Russian Hybrid War in Ukraine and International Law

Tittle: Russian Hybrid War in Ukraine: Is Hybrid War properly covered by International Law? If so, will power politics prevail? How is it seen by the different lenses of International Relations?

Table of Contents

  1. Introduction
  2. Background
  3. The conflict in Ukraine
  4. Definition of Hybrid War
  5. Russian Hybrid War in East Ukraine

III. Hybrid War and International Law

  1. Hybrid War in International Law
  2. Hybrid War and the Justification of the use of force
  3. Hybrid War and international law: Hybrid War against the international treaty
  4. Analyzes of Russian Hybrid War in Ukraine through different IR lenses
  5. Realism
  6. Liberalism
  7. Constructivism

V . Conclusion

  1. Introduction

The objective of this paper is to discuss the conflict in Ukraine and how the aggression perpetrated by Russia against its neighbor can be characterized as Hybrid War. Furthermore, the Russian Hybrid War in Ukraine will be analyzed through the International Law perspective and the justification of the use of force.

Additionally, the conflict will be examined by three different International Relations lenses: Realism, Liberalism, and Constructivism.

Finally, the conclusion will aim to determine if the current Hybrid Warfare committed by states against other states is properly covered by the current International Law as well as if the legal outcome will be altered depending on the political power of the offender.

  1. Background
  1. The conflict in Ukraine

Since the fall of the Soviet Union, Ukraine has been seen as part of the sphere of Russia’s influence, keeping strong economic and political ties with it. However, in November 2013, after months of popular protest in Kiev against the decision by the Ukrainian government to not sign the Association Agreement with the European Union (which are now called the Euromaidan demonstrations), the pro-Russia president Viktor Yanukovych was ousted from power.

Following this process, Russian troops without formal identification took control of strategic positions in the Ukrainian peninsula of Crimea, which was given to Ukraine as a present from Russia in 1954[6]. These actions were immediately declared illegal by the Ukrainian interim government, stating that Russia had violated the internationally binding Budapest Memorandum on Security Assurances[7]. This document, which Russia, The United States, and The United Kingdom had signed, reaffirmed their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine.

Soon after the occupation and later annexation of Crimea, demonstrations by pro-Russian locals in the Donbass region escalated into armed conflict between self-declared separatists and the Ukrainian armed forces. It is widely believed that the separatists have covert military support from Russia in terms of personnel and equipment. This covertness and lack of clarity between the opposing sides is one feature of Hybrid War.

  1. Definition of Hybrid War

Hybrid War is a military strategy that is combines elements of conventional warfare, cyber warfare, and irregular warfare. Irregular warfare, the most important element in Hybrid war, is comprised of the presence of Special Forces behind enemy lines, an information war (use of media and other means to spread propaganda and misinformation), and backdoor proxies, or local civilians that infiltrate the conflict theater responsible for subversive efforts. Moreover, Hybrid Warfare is also comprised of political, social, and economic actions used to disrupt the enemy without resorting to military means[8].

The main objective of Hybrid War is to avoid attribution or retribution[9]. Since most actions undertaken by those who use Hybrid Warfare as a means of aggression are concealed, it becomes challenging for the victims to attribute such actions to the aggressor. The difficulty in assessing the culprit leads to inadequate retribution or the impossibility to counteract the hostility, as it is hard to prove who is the group actually behind it. An obvious example of this situation is the conflict between Russia and Ukraine with Russia being the aggressor and Ukraine being the victim.

  1. Russian Hybrid War in Ukraine

There have been several examples of Russia using Hybrid Warfare in Ukraine. From Russian soldiers on Ukrainian soil without insignia to half-empty trucks for “humanitarian assistance” and a campaign of disinformation, Russia has been extremely active in trying to avoid attribution for its actions.

In terms of military capabilities, although the war between Pro-Russian rebels in Ukraine and the Ukrainian National Army seem to be a civil war between pro-Russian rebels and the pro-European Union national army, it is, in fact, a covert operation by Russian “volunteers” and “vacationing soldiers, who joined the rebels in the war without insignia from its Russian armed forces. These sorts of maneuvers cannot easily be regarded as a direct invasion of the territory of Ukraine by Russia because those commanding the troops were unidentifiable.

Furthermore, Russia sent 200 white trucks to Ukraine (which entered without consent) as “humanitarian assistance” to the civilian population. However, most of the trucks were half empty or were not inspected at all. A surprising strengthening and reaction of the rebels who were in the brink of defeat by the Ukrainian army followed this event. The shooting down of Malaysian Airlines Flight 17 by what experts believe, was a BUK anti-aircraft system, would be another example of the Russian military footprint in Ukrainian soil.

In terms of economic actions taken by Russia, the increase in the gas prices supplied to Ukraine from US$ 268.5 per 1,000 cubic meters before the conflict to US$ 485[10] (which is much more than other EU consumers) during the conflict is a good example of undermining the capacity of the enemy to fight without actually openly attacking through military force. By doing this, Russia is able to avoid outright retribution.

In regards to the information war, Russia’s biggest tool is RT or Russian TV. It is an English speaking news channel, targeted to an international audience, in order to give the Russian side of news (including coverage of the Ukrainian conflict), with misinformation and events that are not replicated by any other news outlets in the world. An example of this is the suggestion that the Malaysian Airlines Flight 17 was actually shot down by the Ukrainian Air force, a theory that was not followed by any other non-Russian news outlet around the world. The misrepresentation was so extensive that one of its American news reporters resigned on live TV, alleging that she no longer wish to be a part of such distortion of the facts.

Finally, a series of bomb explosions in the West part of Ukraine, cyber disruption, and the weakening of small governments in East Ukraine have been the latest instruments used by Russia to destabilize and weaken the Ukrainian government. Russia adopted these methods as a way to attack the Ukrainian government from within while avoiding being accused of these actions and thus avoiding any retribution under the International Law system that governs the relationship between foreign states[11].

  • Hybrid War and International Law

 

  1. Hybrid War in International Law

In internationally legal system, hybrid war has not been well defined because what state wages a hybrid war is within the grey area of international law. Hybrid war is always in the guise of self-defense, as Russia proved it in the Russo-Crimea war, on legal grounds under UN Charter, Article 517, which allows a Member of the UN has the inherent right of individual or collective self-defense if that state suffers from armed attack, until the Security Council has taken measures to intervene in halting the armed attack to retain international peace and security. In other words, what ‘hybrid war’ in international law is to pretend to be an allowable war in international law, yet unveiling the loopholes of international laws. Despite Article 51, and the Washington Treaty recently, there have been some contradicting international laws and judgments to our previous passage. Newly codified Article 8 bis of the ICC Statute states to only criminalize inter-state aggression and excludes non- state entity. The 2004 ICJ Advisory Opinion of the Israeli Wall can also be a contradicting example. Israel and Palestine has always been in war and in 1993 they made the Oslo Accord peace sign and the Gaza Wall. Israel now controls everything that goes in and out of Gaza making sure no guns go in. This was because of Palestine, not formally declaring a war but using terrorist attacks making Israel hard to defend. In sum, this case with Israeli Wall is about a case trying to crowd the people of Palestine behind a wall and put Israel fully in charge of what is behind the wall. Oddly, in 2004 the ICJ report 1388 seemed to confirm the classical view by requesting Israel to prove that a state (not just groups of terrorists) was behind the terror attack and made the whole case illegal.

  1. Hybrid War and the Justification of the use of force

            To justify Hybrid War and its use of force, we would first have to look into international laws and treaties relevant to Hybrid War/Russia’s actions and also some similar cases looking at how those disputes were dealt.

            First of all, the Charter of United Nation Article 2 (4) talks about how all members should refrain in their international relations from the threat of using force against the territorial integrity or political dependence of any state. Russia clearly is using force against the territory of Crimea and the political power of Ukraine. In addition, with the Resolution 2625 adopted by the General Assembly, it demands for friendly relations and cooperation, which Russia obviously violated. And in its text of Resolution 2625

_________________________________

8 ICJ Report 138. International Court of Justice. Legal consequences of the construction of a wall in the occupied Palestinian Territory

Itself9, it mentions the word ‘hybrid war’ in adequate terms.

            Despite these situations, Russia still seeks for a similar country or situation that was considered illegal which would allow Russia to keep up with their hybrid war. So in response to the previous violations, Russia claims Kosovo and Libya to have gone beyond the UN’s recently granted mandates dealing with independence and liberty. However, the ICJ has stated on 22nd, July 2010 that the circumstances for Kosovo and Libya were different and that no such violation of international law or treaties has taken place. Also Libya’s case was considered flawless in virtue of chapter 7 of UN. So the actions of Russia trying to justify their behavior have ultimately been declined.

            In notice of the behaviors of Russia endlessly denying itself as the attacker there is a relevant example case of the Dorado Canyon in 1986 before the 9/11 crisis. In this case, US was bombed in Berlin and quickly suspected that it was Libya and retaliated 10 days later by bombing Libya. Even though in the trial of 2001,US found that the bombing was actually planned by the Libyan secret service and the Libyan Embassy, during the time when US actually retaliated, US weren’t sure whether the attacker was really Libya or any other terrorist group. Now, before 9/11, retaliating a unit that was not considered as a state entity was considered illegal and faced condemnations. So the laws have changed after 9/11. Article 5 of the Washington Treaty is one example and so is Article 51 of the UN Charter. With the Washington Treaty, the parties agreed that an armed attack against one or more of them in Europe or North America shall be considered an

_____________________________

9 UN Documents. 2625(XXV). Declaration on principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. /www.un-documents.net/a25r2625.htm

 

attack to all and under article 51 of the UN Charter, take actions deemed necessary. In

Article 51 of the UN Charter, the verses have changed specifically as the traditional inter-state concept of armed conflict before 9/11 does not specify that the originator of an attack has to be a state actor. In sum, even though we follow what Russia says to be true, we can still punish Russia under these changes with Russia still remaining unjustified.

  1. Hybrid War and international law: Hybrid War against the international treaty

            The conference that created the birth of OSCE, the Helsinki Conference10, has their treaties wholly ignored by Russia despite Russia itself being a member of the OSCE. With its intervention in Crimea and Ukraine, Russia has come to the front violating treaty I(2) invading in Ukraine’s freedom of choice on whether to join or not join international organizations. Russia has taken such actions scared of losing the very route to the west and the very land that separates them from the West. II (1),(2)claims to have no interference with other country’s sovereignty. Treaty III and IV insists that the participating states should refrain from using each other’s territory as the object of military occupation. Russia has already violated all of these rules and denies acknowledging themselves as the green men trying to reside from condemnations. Lastly, Russia had signed the Budapest Memorandum in 1994 with Ukraine, UK and US to guarantee Ukraine from the threat and use of force from other states destroying Ukrainian territorial integrity and political independence. The Budapest Memorandum is a political agreement to ensure Ukraine’s accession to the Treaty on the Non-proliferation of Nuclear Weapons. Even though 1994 Budapest Memorandum entitles the signatories to

____________________________

10 Jean-Dominique Giuliani, Foundation Robert Schuman, Policy Paper, Russia, Ukraine and International Law (17th February 2015)

 

use their weapons against Ukraine in self defense, Russia had still not legally proved its self-defense issues. Also Russia claims that the Budapest Memorandum does not apply to its annexation of Crimea due to the separation of Crimea, what Russian military supports in Crimean war cannot be simplified to only a civil war in Crimea because of Russia acting so actively in the Crimean War. Therefore, what Russia had done in Crimea was a Hybrid War against the international treaty, which is a certain violation in international law.

  1. Analyses of Russian Hybrid War in Ukraine through different International Relations lenses
    1. Realism

By analyzing the actions of Russia through different International Relations lenses, it becomes clear that Russia acted in a very realistic way where security of the state (or self-preservation) was its main objective. Because of NATO’s (North Atlantic Treaty Organization) expansion into Eastern Europe, thus threatening the current balance of power, and the possibility of losing its Black Sea fleet naval base in Sevastopol (Crimea) to an unfriendly Ukrainian government, Russia put rationality above morality and acted according to its own interests.                                                                                                          Moreover, for Realists, International Law is not considered real law since it has no enforcing mechanisms11. Therefore, Russia saw its unilateral actions of aggression in ___________________________

11 Armstrong, J. D, Theo Farrell, and Hélène Lambert. International Law And International Relations. (Cambridge University Press, 2012), 76-88.

Ukraine as the only way to preserve its national security and decided that the international consequences of such actions would be bearable, since there is no overreaching power that can enforce global rules or punish bad behavior through the use of force or legal sanctions. Moreover, even if International Law adapted to Hybrid War, according to Realism, power politics would still prevail and a country such as Russia (who is a permanent member of the UN Security Council) would mostly probably be treated differently before the law, compared to a weak state.                                              

            However, Russia knew that in a world that praises liberal economic ideas, possible economic sanctions would be imposed if Russian’s actions would be seen as illegal under international law. Therefore, Russia used methods of Hybrid Warfare to disguise its actions instead of using elements of conventional warfare to accomplish its objectives.

  1. Liberalism

Liberalism views international law for a state, in the international society, to bear its state accountability and guarantee individual liberty in a more peaceful international order[12]. Russian government can explain in liberalist way that there are two kind of individual liberty for Russian government to guarantee: first, the liberty of Russian citizens’ in Crimea from its liberty being abused within war in Ukraine and, second, the liberty of Russian volunteers and vacationing soldiers to join the rebels in the war. Does it mean that the behavior of Russian volunteers and vacationing soldiers is equal to exercising their individual liberty? The answer is obviously NO. First, there is still no obvious evidence proving Russian citizens under risk during war in Ukraine; second, even though the Russian volunteers and vacationing soldiers have their liberty in sustaining its role in transnational civil society if those individuals view its action for the sake of peaceful international order, it does not mean that Russian government could support its citizens in joining the hybrid war because liberalism does not support for any kind of use of force to guarantee individual liberty but emphasizes non-violent dispute resolution for the formation of inter-dependent ties for states to bear its accountability to fulfill institutionalized cooperation to ensure individual liberty. In liberalist landscape, liberal institutionalism highlights the role of institutional politics to promote peace[13]. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States under resolution 2625 of the General Assembly can be regarded as liberal institutionalism to prevent territorial acquisition through any threat or use of force from being legally recognized. In reality, Russia still cares or may be afraid of sanction imposed by international society if Russia itself directly waged a war in Ukraine for annexation of Crimea, thus Russia adopted hybrid war, a covert war, to fulfill its aim of annexation of Crimea in the guise of humanitarian intervention to save its so-called Russian citizens at risk in Crimea and in the name of liberty fulfilled by Russian volunteers and vacationing soldiers.

  1. Constructivism

            A constructivist’s perspective on Hybrid War would be that just as US and USSR stood as arch nemeses for forty years and eventually achieve peace and increased partnerships on international initiatives, so can Ukraine[14]. A great number of countries in the West have blamed Russia for the crisis but it looking into the roots of the conflict, the way Ukraine sees itself after the independence in 1991 might be main source. The people of Ukraine have repeatedly stressed their desire for a more democratic government as seen in the Orange Revolution. So the crisis might not the fault of either US or Russia but rather a by-product of Ukraine changing identity from a Russia oriented to a more European one.

Moreover, language plays a great whole in the Ukrainian conflict. The East part speak mostly Russian, creating a greater identification with the “motherland” of Russia. The tentative of Kiev to alienate the Russia language in the country, further disaffect the Russia speaking community in the East. Therefore, maybe it is not a surprise that it was in the East where the conflict exploded.

Another view can count on the initial history between NATO and Russia. Recent, Prof. Dr. Gu Xuewu, who is the director of Center for Global Studies announced in Munich that the West is taking advantage of its financial structure, energy structure and media power to coerce Russia. It is hurting Russia’s economy and also damaging Russia’s reputation causing enormous losses. This leaves The United States and its European allies with the most responsibility over this crisis because the West had threatened Russia’s core strategic interests through NATO enlargement, ignoring Moscow’s repeated warnings and EU expansion with value promotion in Russia’s backyard. In these situations, Russia having its own way out could in some terms be considered right because after all, a country has to seek for its own interests, too. Lastly, looking through the history of Crimea and the Black Sea, this territory means more than just the land and that is why it has brought such crisis.

  1. Conclusion

To conclude, these back and forth of laws are recognized to be because even though the term Hybrid War itself is old, recent Hybrid Wars are a lot different from the Hybrid Wars in the past. Examples of Hybrid Wars in the past would be American Revolution with George Washington’s Continental Army, Arab Revolt, and Napoleonic Wars[15].

Despite the roots in history, modern Hybrid War has to be considered different as the numbers of non-state actors has rose with information technology and strategies followed by advanced weapon systems have evolved. Moreover, besides the Libya case of 1986, that is one of the first times that a sovereign state (Russia) is using Hybrid War to conceal its involvement in a conflict in order to avoid attribution and possibly retribution. Due so, currently there are no such laws having direct relations with Hybrid War perpetrated by a country. Also these contradictions between laws (UN charter 51, Washington Treaty with 2004 Israeli Case and the ICC Statute criminalizing only inter-state aggression) are seen as the mending procedure showing a strong need of laws that specifically aim at Hybrid War.

 

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[9] Schroefl, Hybrid Actors, Tactical Variety: Rethinking Asymmetric And Hybrid War, 11.

 

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[15] Michael Lee Lanning, The American Revolution 100: The Battles, People, and Event of the American war for independence, ranked by their significance (nook book)

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