The Mystery of Mr. Yanukovych: The Legality of Russia’s Intervention in Ukraine

Mined area in Petrivske, Donetsk region, Ukraine, September 2016. Credit: OSCE/Evgeny Maloletka

By Ilya Akdemir

Recent developments regarding the legality of Russia’s intervention in Ukraine

Was Russia’s 2014 intervention in Ukraine and the subsequent referendum on the status of Crimea illegal under international law? Many believe so. While Russia has traditionally viewed the intervention as legally justified, recent statements by the ousted President Yanukovych and high-ranking Russian officials seem to contradict this position.

Russia’s legal justifications for the 2014 intervention in Ukraine

The legal justifications for Russia’s intervention are based on the letter of the Head of State of Ukraine at the time, Viktor Yanukovych. Yanukovych requested Putin and Russia’s Federation Council “to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine.” The letter, which was revealed by Russia’s UN Security Council representative, Vitaly Churckin, also speaks of an impending humanitarian disaster. It states that “the events in [Ukraine] . . . have placed Ukraine on the brink of civil war” and that the “people are being persecuted on the basis of their language and political beliefs.”

From the Russian perspective, the legal justifications for Russia’s military intervention are clear – Russia was invited by Ukraine’s legitimate and incumbent head of state to restore order and protect Russian-speaking minorities in Ukraine. Put simply, it’s a case of intervention by invitation.

Intervention by invitation – defined by the Institut de Droit International as the “direct military assistance by the sending of armed forces by one state to another state upon the latter’s request” – can be seen as one of the few exceptions to the general prohibition on the use of force in international law. The key element of any intervention by invitation claim is the validity of the “request.”

Questions regarding Yanukovych’s requesting letter have thus been framed in terms of Yanukovych’s legitimacy and status as the Head of State of Ukraine at the time of the request. In essence, the question is whether Yanukovych was a legitimate and incumbent head of state when he sent the letter requesting Russia’s assistance. If yes, his request justifies Russia’s intervention. If no, then Russia’s intervention is illegal under international law.

As a result, lawyers on both sides of the argument have focused on the question of Yanukovych’s legitimacy and status at the time that the letter was being written. According to Putin, Yanukovych was a democratically elected president at the time of the request, legitimate and incumbent, and therefore Yanukovych’s request is legal.

But recently, a sudden change occurred in the Russian narrative, which was noticed by Russian commentators but has largely been ignored elsewhere. Apparently, there was never any “request” at all.

Recent statements from ex-Presient Viktor Yanukovych and Putin’s Press Secretary Dmitry Peskov

On February 22nd, 2017, Yanukovych gave an interview to the Russian media in which he stated that he “never asked to send troops to Ukraine,” a substantial rift with the established narrative on the legality of the intervention. Furthermore, on March 9th, Yury Lutsenko, Prosecutor General of Ukraine, posted on his Facebook page an official letter he received from Russia’s Prosecutor General’s Office. The letter states that “any statement by Yanukovych requesting the use of the Armed Forces of the Russian Federation on the territory of Ukraine has not been received or considered by the President of the Russian Federation or the Federation Council.”

On March 16th, Putin’s Press Secretary, Dmitry Peskov stated that “no letter was officially submitted to the Russian presidential administration, [and] no such letter was registered in the administration.”

All these statements seem to point towards a change in Russia’s policy towards Ukraine. From an international legal perspective, however, the issue is also deserving of attention, as it gives rise to new questions regarding the legality of the 2014 Russian intervention.

First, if there was no request from Yanukovych – as Mr. Yanukovych’s comments seem to suggest – then Russia’s legal justifications for intervention in Ukraine based on the intervention by invitation exception are more uncertain than ever.

Second, if there really was no letter, what is the nature of the document Vitaly Churkin demonstrated at the UN? The minutes of the UN Security Council meeting clearly confirm that Churkin referred to the document as a “request” and “a letter [that] is signed by President Yanukovych.” Even if Russia’s officials didn’t view Yanukovych’s statement as a request for intervention, it is certain that Churkin tried to represent it as such.

It is important to note that the issue is still in development. On March 17th, 2017, Russia’s Foreign Ministry Spokesperson, Maria Zakharova, authored a post on Facebook stating that although there was a signed statement (not a letter) from Mr. Yanukovych, it was simply not registered in the Presidential Administration or the Federation Council.

Zakharova adds that “the statement was signed by the President of Ukraine, and read out to the UN Security Council as very revealing information about the situation in Ukraine, but no decisions were taken on it in the Presidential Administration or in the Federation Council of Russia.” If, however, no decisions were taken regarding the Yanukovych statement, the legal basis for the sending of troops to Crimea becomes less clear.

Further, it is inaccurate to say that no decisions were taken based on the “letter.” On March 1st, 2014, at the peak of the crisis, Russia’s Federation Council voted to approve Putin’s request to use Russia’s armed forces on the territory of Ukraine. The minutes of the discussions surrounding the vote show that Yanukovych’s invitation, which was apparently received by the Federation Council just an hour before the vote, played an important role in the decision to approve Putin’s request to send troops. Churkin later revealed the letter in the UN on March 3, 2014, two days after this vote.

March 16, 2017, marked the third year since Crimea voted to join Russia. Russia’s view regarding the legality of the intervention which resulted in the Crimean referendum has been relatively consistent throughout this period. However, novel developments, particularly statements from high-ranking Russian officials, pose new questions regarding the legality of the intervention.

This could, indeed, all be just a big mistake on the part of Russian representatives. Or perhaps, as some Russian commentators have pointed out, it’s a sign of an upcoming change in Russia’s approach towards Ukraine. What is certain however, is that, from an international legal perspective, these recent developments add further doubts to Russia’s narrative regarding the legality of the 2014 intervention in Ukraine.