Evidence confirming the presence of Russian soldiers in Eastern Ukraine is not a new occurrence. Western analysts were remarking, for example, the presence in the region of the T-72B3 tank, which is used exclusively by the Russian Army. The court document which will be covered in this article is a premiere in that the Russian Federation itself mistakenly recognized the presence of its troops.
Plausible deniability has been representing a political incentive for states since the turn of the seventeenth century. Back then, in the context of maritime privateering, if a ‘private’ undertaking that a ruler authorized was successful, s/he could claim a share in the profits. Otherwise, if the enterprise caused conflict with another state, the ruler could claim it was a private operation for which s/he could not be held responsible. However, states have been adapting their plausible deniability techniques and narratives, keeping them in trend with the emergence of the cyber realm and hybrid warfares. One of those states that have brought this tactic to a whole new level is Russia.
The Russian Federation uses plausible deniability in a panoply of ways both in the digital and the kinetic environment. In the first case, last year Moscow denied any ties with DarkSide, the hackers group behind the cyber attack against Colonial Pipeline. In the second one, Moscow builds up narratives denying any support for its proxy forces in occupied territories or any involvement in other states’ internal affairs. This has also been the case with the presence of the Russian troops in Eastern Ukraine. On the one hand, the United States and its allies have long said that thousands of Russian troops and large amounts of Russian equipment, munitions, and supplies are propping up separatist forces in Eastern Ukraine. On the other hand, the Kremlin has created a narrative from continuously denying such involvement, declaring that the situation in Donbas strictly represents an “internal” matter of Ukraine. Nevertheless, the Kremlin has been recently faced with an ironic situation: a court decision from Rostov-on-Don has admitted what Moscow was denying and the West was confirming.
Now, what does this judicial decision mentioning Russian military presence in Donbas mean from a legal point of view? What are the implications of this? First and foremost, the admittance of military stationing on Ukraine’s territory would provide proof that was lacking thus far and would allow the establishment of international responsibility of Russia for what has happened in the region in the past years (UN reports over 10.000 deaths in the confrontations in eastern Ukraine). This would be the key to bringing court cases against Russia for human rights violations or damages, cases which have been delayed so far for lack of sufficient proof.
Secondly, there are even more serious consequences that could follow from this discovery. Customary International Law establishes 3 principles of intervention that have to be respected by states: respect for territorial integrity, non-use of force, and non-intervention in internal affairs, principles which are also promoted by Article 2(4) of the UN Charter. Looking at these, it could be argued that the presence of foreign military personnel in Donbas goes against all of these principles: it denies the territorial integrity of Ukraine, uses force, and interferes with an internal struggle of another state. Support for armed groups from another state is considered as going against the prohibition of interference within the domestic affairs of another state, according to UN General Assembly Resolution 2625. Moreover, intervention in civil wars or local rebellion is unacceptable under the same rules of Customary International Law without the consent of the government faced with these events, approval which here is clearly lacking. Additionally, qualifying the situation as an intervention of actual military force instead of mere support for some insurgents puts the Russian Federation at the center of what might constitute an international armed conflict. This would inevitably lead to the application of International Humanitarian Law to the situation, thus changing the legal context.
What does this situation imply for Ukraine? It now has a clear-cut justification, provided by its adversary, to condemn the intervention of the Russian Army in the Self-Declared Republics of Donetsk and Luhansk. It can be used as a tool on an international level to unmask Russia’s involvement and to ultimately emphasize Ukrainian sovereignty over its eastern regions, which did not simply become autonomous only through diplomatic settlements, and through the local soldiers and volunteers, but also through the active military involvement of the Russian Federation. From a military and geopolitical point of view, the situation remains relatively the same, the only shift that might occur being that Ukraine could have a justification to demand more logistic support and equipment delivery from its NATO allies since now it can prove it is facing the Russian Army, and not just volunteers and separatists from the region.
In the case of the Russian Federation, denial has been the first reaction of its authorities, as the spokesman of the Kremlin, Dmitry Peskov, declared it a mistake of the people who wrote the court text, who were in fact referring to humanitarian aid, and denied the presence of Russian divisions in the region. Russia’s immediate response will depend on how vehement Ukraine’s address to this document will be at the international level. This is part of a fairly recognizable modus operandi specific to Russian authorities regarding the involvement of its soldiers in foreign territory (especially in post-Soviet republics): deny and continue denying, until the international condemnation fades away, and then admit involvement.
This was exactly the tactic used by the Russian president, Vladimir Putin, in the case of Crimea’s annexation, when initially in 2014 any involvement was denied, while a year later, in 2015, when the condemnations regarding the annexation were diminishing, he admitted that Russia is and has been in Crimea since the start of the operation. Considering that the State Duma – the lower, but the most important Chamber of the Parliament of the Russian Federation – will discuss a proposition of recognizing the Donetsk and Luhansk People’s Republics, this same approach used in Crimea might be initiated in Eastern Ukraine sooner than one might think.