Kiev’s “Fact-Finding” in Donbass – A Hammer in Search of a Nail

By Ollie Richardson

At the December 8th briefing entitled “10 minimum steps that should be applied to Ukraine for effective legislation on occupied territories” at the US State Department’s “Ukrainian Crisis Media Center” in Kiev, the “world leading expert in international humanitarian law (IHL) and international human rights law (IHRL)” of the international human rights organisation “Global Rights Compliance” Wayne Jordash stated that in order to declare Donbass as territory “occupied by a foreign State” a fact-finding mission must first take place. Furthermore, according to him, the facts must confirm the physical presence of military forces of another country in the area without the consent of the government of the occupied country. 

“One – (the fact of) the physical presence of a State’s armed forces operating within a foreign territory of another State without the host State’s consent. To establish this the facts must show that the presence of foreign military forces is sufficient to allow it to exert and assert authority over the territory of another State or its parts. Two – the exercise of authority over the entire State territory or its parts by the foreign forces in lieu of the local government. Three – the substantial or complete inability of the local government to exercise its powers by virtue of the foreign force’s unconsented-to presence.

As must be obvious from these three criteria, Crimea and the assessment there is perhaps not too difficult. International law is clear: Crimea is occupied by the Russian FederationHowever, in relation to Donbass – the situation is more complicated. Ukraine must carry out a fact-finding exercise in order to collect proof of military presence, the potential exercise of authority by the Russian Federation, and the absence of the local authorities’ consent – i.e. Ukraine’s consent – before concluding that Donbass is, in fact, an occupied territory.

Asserting it as a political labelling is one thing, but fact-finding to conclude that it is, in fact, an occupied territory is another. In this regard Ukraine may rely upon a wide variety of facts. But, of course, those facts should be impartial, careful, accurate, and verifiable. Those reported by neutral and impartial international organisations, such as the UN human rights monitoring mission to Ukraine and the OSCE’s special monitoring mission to Ukraine, are obviously organisations that can be relied upon. But they are not the only source. Other reputable investigations can be conducted and should be conducted and relied upon to assess whether Donbass is in fact occupied as a matter of fact and international law.

He then goes on to describe how Ukraine, after completing “step one”, should move on to the second, analytical step: assessing the “degree of control that exists in relation to the foreign power, and in relation to the ousted sovereign power – in this instance, Ukraine”. According to the lawyer, it is important that the factual situation on the ground is properly understood.

“Article 1 of draft bill 7163 relating to the uncontrolled territories mentions overall control. However, there is no evidence that Ukraine has conducted a detailed fact-finding exercise in relation to Donbass. There is no reflection on how Donbass is said to be controlled, and to the extent that it is controlled. Draft bill 7163 does not reflect on how control by the Russian Federation is exercised, what powers or authority of Ukraine is limited in Donbass. It doesn’t otherwise address any detail concerning the essential fact-finding exercise that would offer cogent proof of the Russian Federation’s military presence, its potential exercise of authority over the separatists, nor the absence of the local authorities’ consent with regard to specific areas of governance.

These are the type of issues that are required to be looked at, analysed, and conclusions drawn so that Ukraine can work out what obligations are attributable to the Russian Federation, and what obligations remain upon Ukraine.”

What does all of this mean

To begin with, it is interesting to note that the website of the Global Rights Compliance” organisation  is available in two language: English and Ukrainian. To call a spade a spade, this typically means that the NGO is a part of the network that is receiving funds from Washington. In addition, the very fact that a representative of this legislative body appeared and spoke in the Ukrainian Crisis Media Center is very telling in itself. I.e., only propaganda is allowed here.

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The general premise of Mr Jordash’s presentation is that in order for Kiev to fulfil its obligations in regards to humanitarian law, it must first factually determine what territory it doesn’t control and what territory it does. This is what he calls a “fact-finding” mission. I.e., 4 years after the “anti-terrorist operation” was launched by the illegitimate President Aleksandr Turchynov, it is only now – in 2017- that there is a desire (or the illusion of one) to find facts. Firstly, Poroshenko must find tangible proof that Russian troops are in Donbass. As is known to all, this very straightforward “fact” has so far been elusive. The “impartial international organisations” referenced in the presentation also have not been able to find anything. Four whole years, and not even a dog tag of a regular Russian soldier.

Thus, this also means that finding a fact of Russia “exercising its authority over the entire State territory or its parts by the foreign forces in lieu of the local government” is not possible, since a Russia cannot exercise authority over another State using just carrier pigeons. And, of course, the third part of the fact-finding fun – blaming the elusive Russian army for the environment of poverty – is also unachievable. In theory, if Russia is proven to factually be an occupant that prevents the authorities in Kiev from executing their humanitarian obligations before the law, then the very fact that thousands of pensions, mothers, and children currently aren’t receiving any State help can simply be blamed on the Kremlin.

But, if to follow international law to the letter of the law, the carrying out of a fact-finding mission can backfire on Kiev, since another foreign presence might be suddenly discovered. During step one the actual President of Ukraine Viktor Yanukovych, since he never forfeited his powers after the unconstitutional coup of 2014, may see something in his binoculars like this:

US Embassy to Ukraine Senior Defence Official and Defence Attaché Col. Thomas Wofford pays a visit to Donbass – November 2017

Then in the second step he will be obliged to determine that the US representative Thomas Woffard (seen above) is exercising his authority over the State of Ukraine. And during the third step, Mr Yanukovych will affirm that the American presence does in fact prevent him from carrying out his duties as President. In the framework of this hypothetical, but realistic scenario, the obvious biased and illogical nature of so-called “international law” (read: Western hegemony) becomes more and more obvious. 

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Mr Jordash saves the author of these lines some time by highlighting how the Rada’s bill No. 7163 “On the peculiarities of state policy on ensuring Ukraine’s state sovereignty over the temporarily occupied territories of Donetsk and Lugansk oblasts” in itself violates international law. Since, according to Mr Jordash, Ukraine has not “conducted a detailed fact-finding exercise”, and in the bill there is “no reflection on how Donbass is said to be controlled, and to the extent that it is controlled” and it “does not reflect on how control by the Russian Federation is exercised, or what powers or authority of Ukraine is limited in Donbass”, then it can be affirmed that the expression “shoot first, ask questions later” has resulted in the deaths of over 100,000 people as a result of a legally groundless “Anti-terrorist operation” in Donbass, the republics of which – DPR and LPR – were never recognised as “terrorist” by any court of Ukraine.

Furthermore, according to the Ukrainian Helsinki Human Rights Union, “an important goal of draft law No. 7163 is recognising the ongoing nature of Russian aggression in Ukraine and occupation of certain areas in eastern Ukraine. In order to demonstrate Ukraine’s clear intention to comply with international humanitarian law (IHL) as a party to an armed conflict and the requirement for Russia to do the same, the preface should contain references to all four Geneva Conventions as well as additional protocols to them.” What’s striking is that Kiev needs to first “recognise” so-called “Russian aggression”, and then it will be possible to force Russia to comply with “IHL” “as a party to an armed conflict”. I.e., there is no proof that Russia is in Donbass, but the Ukrainian Armed Forces and Banderist battalions have the seal of approval from the West to shell the residential areas of Donbass until the mysterious Russian bear emerges from his cave in the LDPR. Where does a war crime start and a “counter-terrorism” end? Well, to answer this question it is enough to examine the US’ recent actions in Syria – where the “ISIS” excuse is used to justify an actual occupation (it is expected that the US’ will never admit that “ISIS” is no longer present on Syrian territory, because then Uncle Sam will be obliged to leave).

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This “fact-finding” nonsense is strikingly similar to the one in Iraq in 2003. Shock – no Weapons of mass destructionwere ever found! And it comes as no surprise that the same rats that were responsible for this fairy tale are also involved in selling the one concerning the “occupation” of Donbass!

Judith Miller: “More than 7% of its territory remains OCCUPIED by its aggressive neighbour.”

On a separate note, the presentation from the legal expert affirms that Crimea is occupied, but currently, Donbass isn’t. Presumably this is because in 2014 “polite” people were spotted in Crimea, although the truth is that they were already there within the framework of international law: Russia was allowed to maintain 25,000 troops, 24 artillery systems (with a calibre smaller than 100 mm), 132 armoured vehicles, and 22 military planes, on military base in Sevastopol and related infrastructure on the Crimean Peninsula. Of course, the fact that a referendum took place without a bullet being fired, and the overwhelming majority of citizens voted to return to Russia is, apparently, insignificant. The actual illegal formation of the Kosovan springboard is allegedly legal, but the referendum in Crimea is not; America’s recognition of Jerusalem as Israel’s capital is allegedly legal, but the establishing of the Donetsk and Lugansk republics is not. Go figure!

So, on the surface the slick presentation prepared for the audience in Kiev was delivered with the aim of aligning Ukraine with international law. But in reality it was designed to bring the circus back to reality, because the US and EU are playing a dangerous game. They risk to submerge themselves into the endless paradox of simulacra, the result of which is the hall of the Anglo Saxon “United Nations” project becoming an empty space. It would appear that the US can “find” Osama Bin Laden in a cave using high-tech satellites, but a single Russian tank in Donbass? Nope! If we have learnt one thing since the Yugoslavia kangaroo court in the Hague it is that “international law” is like a broken light switch – in order to lift the blanket of darkness, it is necessary to replace it with a working mechanism.

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