The Interplay between Ukraine’s Domestic Legislation on Conflict and Uncontrolled Territories and its Strategic Use of ‘Lawfare’ before Russia’s 2022 Invasion of Ukraine – A Troubled Nexus?

Abstract

Russia’s full-scale invasion of Ukraine on 24 February 2022 can be seen as a culmination of eight years of its aggression against Ukraine, including its annexation of Crimea in March 2014 and the control of the two ‘People’s Republics’ in Donbas. Before the invasion, the Ukrainian authorities had actively expressed their politico-legal stance on the conflict, using lawfare against the Russian Federation, e.g. at the European Court of Human Rights (ECtHR), the International Court of Justice (icj), and the International Tribunal of the Law of the Sea (itlos). In this context, the paper explores the interplay between Ukraine’s domestic legislation regarding the annexation of Crimea and Russia’s control of the People’s Republics in Donbas prior to the invasion, and Ukraine’s use of lawfare against Russia with a focus on policy and legal coherence. It is demonstrated that, while Ukraine’s lawfare strategy regarding Crimea had been in line with domestic legislation, Russia’s use of proxies in eastern Ukraine and the challenges of the Minsk peace process led to incoherence between Ukraine’s domestic laws and its use of lawfare. Though Russia’s 2022 invasion of Ukraine is a game-changer, both for Ukraine’s domestic legislation and its use of lawfare, the analysis contributes to an understanding of the nexus between domestic and international law in Ukraine prior to the invasion and explores the implications such a nexus will have for Ukraine’s future lawfare against Russia, including the most recent icj case relating to the interpretation, application, and fulfillment of the 1948 Genocide Convention.