Crimea and Ukraine 2014: A Brief Reflection on Russia's 'Protective Interventionism'

JURIST Guest Columnist Sascha-Dominik Bachmann of Bournemouth University in the United Kingdom argues that while their recent annexation of Crimea and apparent willingness to use military force in Eastern Ukraine, the prospect of a Ukrainian civil war has diminished the need for Russia to engage in an overt and open military intervention—at least for the time being—yet it remains to be seen if such will result in an end to the use of military force in the region ...

Russia's annexation—or reannexation—of Crimea in April 2014 following weeks of covert and open military operations on the peninsula is—for all intensive purposes—a fait accompli and unlikely to be revised anytime soon. Having achieved this first 'victory'—in the eyes of the Russian public at least—Russia has focused on the parts of Ukraine where the Russian-speaking minority is the de facto majority—such as Donetsk, Luhansk and recently cities like Odessa. Whether this practice of 'protective interventionism' advanced by Putin's Russia—as exemplified by its 2008 invasion of Georgia—will lead to overt military conflict centered around Eastern Ukraine remains to be to be seen. However, the prospect of civil war in Ukraine has removed any immediate Russian necessity for an open military intervention at this stage.

While Ukraine's unelected interim government has increased its efforts to quell pro-Russian unrest in its eastern territories, Russia has been able to exploit the situation and basically turn the tables on Kiev by characterizing the growing number of separatist killed as an illustration of the government's disproportionate use of force against Ukrainian citizens of Russian origin and classifying it as a 'punitive operation'. The de facto break up of the Ukraine has already begun, a stark reminder of the break up of the old Yugoslavia in the 1990s and the ensuing bloody Civil War that resulted in massive civilian casualties. Russia seems to be achieving its strategic and economic objectives: the weakening of a pro-Western Ukraine, the isolation of critical armaments industries [PDF] located in the eastern parts of the country—which possess a potential opportunity of being utilized further if any negotiated division of the country were to take place—and finally a reassertion of Russian influence along the fault lines of the century old Russian state influence that had become questionable after the collapse of the Soviet Union in 1991.

The involvement of Russian military personnel in the Crimean intervention and annexation qualifies as a prohibited use or threat of force as defined by Article 2 Section 4 of the UN Charter and may—academically speaking—even amount to a Crime of Aggression per the amended 8 bis provision of the International Criminal Court [ICC] Statute [PDF]—but the 2011 Kampala Amendments [PDF] do not come into force until after 2017.

An often overlooked possibility is that Moscow's modus operandi with respect to Crimea and the Ukraine is the waging of "New Wars" along asymmetric lines of conflict, which constitute [PDF] "a dichotomous choice between counterinsurgency and conventional war"—known to military lawyers as 'hybrid threats'. The term 'hybrid threats' refers to multiple dimensions of possible threats to national and global peace and security, and was coined during the 2006 asymmetric conflict between Israel and the Hezbollah in Lebanon. As recognized [PDF] by NATO in 2010, hybrid threats are defined as "those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives." NATO has also determined that a "description of hybrid threats within a complex emerging security environment ... should be able to address hybrid threats within the steady state environment and be capable of conducting early threat identification and continuous monitoring/management in addition to crisis management." Yet another NATO report in 2011 describes these threats in greater detail, saying:

"Admittedly, hybrid threat is an umbrella term, encompassing a wide variety of existing adverse circumstances and actions, such as terrorism, migration, piracy, corruption, ethnic conflict etc. What is new, however, is the possibility of NATO facing the adaptive and systematic use of such means singularly and in combination by adversaries in pursuit of long-term political objectives, as opposed to their more random occurrence, driven by coincidental factors."
This same report explains that hybrid threats
"are not exclusively a tool of asymmetric or non-state actors, but can be applied by state and non-state actors alike. Their principal attraction from the point of view of a state actor is that they can be largely non-attributable, and therefore applied in situations where more overt action is ruled out for any number of reasons."
Hunstok—a Norwegian Army Brigadier General, Co-Chairman of the Deployable Joint Staff Element at NATO ACT and CHT/COIN Director— explained that NATO was particularly interested in potential hybrid threat actors that cross borders and evade categorization as a defense, security or law enforcement threat. Such threats, he emphasized [PDF] on another occasion, "go beyond conventional weaponry and proliferation and now include clear links between piracy, cyber terrorism, threat finance, trafficking and social networking by non-state actors and terrorists." Others have characterized such an actor as "a practitioner of unrestricted operational art that aptly combines regular and irregular capabilities simultaneously into a unified operational force to achieve strategic effects." This follows the hybrid threat definition [PDF] of the U.S. Army´s Operation Doctrine 2011, which holds such to be: "the diverse and dynamic combination of regular forces, irregular forces, criminal elements, or a combination of these forces and elements all unified to achieve mutually benefitting effects." The U.S. Department of Defense had already discussed [PDF] the military's doctrinal approach in 2010. In June 2012, NATO decided to cease work on CHT—Countering Hybrid Threats—at its organizational level but continued to encouraged its member states and associated NATO Excellence Centres to continue working on hybrid threats. Given NATO's inability or reluctance to address the Ukrainian situation with military force as well as such force residing clearly outside of any NATO Non-Article 5 authority, this decision might turn out to have been made prematurely.

Sascha-Dominik Bachmann is an associate professor of law at Bournemouth University in the United Kingdom where he primarily teaches human rights law, law of war, criminal law and research methodology. Professor Bachmann is a Lieutenant Colonel in the German Army Reserves and has served on three peacekeeping missions in the Balkans while completing his LL.D at the University of Johannesburg, South Africa. Moreover, he was NATO's Rule of Law Subject Matter Expert (SME) during NATO's 2011 Hybrid Threat Experiment and is part of an international research project that investigates the scope of eco-threats as part of larger "hybrid threats to global peace and security." Professor Bachmann has also received US military training as a mountain warfare officer with the 23rd marines with a US-German foreign officer exchange program. He published a book in 2007 titled Civil Responsibility for Gross Human Rights Violations: The Need for a Global Instrument and has been published in numerous legal journals. Some other aspects pertaining to hybrid threats were addressed in a previous publication, jointly with Joachim Sanden, of his "Countering Hybrid Eco-threats to Global Security Under International Law: The Need for an Comprehensive Legal Approach" which was published in the Liverpool Law Review 33 (3), 2013

Suggested Citation: Sascha-Dominik Bachmann, Crimea and Ukraine 2014: a brief reflection on Russia's 'protective interventionism' before the backdrop of NATO's new security concept of Hybrid Threats, JURIST - Forum, May 18, 2014, http://jurist.org/forum/2014/05/sascha-bachmann-ukraine-hybrid-threats.php


This article was prepared for publication by Kenneth Hall, assistant editor for JURIST's Academic Commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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