In the period following the adoption of the Minsk Arrangements, Ukraine undertook a policy of successfully implementing government decentralization reforms. Several essential legislative acts in this regard, rendered irrelevant the implementation of Paragraph 11 of the Package of Measures for the Implementation of the Minsk Arrangements sighed on 12 February 2015 that called for establishing a special status for specific districts of Donetsk and Luhansk oblasts.
Even if the Minsk Arrangements could in some way be applied in the pursuit of peace they could only be employed on the condition that their interpretation and application comply with the rules of contemporary international law, the Constitution and laws of Ukraine, including laws on government decentralization and reformatting local self-governance structures. The security provisions of the Minsk Arrangements could be an instrument leading to a settlement. However they would have to be implemented in accordance with generally accepted principles of international law and justice, but not whimsical demands of the aggressor.