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Viktoriia Lapa upon Invitation: One year of the Russian aggression against Ukraine – (im)personal reflections on current developments

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One year into the war, it is clear that the real motives of Russia are aimed at the destruction of Ukraine as a free democratic state, and the genocide of Ukrainians as a nation, finds Viktoriia Lapa.

“It is an overwhelming task to list all issues brought by the Russian aggressive war against Ukraine and it goes beyond this short reflection piece. One thing though that has clearly arisen from this war is sacrosanct: the bravery of Ukrainian people.”

To find out what myths surround the justification of the invasion, and what role the international community will play in bringing justice to the victims of this Russian aggression, tap the link in our bio.

Viktoriia Lapa is a Lecturer at Bocconi University in the Department of Law.

My great-grandfather who fought along with his Russian comrades against nazi Germany during the WWII would have been surprised to discover that in 2023 Germany was delivering tanks to Ukraine as a defensive means against the invasion by the authoritarian Russian Federation. Indeed, the Russian invasion of Ukraine has turned some tenets of our historical memory and understanding of the world upside down. The Russian aggression has brought to the fore many issues starting from those related to international law, including international criminal law to the effectiveness of sanctions and meaning of such human values, such as peace and liberty that we thought were set in stone by the post-World War II international agreements. Before delving into the main questions put in the limelight by this Russian aggression, one has to dissipate some myths around justifications for such invasion.

First of all, there are still some scholars who consider that the Russian invasion was a response to the NATO expansion.[1] Such argument is ill-formed since the real motives behind the Russian aggression have nothing to do with the enlargement of the NATO. One has to look for official messages of the Russian President Vladimir Putin and Russian state-controlled media. It is true that the President Putin referred to the NATO expansion in his pre-invasion speech of the 21st of February 2022 mentioned that “Ukraine joining NATO is a direct threat to Russia’s security”.[2] This claim is dispelled by the Russian reaction to the request of Finland to join NATO which shares 1,340 km border with Russia. The same President Putin commented that the Finnish bid to join NATO does not pose any  security threats to Russia.[3] The real motives of Russia are aimed at a destruction of Ukraine as a free democratic state heading towards integration with the European Union and genocide of Ukrainians as a nation. Indeed, such aims can be drawn, among others, from one infamous article “What Russia should do with Ukraine” published on the 3rd of April 2022 by the Russian state-controlled media RIA-Novosti where it was stated that “Ukrainian nazism is no less of a threat to peace and Russia than Hitler’s version of German Nazism” and “Denazification will inevitably be de-Ukrainianization as well”.[4] Such messages point out to the fact that by creating the myth of “the Ukrainian nazi” Russia connects its genocidal intention to extinguish Ukrainians as a separate nation.[5]

Secondly, many Western media bought the Russian propaganda argument that the war in two regions of the eastern Ukraine (Luhansk and Donetsk) was a civil war among Ukrainians.[7] For 8 years Russia argued that it had no involvement in these two regions and there were simply Russian-speaking Ukrainians fighting against the “Kyiv regime”. Yet again, such claims have been finally dispelled by the European Court of Human Rights which in its decision on admissibility in the case Ukraine and Netherlands v. Russia established “the presence in eastern Ukraine of Russian military personnel from April 2014 and the large-scale deployment of Russian troops from August 2014 at the latest”.[8] Having discussed some misconceptions behind the Russian invasion, it merits to sketch certain developments at international law stage, diplomatic efforts and future solutions for peace.

Related:  Monday Briefing 27/03/2023

First and foremost, we have to underline that by unprovoked attack against Ukraine, Russia has bluntly violated the main principle of international law, enshrined in Article 2 (4) of the UN Charter – the prohibition of the use of force.[9] In its meeting of 2 March 2022, the UN General Assembly adopted a resolution supported by 141 countries demanding Russia immediately end its military operations in Ukraine.[10] Since Russia falsely claimed that Ukraine has committed a genocide in Donbas, Ukraine brought the case to the International Court of Justice (“ICJ”) under the Genocide Convention. In its preliminary measures order, dated 16 March 2022, ICJ requested Russia, among other, “to immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.”[11] Even though Russia has never followed the above-mentioned decisions, they play an important role for Ukraine in its fight for justice.

Secondly, the acts of brutality committed by the Russian soldiers in Ukraine have underscored the value of International Criminal Court which has the jurisdiction to prosecute war crimes. In the end of March 2022, the whole world was shocked by the Russian atrocities in Bucha and Irpin’ along with the attacks on the Ukrainian city-martyr, Mariupol. Lithuania was among first countries to submit its referral to the International Criminal Court (“ICC”) to start investigation into the situation in Ukraine which was lately joined by 42 other states.[12] One has to remember, though, that the crime of aggression is beyond the jurisdiction of the ICC.[13]  In this regard some prominent scholars like Professor Philippe Sands push for creation of the separate tribunal for the crime of aggression committed by the Russian political and military leadership.[14] Such idea has been supported by the European Parliament in a resolution adopted on the 19th of January 2023.[15] It remains to be seen where these ideas lead us, but the international community has to be resolute in its condemnation and will to bring justice to the victims of this Russian aggression

Thirdly, the Russian invasion tested once again the effectiveness of sanctions as a tool of foreign policy and readiness of the CEOs to take a moral standing. While the sanctions adopted by the European Union, US and other countries like Canada and Japan have played a prominent role in cutting the access to the military technology to Russia and putting pressure on the inner circle of Putin to stop aggression, they have not managed to change the Russian strategy. Without any doubt, sanctions have managed to slow the growth of the Russian GDP and had an impact on the Russian economy. Some research finds that the netflow of inward FDI to Russia has decreased dramatically and Russian technology sector was hit by loss of imports.[16] However, the harsh impact is still limited to certain sectors. As a matter of fact, many foreign companies that announced their withdrawal from Russia, still operate there. In January 2023 the research by two Professors of the University St.Gallen in Switzerland, Simon Evenett and Niccolo Pisani has revealed that out of total 1,404 EU and G7 companies that were active in Russia, less than 9% had divested at least one subsidiary in Russia.[17]In one of its articles, the Financial Times explains that the CEO of many European companies struggle to pick the side in the conflict and divest from Russia since they have been raised in a world where the business has been seen “through the prism of growth prospects and cost efficiencies”.[18]

Leaving aside many problems raised by the Russian aggression, many scholars discuss possible solutions to this bloody war. Without any doubts, the debate on the peace talks and their merits gained a lot of attention of the media.[19] As far as the peace talks are concerned, Ukrainian President presented his 10 points “Peace Formula” among which there is “restoring Ukraine’s territorial integrity and Russia reaffirming it according the U.N. Charter”, which Zelenskiy said is “not up to negotiations”.[20] Many Western leaders still do not grasp the idea that if we allow Russia to grab the land through the use of force in exchange for “peace”, it would not stop Russia but rather give its time to regroup and go further.[21] Trading Ukrainian land for peace is not a sustainable solution at least for two main reasons. For one, it is the acceptance by the whole international community that one country can redraw the state borders through the use of force. Such agreement will simply set in stone the violation of international law and untie hands to other states like China. Along these lines the European Union, US and other UN countries have never recognized the Russian annexation of Crimea and Ukraine has the right to take it back.[22]For second, there is a moral underpinning to such position – giving up a land means leaving Ukrainians that live on those territories either to be killed by the Russian regime or to live in a constant fear in an authoritarian state where there is no respect for basic human rights.  In this context the just peace could be achieved only through the Russian withdrawal of its troops from the Ukrainian territory. To achieve this aim, Ukraine needs arms from the West. Russia would be ready to negotiate only when it is defeated on the frontline. It sounds like a harsh line, but the Ukrainians do not want to be fooled by Russia once again – indeed, in 1994 when Ukraine gave up its nuclear weapons, Russia agreed to respect the territorial sovereignty of Ukraine within its internationally recognized borders.[23] Russia has brusquely violated this agreement, though.

Related:  Macron’s pension reform and the democratic legitimacy of necessary change 

It is an overwhelming task to list all issues brought by the Russian aggressive war against Ukraine and it goes beyond this short reflection piece. One thing though that has clearly arisen from this war is sacrosanct – the bravery of Ukrainian people. Indeed, ordinary Ukrainians have shown to the whole world what the values enshrined in widely used words “liberty, freedom, and peace” have a tangible meaning when professors, judges, engineers, IT experts went to fight for these values. To use the words of Professor Timothy Snyder, we “owe to Ukrainians a huge debt of gratitude for their resistance to Russian aggression.”[24] In order to show this gratitude it will be on our shoulders to hold accountable those Russian military and political elite and others who started the war of aggression and committed war crimes in Ukraine and to protect the system of international law which with all of its shortcomings is the best system that we have created so far.

On a personal note, those ordinary Ukrainians who fight for peace, liberty and freedom are my friends and colleagues on the frontline. Some of them paid literally with their lives like a brother of my friend from Kyiv, Ivan Zaitsev, or my neighbor from Dnipro, Alex Diryavka. Neither of them were professional military but both of them knew what it meant to live in a liberal, free and democratic country and did not want to be subjugated under the Russian authoritarian control. It would be a moral obligation of all Ukrainians and Europeans to make sure that their lives were not lost in vain. We should not give a chance an authoritarian aggressor state to win.

[1] For example, the American political scientist, John Mearsheimer, refers to the Western and NATO fault in various interviews and articles. Isaac Chotiner, John Mearsheimer on Putin’s Ambitions After Nine Months of War, The New Yorker, 17 November 2022 https://www.newyorker.com/news/q-and-a/john-mearsheimer-on-putins-ambitions-after-nine-months-of-war

Related:  Tra i Leoni n. 103, May 2023

[2] Hopkins, Valarie (21 February 2022). “Highlights From Putin’s Address on Breakaway Regions in Ukraine”The New York Times. https://www.nytimes.com/2022/02/21/world/europe/putin-speech-transcript.html

[3] Putin announced that the bids of Finland and Sweden to join NATO do not pose any threats (in Russian), RBK, 16 May 2022 https://www.rbc.ru/politics/16/05/2022/62823ce19a794708d0996d8a

[4] Timofey Sergeytsev “What Russia Should Do with Ukraine”, Ria Novosti, 3 April 2022, https://ria.ru/20220403/ukraina-1781469605.html (original in Russian) and its translation into English “What should Russia do with Ukraine” https://www.stopfake.org/en/what-should-russia-do-with-ukraine-translation-of-a-propaganda-article-by-a-russian-publication-by/

[5] Douglas Irvin-Erickson, Is Russia Committing Genocide in Ukraine?, Opinio Juris, 21 April 2022 https://opiniojuris.org/2022/04/21/is-russia-committing-genocide-in-ukraine/ More on the Russian actions as genocide against Ukraine see Kristina Hook, Why Russia’s war in Ukraine is a Genocide, Foreign Affairs 28 July 2022, https://www.foreignaffairs.com/ukraine/why-russias-war-ukraine-genocide

[7] EU vs Disinfo website provides the fact-checking of Russian myths https://euvsdisinfo.eu/report/the-war-in-donbas-is-a-civil-war-between-ukrainians

[8] Applications nos. 8019/16, 43800/14 and 28525/20, Ukraine and Netherlands v Russia https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-222889%22]}

[9] Haque, A. (2022). An Unlawful War. American Journal of International Law Unbound, 116, 155-159. doi:10.1017/aju.2022.23

[10] General Assembly Resolution demands end to Russian offensive in Ukraine, 2 March 2022 https://news.un.org/en/story/2022/03/1113152

[11] Order on provisional measures, Ukraine v Russian Federation, 16 March 2022, International Court of Justice https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf

[12] ICC-01/22, International Criminal Court, Investigation, Situation in Ukraine https://www.icc-cpi.int/ukraine

[13] Tom Dannenbaum, The ICC at 20 and the Crime of Aggression, Volkerrechtsblog, 14 July 2022 https://voelkerrechtsblog.org/the-icc-at-20-and-the-crime-of-aggression/

[14] Philippe Sands, There can be no impunity for the crime of aggression against Ukraine, Financial Times, 17 February 2023, https://www.ft.com/content/c26678cb-042c-4b84-bb26-88047046601a

[15] Ukraine War: MEPs push for special tribunal to punish Russian crimes, 19 January 2023 https://www.europarl.europa.eu/news/en/press-room/20230113IPR66653/ukraine-war-meps-push-for-special-tribunal-to-punish-russian-crimes

[16] Heli Simola, War and Sanctions: Effects on the Russian economy, Center for Economic and Policy Research, 15 December 2022, https://cepr.org/voxeu/columns/war-and-sanctions-effects-russian-economy

[17] War in Ukraine: Many firms continue to operate in Russia, 19 January 2023, University of St. Gallen https://www.unisg.ch/en/newsdetail/news/war-in-ukraine-many-firms-continue-to-operate-in-russia/

[18] Picking sides proves too hard for CEOs in a fragmenting world, https://www.ft.com/content/2ad51d5c-20ad-4634-9755-778e0347f09e

[19] For example, there is the Economist debate on the merits of peace talks between Ukraine and Russia. Ukraine should—and, properly supported, can—seize Crimea, argues Ben Hodges, 29th of January 2023 https://www.economist.com/by-invitation/2023/01/29/ukraine-should-and-properly-supported-can-seize-crimea-argues-ben-hodges For a contrary argument see Christopher Chivvis https://www.economist.com/by-invitation/2023/01/29/talks-between-russia-and-ukraine-would-save-lives-argues-christopher-chivvis

[20] Explainer: What is Zelenskiy’s 10-point peace plan?, Reuters, 28 December 2022 https://www.reuters.com/world/europe/what-is-zelenskiys-10-point-peace-plan-2022-12-28/

[21] Kyiv and Baltics hit out at Emmanuel Macron’s stance on Russia, Financial Times, 4 December 2022 https://www.ft.com/content/d170a8f9-2392-49f8-a59c-14a7dba18c68

[22] Andriy Zagorodnyuk, The Case for Taking Crimea, Foreign Affairs, 2 January 2023 https://www.foreignaffairs.com/ukraine/case-taking-crimea

[23] Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons signed on 5 December 1994 https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280401fbb

[24] Timothy Snyder, Gratitude to Ukraine, 11 December 2022 https://snyder.substack.com/p/gratitude-to-ukraine

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Lecturer at Bocconi University

Lecturer, Department of Law, Bocconi University

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