Will Russia Use “Lawfare” to Pave the Way for an Invasion of Eastern Ukraine?

My assumption has been that Vladimir Putin’s threatening moves against eastern Ukraine are merely a bluff; that Crimea is what he wants, and that he plans to draw back from an invasion of eastern Ukraine while retaining control over Crimea, thereby allowing President Obama’s Team of Nitwits to pat themselves on the back and claim a draw in their confrontation with Russia.

But the text that follows, written by a professor at a Ukrainian university and forwarded to us by a reader, paints a more dire picture. If this sophisticated Ukrainian observer is correct, Russia likely will be able to persuade a Ukrainian court to declare the current government of Ukraine illegal, paving the way for a Russian occupation of the eastern portion of the country. Further, these events may unfold quickly, beginning day after tomorrow.

What follows may look lengthy, but it is a quick read and I urge you to follow it through to the end:

Last Wednesday, I attended the “Emergency Economic Summit for Ukraine” (an event organized by the new Minister of Economic Trade and Development and the European Business Association), and heard former Putin advisor Andriy Ilarionov speak. He was very forceful and blunt in his appraisals of the current confrontation between Russia and Ukraine: whether we want to admit it or not, a war between the two countries has already begun, and it will not end until “Maidan” as a concept (i.e. embodying direct democracy, people-power, and a western values orientation) is destroyed. Ilarionov worked with Putin for many years; he claims to understand the mindset of the Russian President; he says Putin is determined to destroy Ukraine, and to correct what he sees as the grave historical mistake of 1991 (i.e. Ukrainian independence). …

Taking stock: at the moment we have a build-up of Russian military personnel and equipment on Ukraine’s eastern borders and a former advisor to Russia’s President warning of an imminent invasion of mainland Ukraine; the Ukrainian military is responding accordingly. Yesterday we had significant pro-Russia demonstrations in the eastern Ukrainian cities of Donetsk, Luhansk and Kharkiv, and violent clashes with pro-Ukraine demonstrators that led to several deaths and multiple injuries. Today we had a “referendum” in Crimea whose result (regardless of whether it is recognized internationally or not) has confirmed Putin’s main message to the world: that a majority of Russian-speaking Ukrainian citizens evidently have a deep affinity for Russia, and reject the post-revolutionary Kyiv government (which the Kremlin calls “fascist” and “anarchic”). There is no reason why Putin’s argument should not be extended beyond Crimea, and indeed, I am convinced that it will be used as an excuse for continued invasion by Russia further into Ukraine (specifically in the east and south) within the next 4-10 days.

I’ll try to explain why I believe military action is imminent below, but a word of warning first: the next few paragraphs represent a “dive” into details of Ukrainian jurisprudence. As with all things legal, the issues are somewhat convoluted – please bear with me.

On Wednesday, Donetsk-based lawyer Volodymyr Olentsevych filed a law suit in Ukraine’s High Administrative Court challenging two post-Yanukovych Parliamentary resolutions (Postanova’s): “On the President of Ukraine’s voluntary renunciation of his constitutional duties and appointment of extraordinary elections of the President of Ukraine” (passed February 22), and “On the assignment of responsibilities of Acting President to the Chairman of the Parliament of Ukraine” (adopted February 23). The legitimacy of both of these resolutions is highly questionable from the standpoint of the letter of the law (although certainly not its spirit), and so according to most legal experts, Mr. Olentsevych’s lawsuit is likely to be successful. His hearing has been scheduled for Wednesday March 19.

If this lawsuit is successful, the current Kyiv government would immediately become technically illegitimate. Last Tuesday, during his press briefing in Rostov-on-Don, Yanukovych was unequivocal about two things: firstly, that he continues to consider himself not only the legitimately elected President of Ukraine, but also the legitimate Commander-in-Chief of the Armed Forces of Ukraine, and secondly, that he plans to return to Kyiv “sooner rather than later”. At the time, to most viewers of the press briefing, both of these claims sounded outrageous. But in the context of a legal challenge to the legitimacy of the Acting President Turchynov, and of all of the decisions taken by Ukraine’s Parliament since the former President’s flight from Kyiv, Yanukovych’s grandstanding sounds downright disturbing.

As if to foreshadow the expected legal delegitimization of the post-revolutionary Kyiv government, during his briefing, Yanukovych promised to file legal challenges in US courts against the Obama administration (!). He went to great pains to remind the US government of its own laws which prohibit the provision of aid to a foreign government that has come to power illegally. At the time, this challenge sounded laughable, but with the prospect of a legitimately filed lawsuit in a formally legitimate Ukrainian court, with a predictable result that potentially delegitimizes the current Kyiv government, Yanukovych’s threats no longer sound hollow.

The Kremlin (with Yanukovych as its puppet) seems to understand the reality of litigious America where every government decision is scrutinized by a lawyer, and where military interventions require formal legal approval. Those of us who have watched the television show “JAG” understand the extent to which legal fetishism can tie the hands of American commanders in field situations.

Indeed, the Ukrainian Parliament seems to understand the threat and consequences of well-planned legal action also. On Thursday, legislators passed a change to Ukraine’s judicial code allowing for appeals of decisions of the High Administrative Court to be filed to the Ukrainian Supreme Court (a body that apparently is less stacked by Yanukovych cronies). However, even if such an appeal is filed, a propagandist press story undoubtedly will be “spun” by the Kremlin immediately after the initial court decision: the world will be told that even according to Ukraine’s own courts, the Kyiv government is illegal, and the Ukrainian army has no legitimate commander-in-chief other than Yanukovych.

To understand the gravity of this threat, some explanation of legalistic details is in order:

1)      Ukraine’s judiciary is organized according to a system of specialized courts. As a result, the Supreme Court of Ukraine is not necessarily the highest court of the land on all issues. Suits that involve petitions by citizens against rulings or decisions of government bodies are heard by the High Administrative Court – an institution whose judges were appointed during the Yanukovych era, and are believed to remain loyal to Ukraine ‘s ousted President. As of Friday, High Administrative Court decisions may be appealed to the Supreme Court, but an argument could presumably be made that such an appeals procedure applies only to cases filed after Parliament’s Friday vote, and not before.

2)      Volodymyr Olentsevych is the same lawyer who filed a complaint in 2010 against the decision by former President Yushchenko to award the order of Hero of Ukraine posthumously to Stepan Bandera (leader of the WWII era Organization of Ukrainian Nationalists) and Roman Shukhevych (leader of the WWII era UPA – Ukrainian Insurgent Army – which fought both the Germans and Soviets). Mr. Olentsevych’s complaint was based on the fact that neither Bandera nor Shukhevych were ever citizens of post-1991 Ukraine, and therefore were ineligible to receive the country’s highest award. The suit was successful, and Yushchenko’s award was rescinded in April 2010 (3 months after the election of Yanukovych) – a decision that was publicly lauded by the Party of Regions and by the Kremlin.

3)      On February 22, Ukraine’s Parliament was careful not to remove President Yanukovych from office (i.e. it avoided the lengthy and unpredictable impeachment procedure), but rather it voted to accept his “voluntary renunciation of duties” – justifying such a decision on the basis of his having fled Kyiv during a crucial crisis. However, Ukraine’s Constitution is quite explicit, and it does not allow for a President to be “relieved of his duties”, nor does it allow for the appointment of an “acting President”. According to Article 108 of the Constitution, a President may lose office due to one of four contingencies: a) resignation that is personally announced from the tribune of the Verkhovna Rada, b) declaration of medical incapacity, c) impeachment, d) death. With such clarity, and given its function as a strict interpreter of statute law, the High Administrative Court has no choice but to rule on March 19 to cancel the resolutions of Parliament which effectively removed Yanukovych from office. Furthermore, the Court is very likely to rule that Turchynov abused his power as Chairman of Parliament – an offense that is punishable under Ukraine’s Criminal Code! What basis will be left for an appeal of such a ruling is difficult to predict.

4)      As if to make sure that there is no doubt as to the outcome of the High Administrative Court’s ruling on March 19, the case has been assigned to Justice Zaytsev – a person associated with the former Yanukovych administration’s primary legal counsel Andriy Portnov, who in turn is believed to be a close confidant of Viktor Medvedchuk, head of the Presidential Administration under President Kuchma, and close personal friend of President Putin (Putin is the godfather of Medvedchuk’s daughter). Last year Justice Zaytsev presided over the hearings that led to the stripping of Serhiy Vlasenko’s (Yulia Tymoshenko’s lawyer) parliamentary mandate.

All of the above has raised very serious alarm bells in Kyiv. Suspicions that Mr. Olentsevych’s court filing is part of a larger conspiratorial plan, have been fueled by the fact that a parliamentary motion was tabled on the same day as his court filing by MP Yevhen Murayev (another suspected Medvedchuk associate) according to which, Presidential elections are to be postponed from May to December (as agreed in the February 21 agreement with the opposition signed by Yanukovych – a document that Russian officials have repeatedly referred to as the only basis for “negotiations and compromise”). The motion has not been brought to a vote yet, but if debated after the March 19 Administrative Court ruling, it may become the formal catalyst for the revival of the Party of Regions, and (more importantly) lead to deadlock and a breakdown of the post-Yanukovych majority coalition.

As if to add fuel to the fire of conspiracy theorists, in tandem with Mr. Olentsevych’s court filing, the Party of Regions announced that it would hold a Party congress on March 22 (three days after the scheduled hearing). Formally, this congress is to elect a new Party leader, now that former Prime Minister Azarov has effectively resigned (he fled Ukraine after being relieved of his post by Yanukovych). Currently, the logical frontrunner for the party leadership is Serhiy Tihipko, but if a court ruling were to delegitimize the Parliamentary resolutions that Tihipko had supported, perhaps a more Kremlin-friendly party leader could be found. The Party of Regions remains a potent organizational force in the east and south of the country, so control over its leadership would certainly be key to building political support in these regions if they were to separate according to the same model as Crimea.

The Russian Duma is expected to vote on formally admitting Crimea into the Russian Federation on Friday March 21 – two days after the expected Ukrainian court ruling, and one day before the Party of Regions congress.

In my opinion, if sufficient demonstrations of support for Russian annexation can be staged by FSB operatives in Donetsk, Kharkiv, and Luhansk during the next few days (i.e. in the wake of the Crimean “referendum”, and supposedly in euphoric support for Putin’s policies of “gathering the Russian lands”), an invasion of mainland Ukraine can be expected immediately after the March 19 court ruling. If demonstrations are insufficiently graphic, the invasion may be postponed until after the weekend, when larger crowds will inevitably gather. However, I have no doubt that an invasion will happen early next week (i.e. March 25-26) at the latest. To wait any later would allow the Ukrainian armed forces to become better organized and mobilized.

Russia’s invasion of eastern and southern Ukraine will be “justified” by the Kremlin as an operation aimed at protecting the interests of Russian-speakers from an illegitimate, fascist, intolerant and anarchic post-revolutionary Kyiv government. However, make no mistake, this is no “humanitarian” operation: Putin seeks to destroy Ukraine’s revolution, and this cannot be done without at least bombing (if not actually invading) Kyiv. He will not hold Ukraine’s capital, but he can cause an awful lot of damage and destruction here. It is for this reason that my wife and I have decided to evacuate our family to a location outside of Kyiv on March 19. I pray that we will be away for just a few days. I also pray that my predictions are wrong:
 
God help us!

If events unfold as this professor predicts, God will indeed be Ukraine’s best hope. Neither the European Union nor the Obama administration is likely to be of much use. One question: the writer discusses a hearing on March 19, and he expects a ruling the same day. Maybe that is how things work in Ukraine; here in the U.S., we would normally expect a delay, often a considerable one, between the hearing and the subsequent ruling by the court.

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