Unmasking Russia’s large-scale lawfare attack
Speech by Ariana Gic at the discussion panel “Rogue Actors Against Democracy” at 2021 Joe Biden’s World Summit for Democracy.
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Lawfare conducted by rogue actors against their targets is a rather poorly covered, analyzed, and understood area.
Law is not a sexy subject. For most people, it’s boring, and too nuanced to make any easy sense of it. However, I would dare to say that lawfare is in fact the most important tool in the arsenal of authoritarian regimes.
Speaking simply, lawfare is when the power of law is used for evil.
Authoritarian regimes adore using legitimate legal tools for attacking their designated enemies within and outside their countries.
For them, lawfare is a way to provide “noble” cover for their malicious agendas.
Lawfare provides an appearance of legitimacy to their actions pursuing nefarious agendas.
Lawfare offers persuasive justifications for their rogue actions.
Lawfare also helps authoritarians mold an alternative reality, which after being amplified by propaganda, displaces perceivable reality with a fake hologram.
I believe that nothing illustrates this better than the use of lawfare by Russia. Moscow is a true master of lawfare! It always puts in an enormous effort to give its rogue actions a varnish of legality.
We have two good examples which illustrate how much Russia was able to achieve through lawfare efforts:
• In Syria, Russia turned the tables on the fate of the dictator Bashar Assad under the cover of lawful assistance to the “legitimate” government of Syria. Russia conducted a massive lawfare effort to shelter Assad’s regime from international action, including abusing its veto power to quash all initiatives at the United Nations Security Council seeking to stop Assad’s murderous regime.(And all along the way, Russia has been committing war crimes without any repercussions); and the second example is Belarus
• Russia is consuming Belarusian sovereignty within a legal framework of a treaty establishing a Union State between the countries.
However, it is the case of Ukraine where Russia’s lawfare comes through as a mighty weapon in Moscow’s undeclared, multi-vectored, hybrid, interstate war on Ukraine.
Russia has managed to craft a legal paradigm which serves as a sort of wrapping for an alternative reality that Moscow operates in while waging war on Ukraine.
Very few people are aware that Russia has been waging lawfare on Ukraine since Ukrainians voted for their independence from the Soviet Union in a national referendum in 1991.
Over the years, by using coercion, Moscow was able to impose on Kyiv a number of bilateral agreements which made Ukraine extremely vulnerable to future Russian aggression. This lawfare strategy climaxed in the Kharkiv Treaty which extended the lease of Russia’s Black See Fleet in Crimea, Ukraine. The Treaty was signed by Ukraine’s traitor runaway ex-president Yanukovych who is currently hiding from justice in Russia under Putin’s protective custody.
The Kharkiv Treaty was a legal tool which enabled the Russian invasion of Crimea. It took power away from the Ukrainian government to effectively control what the Russian military did in Crimea. Russia received completely legal cover for its subversion on Ukraine’s territory which paved the way for 2014 occupation and the following attempted annexation.
Since the beginning of Putin’s undeclared war on Ukraine in February 2014, Russia’s lawfare has been a core element of Moscow’s strategy of crushing Ukraine’s sovereignty. It allowed Moscow to maintain a pretence of lawfulness of its actions in Ukraine and deny any wrongdoing.
Russia’s present day lawfare attack on Ukraine is being conducted on many legal front lines.
At the core of Russia’s lawfare is a weaponized malign misinterpretation of the internationally recognized right of nations to self determination. Moscow abused this legal concept to claim, at first, that Crimeans were a separate “nation”, and then that local residents of parts of Ukraine’s Donetsk and Luhansk regions were also different separate nations who were exercising their right to be independent from Ukraine.
Amplified by Kremlin propaganda about regional separatism in Ukraine, this legal strategy has been very effective in shielding Russia from direct responsibility for waging war on Ukraine.
It allowed Russia to camouflage its aggression while at the same time justifying it. As we all know, the official position of Russian government has been that there is a “civil war in Ukraine” which was “caused by a Western sponsored coup d’etat”. Moscow claims Russia is simply protecting the Russian speaking population from extermination by the “illegitimate”, “nazi” government.
But the main front line of Russia’s lawfare is the Minsk Accords. Putin negotiated terms in the agreement highly favourable to Russia. The terms of the Minsk accords are extremely dangerous for Ukraine’s future: Moscow’s interpretation are absolutely disastrous, but even if the order of the steps of the accords are according to the Ukrainian interpretation, they create serious risks for Ukrainian state.
One of the principle objectives Russia has been pursuing through the Minsk accords is to get Ukraine to recognize Russia’s occupation administrations in Donbas – often erroneously referred to using the Kremlin’s language of “People’s Republics” – as independent entities. Such recognition would whitewash Russia’s role as the aggressor in the war, and validate Kremlin lies about “civil conflict” in Ukraine. Moscow desperately wants to legally legitimize their occupation regimes as “separate nations” “independent from” Ukraine.
(It must be said here that, unfortunately, the ill-devised structure of the EU sanctions regime, which in part is tied to Minsk accords, has inherent deficiencies that contribute to weakening Ukraine’s position vis-a-vis Moscow.)
Considering the time restrictions of our panel, I will just quickly shortlist a few other examples of Russia’s lawfare attacks on Ukraine:
– A letter by ex-President Yanukovych requesting Russia’s assistance to restore his power was taken from the same playbook as Russia’s assistance to Assad in Syria, (and potentially could have had similar consequences).
• Extraterritorial and unlawful prosecution of Ukrainian citizens deigned to intimidate any resistance in Russia occupied territories.
• Russia has flooded the European Court of Human Rights with over 6,000 cases against Ukraine. This legal spamming is Russia’s attempt at whitewashing its responsibility for shooting down passenger flight MH17, and numerous other war crimes it has committed in Ukraine.
• A number of decrees by the Russian government which pursue de-facto annexation of Ukraine’s Donbas, starting with simplified citizenship procedure and ending with the most recent legal attack by Putin’s decree on goods originating from occupied territories entering Russian market.
• And most recently, on December 5, Denis Pushilin, who received a United Russia party card from Medvedev himself said that all “Donetsk Republic citizens” will be granted citizenship. Pushilin is the head of the fake “Donetsk People’s Republic” – i.e. Russia’s occupation administration in Donetsk. This is de facto annexation, and a classic example of lawfare. It also represents a major escalation of the war and a another clear violation of the Minsk Accords.
Russia is acting as a highly cynical, intelligent, sophisticated, devious, and murderous criminal using the law as a shield for his own criminal pursuits. What it is even more tragic is that Russia is a criminal who sits on a jury of his own trial because of Russia’s elevated standing in international organizations, especially its veto power in the United nations Security Council.
Thanks to its lawfare strategy, Moscow has achieved considerable results in manipulating the world’s response to Russia’s aggressive actions. To my great disappointment, Russian legal positions have been largely embraced in the formal positions of Western governments. Until today, not a single Western government has formally declared Russia as an aggressor state responsible for waging unlawful interstate war on Ukraine despite Kyiv’s appeals for such declaration validating the truth of Russia’s war on the country.
Russia continues to lie in order to deny its role as an aggressor state, playing the role of a wrongly accused party, and our governments in the West are largely playing along with Russian lies out of fear of taking real and meaningful action against Moscow. It could have been said in the earliest days of the war that it was also to keep the option of a face saving exit from the conflict available for Putin, but almost eight years later, this surpasses farce.
POLICY RECOMMENDATIONS:
Western governments know very well what actions are required to stop Russia’s aggression. What is missing is political will, largely (though not exclusively) because there is a lack of real appreciation that Russia is the main threat to global peace and democracy. We must defend the future of our democracies by taking meaningful action to stop the rogue regime in the Kremlin.
Our governments should finally understand that there is no peaceful or secure future with imperialist, revanchist Russia in it. Putin cannot be allowed to turned back the clock and drag the world back into the abyss of “might makes right”. Our actions must be guided by a vision of the future where there is no place for the Putin’s of this world.
We need policies based on the truth of what Russia is today.
Russia must be treated as other rogue nations that threaten world peace. Appropriate policies must be pursued to isolate it, deprive it of resources for hostile actions, and repress its aggression with military might where necessary.
A good start is to declare Russia an aggressor state in order to take away its power to judge its own actions in international organizations.
Russia should also be designated as an outlaw nation, and a state sponsor of terrorism.
Making these declarations will entirely change the paradigm of resisting Russia’s aggressive actions. Our governments will be able to go after Russian oligarchs and organizations acting as extensions of the Russian government as well as other accomplices of the Kremlin’s aggressive and subversive actions in the West.
Our government should aggressively start going after Russian officials responsible for violations of human rights and gross violations of international law. Those responsible for war crimes should be declared war criminals, and submitted to the International Criminal Court for prosecution.