Russo-Ukranian Hybrid War: From the lens of International Law

Introduction

Ukraine, despite being an independent country since 1991, has been perceived by Russia as being part of its sphere of interest. Russia pursues a modernized version of’ Brezhnev Doctrine’[1] which is based on the limited sovereignty and states that the sovereign of Ukraine cannot be larger than that of the Warsaw Pact[2] prior to the demise of the soviet sphere of influence. It was also believed that possible integration of Ukraine into NATO[3] would jeopardize Russia’s national security. Russia was angered with Ukraine on the division of Black Sea Fleet[4] as earlier Ukraine had agreed to lease the Sevastopol port so that the Russian Black sea port would continue to occupy it together with Ukraine, but very soon these 2 countries got engaged in several gas disputes, this is always considered as one of the reasons of Russia attacking Ukraine. Moreover, Ukraine was increasing its cooperation with NATO, which the Russia felt was going against its national interest. So in no time, and as they had now an opportunity, Russian attacked on Ukraine, also called as the Russo Ukraine war started in Feb.2014 which also included Crimean peninsula and the Donbas region in Eastern Ukraine. After the Euro maiden[5] protests, Russia soldiers without any insignias took the control of the strategic positions and the infrastructure which was within the Ukraine territory of Crimea. No sooner or later, Russia then annexed Crimea. In April 2014, demonstration by pro Russian groups in the Donbas region of Ukraine accelerated the armed conflict between the Ukraine government and the Russian backed separatist forces. In no time in the month of August, Russian military vehicles crossed the border in several locations of Donetsk Oblast. The use of hybrid warfare in most unconventional manner by Russian forces was held responsible for the defeat of Ukraine forces in early September.

In International Law, the acts of aggression are prohibited and cannot be tolerated under any circumstances. The norms of jus cogens are applicable to all states irrespective of any specific treaty and its obligations. So in the present scenario, both Russia and Ukraine are bound by the charter of United Nations and they both are recognized as the members of UN.[6] The UN Charter consists of provisions related to sovereignty, self-determination and non interference under the articles 1.2, 2.1 and 2.7 respectively.

But in the Russo- Ukrainian hybrid warfare, all these provisions of UN were violated especially article 2.7 which states that UN won’t interfere in the matters which include domestic jurisdiction, but in these case it was not so, because the war was not based on domestic jurisdiction. Instead, it was a forceful occupation of the territory of others and UN was bound to take action but it did not do so. Hence, this war exposed all the flaws of UN.

Use of Hybrid Warfare tactics contravene with the principles of International Law

As soon as the Soviet Union got collapsed, the Russian federation soon tracked down the new approach which was used by the western countries to solve the conflicts called as the comprehensive approach principle[7]. Soon there emerged, the Wartime Doctrine in 2010 which consisted of new elements of running the war and solving the contingences. The doctrine points the integrated usage of military and non military objects together with their resources. The doctrine puts emphasizes on the meaning of the cosmic and information dimension. It states that information war let’s to achieve political objectives without using military forces.[8]

According to the Chief of the Staff General of Russian Federation, V. Gerasimov he stated that, in today’s century the wars are not directly declared but are simply started with unpredictable events. He put such thesis on the basis of the colour revolutions experiences in North Africa and The Middle East which had put a well functioning state within a few days in a chaotic situational state as a result of armed conflict and strange intervention. The conclusion which has been arrived from this statement is that, Russia can knock down and destroy any state without direct military intervention conducted on a large scale. The meaning of non-military means changes and their effectiveness in many cases exceeds the usage of the regular military armed forces. The ultimate aim is to achieve success.

Past experiences in the Ukraine show that the hybrid conflict includes multi-storey efforts directed for destabilizing of the state functioning and polarizing its society. In contrast to the conventional war the gravity centre of the hybrid war is focused upon the society. It also underlines the importance of the information war in the era of the hybrid war.

The Hybrid war is based on the idea of playing fight in people’s minds. In consequence it also leads to information and psychological influence implementation on the wide scale with the aim to achieve the majority in morale sphere and lead to psychological depression both the armed sub-units and civilian population. The main objective of the hybrid war is to reduce the need of deploying the battle sub-units of military forces, and at the same time to force the opponent for entire employing its potential and, in consequence, the destructive influence on the government and the entire state.

Hybrid warfare: Phase one and two of Russo-Ukrainian War.

Russia took action to prevent Ukraine’s economic and political assimilation into the NATO. This phase clearly tells about the economic and political levers to demonstrate a hybrid approach so as to achieve political goals. The vulnerabilities of phase one were; Ukraine reliance on Russian gas and Ukrainian debt to Russia. The means used by Russia in phase one were; control of Ukrainian gas supply and political pressure on Ukraine to avoid certain negotiations with NATO. So the effects of phase one were that negotiations came to a halt in December 2014.

In phase two, following the removal of Yanukovch from power and the Maidan protests in early 2014-2015, Russia took action that resulted in the de facto annexation of Crimea. This phase clearly highlights examples of a state actor’s use of synchronized means to demonstrate a hybrid approach to achieving political goals. The vulnerabilities of this phase were; political leadership in Ukraine, social cohesion in Ukraine. The means used by Russia were; Russian military actions in Crimea, heavy fighting in Donetsk in September and January, digital propaganda and disinformation, local referendum. So the effects of phase two were; annexation of Crimea and Minsk Accords.

Hybrid warfare tactics V/S Principles of International Law

Russia and Ukraine both are the members of certain legal instruments in which Russia has obliged to respect and recognize Ukraine and its territorial integrity. Both Russia and Ukraine are members to the Alma-Ata Declaration[9], the agreement between Russia and Ukraine on the conditions and status of the Russian Black Sea Fleet which is situated on the Ukrainian territory[10] and lastly they are also members to the Kharkov Pact of 2010 which is in regards to the lease of the naval facilities situated in Crimea[11].

In International law, the rule of non-interference is not directly mentioned in UN charter but it can be interpreted from Article 2 (7) particularly.

This was done with regards to the Maidan movement which took place in 2004 where the Russian president was accused for using natural resources as a means of influencing policy. This movement was openly supported by USA and EU. In this context it was held that the interference by them is simple and pure and hence not violative of rule of non-interference in international law.[12] If the interference is forceful, dictatorial then it can be considered as violate of rule of non interference.

International Humanitarian Law perspective

But when it comes to the question of Hybrid warfare on Ukraine, it is an act of aggression in a non- military fashion. There is a total violation of international humanitarian law when it comes to the use of hybrid warfare on Ukraine. International Humanitarian law is always considered as a branch of international law which regulates the armed conflict and protects the rights of the citizens who are involved in the act of aggression. It plays an important role when it comes to mitigating the effects of the war as it restricts and regulates the means in the way the war is taking place.

In the case of Hybrid warfare, IHL plays a very crucial role because in hybrid warfare a specific military strategy is used that is mixture of conventional warfare with modern technology and is used in the mist unconventional means. In this kind of warfare, many specific tactics are used by the acting part so as to achieve their goals.

Question of Sovereignty under International law

According to the Customary International law in the light of sovereignty it can be determined that sovereignty cannot be take away or isolated by the use of force. This principle has been confirmed under the Hague Regulations of laws and customs of war on land under article 43 and 45 respectively.[13]

The main purpose behind such rule is the concern of the international humanitarian law and hence it provides for some basic governing rule for a temporary period of occupation. But temporary occupying powers do not mean that the particular territory can be annexed in future and also they do not have any such powers to change the political structure of the occupied territory.[14] There is a significant difference between the oocupatio pacifia which means it is a non hostile and a consensual occupation of territory whereas on the other hand, oocupatio bellica means military seizure.[15] The latter part was done by Russia in form of hybrid warfare in Ukraine and in annexation of Crimean peninsula.

UN perspective on hybrid warfare in Ukraine

Article 1 of the UN Charter talks about the aim of UN which is to maintain peace and security in its member states, but it cannot be done at the cost of violating rights of self determination of its members. During the hybrid warfare crisis UN did not realize its goal and hence the Security Council meeting to call for a peaceful resolution was sabotaged. Though UN was active on other fronts such as the IHL, but it failed to address the problem of its members as it was unable to adopt a resolution so as to protect Ukraine from the effects of hybrid warfare.[16]

NATO (North Atlantic Treaty Organization) Reaction on Hybrid warfare in Ukraine

NATO was quite vulnerable to Russia’s hybrid warfare techniques. During the Ukraine crises in 2014, disinformation, intimidation and propaganda to encourage the less active members of NATO to accept the Russian versions of events was adopted. Disinformation was used at a great level against NATO governments and wider public opinion so as to keep the alliance politically and militarily off balance. Intimidation had highlighted Russia’s apparent willingness to employ nuclear weapons to de escalate NATO‘s “aggression”.

Soon the conflict with Ukraine got escalated in 2014, and Russia was tempted to seize territory in vulnerable frontline states by overt military so that NATO could not mount a collective and effective response.[17] The worst nightmare for NATO was the risk involved with the direct confrontation with the nuclear armed Russia and on the other hand; if they fail to respond to the aggression, then there might be a collapse of NATO. But soon to respond to the aggression, NATO came with the new 5000- strong Very High Readiness Joint Task Force (VJTF) which they thought would deploy rapidly the Russian adventurism, but it arrived to let to deter such aggression.

Though, Russia was making the use of hybrid warfare it did not neglected the direct use of military force. In summer of 2014, when Russia got exhausted with the use of non-military hybrid methods, soon the war in Ukraine changed its character from unconventional to conventional means. Russian battalion tactical groups (BTG) now directly intervened with Ukraine’s army. Mostly, the fighting involved clashes with armored forces, intense urban infantry battles, and heavy artillery barrages. The Russian side also employed ‘drones’ for surveillance and target acquisition, electronic warfare and air defense assets.[18]

Undoubtedly, NATO needs to enhance its military deterrence capability, but as in the case of west’s adversarial relationship with Russia, the temptation to describe this rivalry as hybrid warfare has already flamed the existing security situation and has also hindered the traditional diplomatic relations.

Case Study: Russo- Georgian War[19]- Hybrid Warfare on Paper, not in Action.

In this war, Russia had use the coordinated method of cyber and physical attacks. Russia entered into the Georgian territory in 2008 with an agenda to occupy the territory and to impose the liberal perspectives on realistic perspectives. In this war, the main reason behind attacking Georgian was its geographical location as it lies in the transit corridor of Central Asia and Europe and also it shares it border with the NATO member, Turkey, Hence indirectly challenging NATO for the war. In this war the strategy of Russia was to understand the preliminary test of hybrid war and how the conventional means can be used in the most unconventional manner. This war was just a mere one to understand the success rate of hybrid warfare and to analyze its impact on other countries.

In this case, all the norms of international humanitarian law were violated. Article 2(7) of the UN was interpreted in wrong way which is based on the rule of non-interference. Article 43 and 45 of the Hague Regulations of laws and customs of war on land based on sovereignty were not followed because this war came to an end after Russia and Georgia came into an agreement of not breaking the ceasefire. These negotiations went for a period of 5 days. Altogether, this was done in the pursuance to indirectly challenge NATO.

Conclusion

Hybrid warfare adds a new dimension to how coercion, aggression, conflict and war are to be understood. In this respect, new geostrategic contexts, new applications of technologies and new organizational forms suggest the likelihood that this form of warfare will persist and continue to evolve into the future. From this incident of Russo- Ukrainian hybrid war, it can be seen that international law can be uncertain sometimes and it is considered to be an inherent characteristic of international law. The so called proxy war or also called as the hybrid war has contributed in the deterioration of the legal order in international law. Moreover, to add up to this the flaws in UN have been exposed and used mercilessly by the hybrid warfare tactics. These flaws of UN need to be addressed in such a manner that enhances the conditions for international humanitarian law.







[1] Soviet foreign policy that proclaimed, any threat to socialist rule in any state of the soviet block of east Europe was a threat to them all. [2]Collective defense treaty signed in Warsaw, between USSR and 7 Eastern bloc satellite states of Eastern Europe during cold war. [3] North Atlantic Treaty Organization, it is an intergovernmental military alliance between 29 North American and European countries. [4] It is the fleet of Russian Navy in the Black Sea, the Sea of Azov and the Meditarrian Sea. [5] The protests were sparked by the Ukrainian government's decision to suspend the signing of an association agreement with the European Union, instead choosing closer ties to Russia and the Eurasian Economic Union. [6] Cherif Bassouni, 'International Crimes and Jus Cogens' [1996] 59(12) Law and Contemporary Problems [7] At present there is the lack of agreed definition in the NATO. Nevertheless it must be understood as widely agreed action which has the aim of integration at security level, political sphere, laws, human rights and international missions conduction [8] The Military, 2010 pg 7 [9] It expressed the need for urgent action by the world community to protect and promote health of all people in the world. [10] Goodman R, 'Humanitarian Intervention and Pretexts of war' [2006] 107(10) American Journal of International Law [11] Ibid [12] Ibid [13] Goodman R, 'Humanitarian Intervention and Pretexts of war' [2006] 107(10) American Journal of International Law [14] Ibid [15]Berzins J, ' Russian New Generation Warfare' (Shifting paradigm of war, 14 October 2014) < http://www.europeanleadershipnetwork.org/russian-new-gen-eration-warfare-implications-for-europe_> accessed 19 November 2020 [16] Ibid [17] Jonathan Solomon, “ Facing Russia: Conventional defense and deterrence in Europe”(2015) [18] Philip.A.Karber, Lessons learned from Russo-Ukrainian War, (Vienna, VA: The Potomac Foundation 2015) [19] 2008


Submitted by,

Rakshandha Darak,

Alliance University.