Did Russia violate International Law? Part III

A Draft Paper Contributing to the Present Debate

Protesters throw Molotov cocktails at Ukrainian troops during the Maidan protests on January 19, 2014, three days before the overthrow of the Government (Photo: Detail of photo by Mstyslav Chernov / Wikimedia Commons, but with no suggestion of endorsement).

8. Coup d'état and International Law

In the Ukrainian presidential elections of 1994, 1999, 2004 and 2010, the choice was between the West-Ukrainian candidate and the East-Ukrainian candidate, and it was the candidate from East who won except in 2004 when Viktor Yushchenko defeated Viktor Yanukovych. Or rather Yanukovych, the Russian-speaking candidate from Donetsk, had won the November election by three percent. This was the start of massive demonstrations (“the Orange Revolution”), and the election was declared invalid shortly afterwards. The OSCE said that the election “did not meet international standards”, and the U.S. leading election observer, Senator Richard Lugar, spoke of “election fraud”. “The Orange Revolution” in support of Viktor Yushchenko continued, and a new election was organized in December with Yushchenko as the winner with close to eight percent. However, Western countries were deeply involved in the “Orange Revolution”, and it is difficult to say whether one election or the other was the fair one, but one could say that the candidate from the east and the candidate from the west were fairly even. In the 2010 election, Viktor Yanukovych won a majority. According to the OSCE, there had been no irregularities. Western Ukraine voted for Yulia Tymoshenko, while Yanukovych won in Eastern Ukraine. Due to the large population in the east, he won the elections in Ukraine by 49 to 45 percent. Yushchenko was eliminated in the first round with only 5 percent of the votes.

For the extreme nationalists in Western Ukraine, Yanukovych’s victory had to be stopped at all costs. Yushchenko had ties to the extreme right, and he had named the nationalists Stepan Bandera and Roman Shukhevych “Heroes of Ukraine” and their monuments were raised all over Western Ukraine. Bandera’s organization OUN (Organization Ukrainian Nationalists) had collaborated closely with the Nazis during World War II and his groups were responsible for massacres of a hundred thousand of Jews, Poles, and Russians. Shukhevych commanded the Nachtigall Battalion, served in German uniform under Heinrich Himmler’s Higher SS and commanded OUN’s military wing UPA. They wanted to “Ukrainify” Ukraine and “millions of victims have to be sacrificed in order to realize it”, to quote Bandera. These organizations were typical examples of the European Fascism of the 1930s and the 1940s. Many of his people were directly involved in the mass murder in collaboration with the German Nazi forces. This does not mean that Ukraine of today is a Fascist state, but it is still problematic that the Fascists leaders of the 1930s and 1940s are now made into the official heroes of Ukraine. Ukraine’s Chief of Defense, General Valerii Zaluzhnyi, made a selfie of himself in front of a portrait of Stepan Bandera, which the Ukraine Parliament published on its Twitter page on 1 January 2023, on the birthday of Bandera. This tweet was removed shortly afterwards after request from Poland.

Yushchenko’s former prime minister Yulia Tymoshenko had also ties to the extreme right, and from late 2013, mass demonstrations were mobilized in the Tymoshenko-dominated areas (see below) by the losing side in the 2010 elections. From February 2014, these demonstrations became increasingly violent. They were now led by the extreme nationalists, and on February 22 they forced President Yanukovych to flee the country. More than 50 people were shot and practically all the shots originated from two buildings controlled by the extreme nationalists, by Right Sector and Svoboda. These buildings were located behind the demonstrators and the anti-Government demonstrators were shot in the back, which could be seen on video films (see also Katchanovski 2021). Both the demonstrators and the police were shot by the same force, by the same bullets, Estonian Foreign Minister Umas Paet told EU High Representative for Foreign Affairs and Security Policy, Catherine Ashton in a recorded phone conversation. The demonstrators were not shot by the state police forces in front of them. This was a violent coup d’état and a seizure of power that in every respect violated the Ukraine’s constitution. The nationalist leaders appointed a new government after instructions from the United States. The economist Arseniy Yatsenyuk was appointed prime minister after Victoria Nuland had given the U.S. Ambassador to Kyiv, Geoffrey Pyatt, clear instructions: Yatsenyuk should lead the new government. A phone call, in which Nuland instructed Pyatt, was recorded and published on YouTube. Everything is there: who should and who should not go into the Government, and who Yatsenyuk should talk to “four times a week”. George Friedman, Chief Intelligence Officer for Stratfor in the U.S., described in December 2014 the U.S. seizure of power in Ukraine a few months earlier as “the Most Blatant Coup in the History of Mankind”.

On 4 February 2015, Friedman spoke for the Chicago Council on Global Affairs, and said that “ten days ago General [Ben] Hodges, Commander of US Army Europe, visited Ukraine. He announced that US trainers unofficially be coming. He actually put medals on Ukrainian fighters […] showing that this was his army.” The U.S. took responsibility for the Ukraine army. There was a U.S. coup d’état, and it was definitely a violation of international law. An elected president was violently ousted, and a new government was installed at the direction of a foreign power, but the U.S. could veto any criticism in the Security Council. The new government received four ministers from the former Nazi-party, Svoboda. The language reform of the nationalists triggered major counter-demonstrations and uprisings in the Russian-speaking Eastern Ukraine. The demonstrations in Odessa and Kharkov and other oblasts were suppressed, while the republic of Crimea and the oblasts of Donetsk and Lugansk declared independence. 8,000 men from the Ukrainian army defected to the rebels in Donetsk and Lugansk. The Kyiv regime was forced to employ more or less pro-Nazi groups such as the Azov Battalion, Aidar and the Right Sector (which uses Bandera's flag and Nazi symbols from the 1940s) to continue to run the war against Donetsk and Lugansk. Jacques Baud (2022) says that 20,000 of 22,000 Ukrainian soldiers in Crimea defected to the rebels. In the referendum in Crimea, in support of independence and then for joining Russia was 96.8 % (with 83% turnout). This corresponds fairly well to a referendum in 1991, before Ukraine became an independent state, which showed that 93.6 % of Crimea’s inhabitants would prefer to belong to Russia (Baud 2022). After the West-Ukrainian regime’s attacks on Russians and Russian-speakers in the East in 2014, this percentage was for natural reasons even higher. 

Left: Language spoken at home in 2009. In yellow areas, one was primarily speaking Ukraine, in red areas primarily Russian and in orange areas Surzhyk (a mixture of Russian and Ukraine). Other colors show minority languages. Right: Orange areas show where Yulia Tymoshenko was winning the Presidential Election in 2010, while Viktor Yanukovych was winning in the blue areas. This divide correspond almost exactly to the language divide. The darker colors show an overwhelming victory for each candidate. The striped areas show the areas of mass protest and areas where government buildings had been seized in 2013-14 during the Maidan events. The protests took place almost exclusively in the areas of the losing side in the elections (images from Matlock 2021).

If we look at the language people used in their homes in 2009 (Matlock 2021), we find that in West-Ukraine oblasts with 8 million inhabitants, people spoke primarily Ukrainian. In Ukraine’s eastern and southern oblasts with 19 million inhabitants, most people spoke Russian, while in central Ukraine, with around 12 million inhabitants, the majority spoke a “mixture” of Russian and Ukrainian: Surzhyk. Compared to those who spoke Ukrainian, the Russian-speakers were no small minority, and the division into language groups corresponded exactly to the political division between the West-Ukrainian and East-Ukrainian candidates. As early as in 2008, the US Ambassador to Moscow, current CIA Director William Burns, wrote to the State Department that a conflict between Ukrainian and Russian speakers could lead to a civil war that drags Russia into the war. When the new coup regime in 2014 first demanded everyone to speak Ukrainian in public, it led to confrontation in this already divided country. It led to a civil war that forced a large population to flee from Donbass to Russia. Russian-speaking Ukraine was weakened, and it came to change the balance in the elections in favor of Western Ukraine. Viktor Yanukovych had, with the support of the Russian-speaking Eastern Ukraine, won the 2010 elections. Given the ethnic cleansing that followed the 2014 war, it may no longer have been possible for Russian-speakers to win an election. And this cleansing had been carried out with the support of the United States.

After the first massacres in Donetsk and Lugansk in 2014, Ukraine had to sign a peace agreement between the parties: the Minsk Agreement, which was negotiated with the help of Germany and France. If Ukraine had not accepted this, it is possible that Russia might have deployed forces in Donetsk and Lugansk already in 2014 to protect the Russian-speaking population. However, President Vladimir Putin did not want to split Ukraine. In a letter to Putin, the two republics asked to be admitted to Russia, but that was rejected by Putin, Jacques Baud (2022) writes. Putin persuaded Donetsk and Lugansk to accept the Minsk Agreement, and from 2015, Minsk II became a legally recognized international agreement following a decision made by the UN Security Council. The agreement was supposed to be a guarantee for the Russian-speaking population in the east. They would thus be given a relative autonomous status with right to their own language in Ukraine. But it turned out that the nationalists of West-Ukraine would never accept this autonomy for Russian-speakers. It was unacceptable to them.

For the nationalist minority in Ukraine, such autonomy conflicted with their idea of a nation, a purely “Ukrainian Ukraine”. Oleksy Danilov, Secretary of Ukraine's National Security Council, told AP in January 2022 that “the fulfillment of the Minsk Agreement means the country’s destruction”. “Danilov warned the West against pressuring Ukraine into fulfilling the Minsk deal”, AP wrote. Kyiv had signed the Minsk Agreement. The sovereignty of Ukraine was therefore subordinate to the decisions of the Security Council. According to the UN Charter (Art. 25), any member of the UN must undertake to “implement Security Council resolutions”, but Kyiv had no intention of implementing this resolution, and Kyiv had the support of the United States, which could veto any attempt to use force against Ukraine despite the fact that the U.S. itself had signed the agreement. One would have thought that to keep the Minsk Agreement should have been a Ukrainian priority. It would have secured both Ukrainian territory and peace, but then you don’t realize that to the new Ukrainian elite the acceptance of the Minsk Agreement actually were seen as treason against a purely “Ukrainian Ukraine” and this elite also wanted a major war with Russia to drag NATO into the war in order to decouple Russia and to eliminate the Russian influence.

As of 2021, we learned that Kyiv had never intended to implement the Minsk Agreement. The Minsk Agreement would have made it impossible for the nationalists in the west to “Ukrainify Ukraine”. They still kept to the Bandera slogan “Ukraine for the Ukrainians”. The Minsk Agreement would make it impossible to purge the Russian-speaking East-Ukraine. In June 2022, former president Petro Poroshenko told Deutsche Welle that Ukraine had signed the Minsk Agreement just to buy time. “We won eight years” he said. He let the U.S. and Britain build up Ukraine militarily to give Kyiv the capacity to conquer, first Donetsk and Lugansk and then Crimea (Zelensky signed the decree to retake Crimea on March 25, 2021). But to recapture and “Ukrainify” Donbass would be a violation of the Minsk Agreement. It would have required the population to be replaced. It would be a violation of an international agreement signed by the UN Security Council. The coup d’état, the ethnic cleansing (by the U.S. and Ukrainian nationalists) and the negligence of the Security Council resolution must all be described as serious violations of international law and violations of the UN Charter.

The Security Council was paralyzed because the United States could use its veto. President Putin believed that the Minsk Agreement would be a sufficient guarantee for the Russians in the east and for the Russian-speakers, while Ukrainian and American officers, with US Army Brigadier General Joseph Hilbert, who referred to their Ukrainian counterparts while telling media on 4 May 2022: “The biggest mistake the Russians made was giving us eight years to prepare for [the war]”.  The Minsk Agreement – an international enforceable agreement – was signed by Ukraine in order to buy time, to have eight years of military buildup. And the longer the Russians waited to intervene, the harder it would be to guarantee the already agreed rights of Russian-speakers in accordance with the Minsk Agreement, and the stronger the U.S. military bridgehead would become in Ukraine. Vladimir Putin asked: How can one even trust an treaty signed by Ukraine and the United States in the future if they never intended to follow this agreement. In December 2022, former German Chancellor Angela Merkel and then-French President Francois Holland said that the Minsk Agreement gave Ukraine the opportunity “to buy time”. Their task seems to have been to deceive the Russians. This has now a direct bearing on the Russian perception of the war. Not even a written agreement with the West will be trusted. The Russians simply believe that they have to force the West into a military fait accompli.

On 10 November 2021, a partnership between the United States and Ukraine was established to allow for Ukrainian NATO membership. Moscow had been making clear since 2008 that Russia would face such a membership with war. The elite in Washington knew it. Moscow perceived such a partnership as an unbearable threat. The only reason for such a U.S. policy was that the U.S. wanted a war, as described in the RAND Report from January 2022. This US-Ukrainian policy is as far from the UN Charter’s primary ambition to “remove threats to the peace” and to “maintain international peace” as one can imagine.

Mikhail Gorbachev addressing the UN General Assembly 1988 (Photo: RIA Novosti Wikipedia).

9. Kosovo and the practice of International Law

The events in Donetsk and Lugansk have a relevant parallel in Kosovo in 1999. Media claimed that there had been a Serbian massacre of Albanians in the village of Račak in Kosovo, and already in 1998 several tens of thousands Albanians had fled Kosovo. This could, according to Western lawyers, justify a Western military intervention to eliminate the Serbian forces, and many subsequently described the attack on Serbia as an R2P operation. But no UN Security Council decision had ever been taken in support of this operation. And in order to make the Western intervention “legitimate” under international law, several Western states subsequently came to recognize Kosovo as an independent state.

On 17 February 2008, the Provisional Institutions in Kosovo declared independence from Serbia. In accordance with Article 96 in the UN Charter, UN General Assembly asked the International Court of Justice on 8 October 2008 the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law”. But the General Assembly did not ask if this “unilateral declaration of independence” was in accordance with domestic Serbian law. The International Court of Justice concluded in 2010 that “the declaration of independence of 17 February 2008 did not violate general international law”.

The “State of Kosovo” could then request military support and create a military base under US leadership to “ensure its independence”. One might argue that such a statement opened for a dubious interpretation of the UN Charter. But there had been a referendum in 1991 supporting independence for Kosovo and Kosovo representatives who were elected in 2007 supported independence. In May 2014, Donetsk og Lugansk voted for independence with 89 % support in Donetsk and with 96 % support in Lugansk. The minority that did not support independence was smaller than it had been in Kosovo. In February 2022, Russia used the same principles as had earlier been outlined for Kosovo. On 21 February 2022, Moscow recognized Donetsk and Lugansk as “independent states”, and on 24 February, Russia deployed forces to support and protect the “two new states”. Vladimir Putin referred to the UN Charter's Article 51 on the right to “collective self-defense”. This Russian argument may have been almost as dubious as the Western argument when it comes to Kosovo, but with the West’s 1999 war and with the recognition of the independence of Kosovo in 2008-2010, a precedent was now apparently established. Perhaps Vladimir Putin sought to point to the hypocrisy of the West when the U.S. used one argument for Kosovo and another for Donetsk and Lugansk. The Western countries had not condemned their own attack on Serbia in 1999, and their recognition of Kosovo should thus have allowed for similar recognition of Donetsk and Lugansk. Unlike the small number of people killed in fighting in Račak in 1999 (Le Monde witnesses said there had never been a massacre) and the limited number of Albanians killed before the war, Russia could refer to the killing of thousands of civilians in Donetsk and Lugansk and perhaps more important to the fact that it was obvious that Ukraine had violated an international agreement (the Minsk Agreement).

It is important to say that there is a general perception that international law is developed through practice. But it’s doubtful whether the precedent now set after the Kosovo War would make the Russian invasion more legitimate for that reason. More importantly, Russia has intervened in support of Donetsk and Lugansk after Kyiv had refused to implement the Minsk Agreement, a legally binding international agreement that was supposed to guarantee the autonomy and the security of the Russian-speakers in Donetsk and Lugansk. Russia has now used military force to “guarantee for the Russian-speakers’ security”, a decision that the Security Council was obliged to implement, but which had been stopped by a U.S. veto.

10. Summing up

From a purely legal point of view, from the point of view of international law, the arguments of Russia appear here to be more legitimate than the arguments of the U.S. and Ukraine, but that does not mean that the Russia’s arguments are morally acceptable. And despite the fact that Moscow’s legal arguments seem to outweigh those of the Western countries, this does not mean that they can simply legitimize a continued war with the killing of another hundreds of thousands of people. What we definitely can say, however, is that Western weapons support to Ukraine will prolong the mass killing, because Russia will never accept a loss in a war for its existence. Russia has a much larger population, and one will fight to the last Ukrainian artillery shell or to the last Ukrainian soldier. The Western weapons will just prolong the war and kill hundreds of thousands more Ukrainian soldiers and also many Russians. Or to quote former U.S. Assistant Secretary of Defense Chas Freeman: “We [the U.S.] will fight to the last Ukrainian”.

Some Western leaders argue that every state has the right to defend itself with any means (weapons systems and military alliances) possible, although these means may threaten the security of other states. Russia on the other hand says that also Western states have agreed to a “common security” or “indivisible security” that will not let the security of one state be established at the expense of others. Major powers would need a buffer zone denying threatening weapons systems that possibly will provoke a preemptive strike in case the political climate gets worse. Russia accordingly demands a security system including a kind of “Nordic neutral zone” for Central Europe with no offensive Western weapons systems, a zone of low tension, while the U.S. neoconservative elite argues that they have the right to pressure the counterpart to retreat step by step to guarantee U.S. supremacy. In the final analysis, this is what the war in Ukraine is all about.

As long as the Russian leadership consider the war, not as an attempt to conquering Ukrainian territory, but as an “existential war”, because of an “existential threat” from the West, Russia will wage the war by any means. Negotiations requires the West to take the Russian demands for security seriously. Otherwise, the war will escalate, and more and more countries and soldiers will be drawn into the war.

If one side in the Ukraine War outweighs the other, militarily, legally, and morally, this in itself should be a reason for a ceasefire and negotiations. But the United States’ willingness to accept restrictions on its own deployments in Europe may be a precondition. The U.S. concept of deterrence – its forward deployment of threatening weapons systems – may have to be replaced by a more defensive approach. The strategic nuclear deterrence may not be possible to replace for a long time, but the U.S. use of “a local deterrence” with offensive forces close to the border of the other side, is definitely in conflict with international law. Militarily, it presupposes a U.S. strategic superiority that we no longer have. It will open up for preemptive strikes, as we already have seen. It has an extremely destabilizing effect, something the present war is evidence of.

If we proceed to a “broader” definition of international law that also recognizes a “threat to the peace” as illegal under the UN Charter, we can say that the U.S. and Ukraine have now violated the UN Charter on one point after the other. These violations have taken place without a UN Security Council intervention because the U.S. and U.K. have been able to use their veto.

First, all Western leaders promised Gorbachev that NATO would not move its military presence east of Germany, which made Gorbachev withdraw Soviet forces from East Germany. However, the West did not keep its documented oral commitments, which is a violation of international law.

Second, the U.S. has moved its military presence into Central Europe and Ukraine so far that it has become a Western bridgehead close to Moscow and thus has become “a threat to the peace” as described by the UN Charter. It is destabilizing and it will open for preemptive strikes. It is a violation of international law.

Third, the US has built up a Ukrainian system of laboratories, a “military-virology complex”, which store deadly viruses and bacteria, weapons of mass destruction, at the border to Russia that pose “a definitive threat to peace”. It is in violation of the UN Charter and in violation of international law.

Fourth, through mass killings and ethnic cleansing, through a coup d'état and violations of a Security Council resolution, the United States and Ukraine have deliberately been pushing for a war and accordingly been guilty of violating the UN Charter and international law in several respects.

Fifth, through their policies of radical nationalism and “Ukrainification”, the United States and Ukraine have violated international law by using the Ukrainian-speaking West to confront the Russian-speaking East, which then U.S. Ambassador to Moscow William Burns already in 2008 considered a “threat to the peace”.

Sixth, the U.S. security elite speaks about the U.S. alliances as “defensive”, but one also speaks, very explicitly, about the use of other means than military warfare to exploit the vulnerabilities of the other to undermine its stability. One speaks about the use of “political warfare” and about aggressive military deployments. The U.S. focus is on undermining a “rival” to achieve victory. However, the UN Charter does not just seek to prohibit and prevent “military invasions” but also any threat or any aggression against another state. The “Victory Policy” of the dominating U.S. elite is not consistent with the UN Charter. This policy is in itself a violation of international law.

If we use a very “narrow” definition of international law, Russia would be guilty of violating the UN Charter. However, if we accept a “broader” interpretation, in which a “threat to the peace” and “threatening” deployments are violations of international law, the United States have several times been in breach with the UN Charter and the U.S. veto in the Security Council has let the United States with impunity repeat its violations. The question is whether Russia’s war should be considered a “war of self-defense” in accordance with international law. For the United States, a Russian war was also a precondition for cutting off the gas pipeline in order to decouple Europe from Russia and to weaken both Russia and Germany. This may even have been a primary reason for why the U.S. prepared for the war in Ukraine and then initiated this war.

The widespread claim that Russia wants to conquer Ukraine has no support either in rhetoric or in practice. Those are unsubstantiated claims, as I have described above. Russia would probably have needed a ten times larger force to even contemplate to occupy Ukraine and that is something Russian military planner would have been well aware of. But the more weapons with ever-longer range that the West gives Ukraine, the more Ukrainian territory Russia will claim in order to protect itself from Western attacks. For Russia, this is about protecting the Russians and the Russian-speakers in eastern Ukraine from mass killings, but also about denying the West any military presence, including biological laboratories, in Ukraine. This will possibly open up for some kind of Finnish solution for the rest of Ukraine after a Russian victory on the battlefield. After Ukraine left the Minsk Agreement and after Ukraine walked away from the Russian-Ukraine agreement of March-April 2022, Ukraine will lose even more and will have to accept a major loss of territory in the east and a “Finnish solution” for the rest of Ukraine.

This is something Russia wants to push through at all costs. Russia perceives the West’s activity as an “existential threat”: a war directed against Russia. To survive as a state, Russia will wage the struggle by all means at its disposal, including nuclear weapons if necessary. Russia has said that one will not use nuclear weapons in Ukraine, against a “brother nation”, but if the war will escalate into Poland, it is possible that nuclear weapons will be used in order to restore our “fear of atomic escalation”, to quote Sergey Karaganov. This has nothing to do with our preferences for Russia or not. One might, for example, argue that Russia is an autocratic and even a brutal state, but the Russian invasion was never about conquering Ukrainian territory, it is from Moscow’s point of view about defending the Russian people and defending the very existence of a unified state.