Illegally evading attribution? Russia's use of unmarked troops in Crimea and international humanitarian law.

• Author: Gillich, Ines

ABSTRACT

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was no valid consent given justifying an "intervention by invitation." The Article will argue that the principle of distinction under IHL is not violated since it requires only that combatants should be distinguishable from the civilian population but does not require a link between the combatant and a particular party to the conflict. Furthermore, it will be demonstrated that IHL regarding military uniforms leaves states a broad area of discretion as to the appearance of a military uniform and does not oblige combatants to visibly disclose their nationality by wearing emblems or insignia. This Article will also argue that the use of unmarked soldiers in the case at hand does not amount to illegal perfidy under IHL but--absent clear legal provisions and noticeable examples from state practice--must be regarded as a lawful ruse of war. Lastly, the final Part will consider whether it is wise to amend the current legal rules in order to prohibit the use of unmarked soldiers in similar situations arising in future armed conflicts and will spell out a recommendation.

TABLE OF CONTENTS I. INTRODUCTION II. THE 2014 CRIMEAN CRISIS III. APPLICATION OF IHL TO CRIMEA 2014 A. Applicable IHL for Russia and Ukraine B. Internationalization of armed conflict in Crimea 1. Russian involvement and internationalization a. Attribution of nationality to forces in Crimea b. State sponsorship and attribution of conduct of forces 2. Criteria for finding of armed conflict 3. Intervention by invitation. IV. UNMARKED ARMED FORCES UNDER IHL A. Principle of distinction B. Customary international law on emblems and uniforms C. Standards for perfidy. V. CONCLUSION I. INTRODUCTION

The Crimean Crisis of February and March 2014, which eventually culminated--under the sharp protest of western states--in the incorporation of Crimea into the Federal Republic of Russia, marked for Ukraine a key event in the course of its still young history as a sovereign state. It also confronted the international community of states with barely foreseeable challenges to fundamental principles of international law, such as the sanctity of the principle of sovereignty and territorial integrity. The events that occurred in Crimea in February and March 2014 also pose questions to fundamental principles of the laws of war or International Humanitarian Law (IHL). This Article will analyze one of them: it explores the question of whether the use of unmarked troops, meaning uniformed military troops without nationality insignia, in circumstances like those arisen in Crimea, violates IHL.

Beginning in late February 2014, unmarked military personnel suddenly appeared in Crimea and, alongside Crimean "self-defense" forces, subsequently took control over key strategic and military facilities in the peninsula. The unexpected appearance of these unmarked soldiers--referred to by some commentators as the "little green men scenario" (1)--left both the Ukrainian authorities and western states puzzled about the affiliation of these troops. Without any doubt, these unmarked soldiers played a critical role in Crimea's fate.

In order to address this problem, this Article first gives a brief overview of the background of the 2014 Crimean Crisis within its broader historical and political context (Part II). The following legal analysis (Part III) then begins with a classification of the nature of the conflict in Crimea for the purposes of finding the applicable legal framework. It will be established that an international armed conflict between Ukraine on the one side and Ukrainian rebels and Russia on the other side exists. It will be argued that the unmarked soldiers are attributable to Russia for the purposes of internationalizing the conflict because those soldiers are Russian special forces and, alternatively, Russia exercises control over them. Furthermore, there is no valid consent given by the Crimean local authorities and the Ukrainian President to an intervention by invitation, which would prevent the conflict from becoming internationalized. The legal analysis then goes on to identify whether substantive norms of the law of international armed conflicts are violated by the use of unmarked soldiers (Part IV). The analysis focuses on central principles of IHL governing the conduct of the parties to an armed conflict: the principle of distinction between combatants and civilians, the rules regarding military uniforms, and the prohibition of perfidy as contrasted to lawful ruses of war. The legal analysis will conclude that none of these principles are violated in the case at hand. This is because the current framework of IHL provides only vague standards and does not clearly prohibit the use of unmarked soldiers. The final Part will discuss whether this legal gap should be filled by amending the current rules of IHL (Part V).

2. THE 2014 CRIMEAN CRISIS

   The Crimean Peninsula, which is connected with the southern part of the Ukrainian mainland by a narrow strip of land (Isthmus of Perekop), occupies a strategically important location on the northern coast of the Black Sea. On its eastern border, it is separated from the Russian region of Kuban by the Strait of Kerch. Today, Crimea is populated by an ethnic Russian majority and a minority of ethnic Ukrainians and Crimean Tatars. Throughout its history, Crimea has always been of geostrategic interest to various outside forces. (2)

   In 1783, Crimea became part of the Russian Empire and, with the end of the Russian Empire in 1917, a sovereign state until 1921 when it was incorporated into the Soviet Union as the Crimean Autonomous Soviet Socialist Republic. In 1945, after its liberation by the Red Army from German occupation during WWII, Crimea became an administrative region of Russia (the Crimean Oblast). (3) In 1954, to the surprise of many political commentators, Nikita Khrushchev, Premier of the Soviet Union, gave the Crimean Oblast to the Ukrainian Soviet Socialist Republic. (4)

   With the formal dissolution of the Soviet Union in 1991, Ukraine gained sovereignty. Crimea remained part of Ukraine but was granted significant autonomy, including the right to have its own constitution and legislature. In 1999, the "Partition Treaty on the Status and Conditions of the Black Sea Fleet" between Ukraine and Russia entered into force. (5) Under this treaty, the Black Sea Fleet, which was located in the Crimean peninsula at the time, was partitioned between Russia (81.7 percent) and Ukraine (18.3 percent), with Russia maintaining the right to use the Port of Sevastopol in Ukraine for twenty years until 2017. The treaty also granted Russia the right to station up to 25,000 troops and naval personnel, twenty-four artillery systems, 132 armored vehicles, and twenty-two military planes on its bases in Crimea. (6)

   In late 2013, after Ukrainian President Yanukovich declined to sign a trade and cooperation agreement with the European Union, massive and violent demonstrations began in Kiev and quickly spread out to other parts of Ukraine. On February 21, 2014, Yanukovych fled Kiev. One day later, he was removed from office, and an interim government was installed. (7) Russia claimed the new government as illegitimate. (8)

   As from February 27, 2014, Russian-speaking armed personnel in uniforms without insignia and nationality emblems suddenly appeared in Crimea. (9) These troops gradually seized control over key military and governmental buildings as well as other strategic facilities and raised Russian flags. (10) They also surrounded Ukrainian military bases hindering Ukrainian soldiers from leaving their stations. (11) While these unmarked men mainly referred to themselves as "Crimean self-defense forces," they occasionally answered to journalists that they were Russian special forces. (12) According to Human Rights Watch, at least parts of these units were Russian personnel. (13) They were spotted using military equipment registered for the Russian Black Sea Fleet in Crimea. (14)

   The following events then came thick and fast. In a UN Security Council meeting on March 1, 2014, the representative of Russia asserted that the Prime Minister of Crimea, supported by Mr. Yanukovych, had requested the Russian President for assistance to restore peace in Crimea. (15) On the same day, the Russian Federation Council, approving a request from President Vladimir Putin, authorized the use of armed force in Ukraine. (16) Within the next few days, the number of Russian naval personnel stationed at the Black Sea Fleet was increased. (17) On March 3, 2014, the Council of the European Union condemned what happened as a clear violation of Ukrainian sovereignty and territorial integrity by acts of aggression committed by the Russian armed forces as well as the authorization given by the Russian Federation Council for the use of the armed force on the territory of Ukraine. "The E.U. called on Russia to immediately withdraw its armed forces to the areas of their permanent stationing, in accordance with the [Black Sea Fleet Agreement]." (18)

   In a live address on Russian television on March 4, 2014, Russian President Putin denied that the unmarked soldiers in Crimea were Russian forces and qualified them as "pro-Russian local self-defense forces." (19) Similarly, the Russian Minister of Defense dismissed reports about the...