Eric Chang on “The Minsk II Agreement as Compliance-Leverage Disparity Lawfare: A Trojan Horse Concealing an Illegal Casus Belli”
As the situation in the Ukraine continues to heat up, we want to bring your more analysis to you as part of our series on the crisis. In today’s post, Lawfire contributor Eric Chang does two things for us: 1) he unpacks the Minsk II Agreement that Russian President Vladimir Putin is attempting to leverage to justify sending troops into the Ukraine; and 2) he explains how this action illustrates Putin’s use of lawfare to help achieve his aims.
Eric brings his extraordinary ability to explain complex issues in a way that makes the discussion accessible to wide audience, and this post is no exception. What is more is that he is building his resume as one of the most thoughtful lawfare analyst. Let’s read his latest:
The Minsk II Agreement as Compliance-Leverage Disparity Lawfare: A Trojan Horse Concealing an Illegal Casus Belli*
by Eric Chang
On 21 February, President Putin asked Russian lawmakers to recognize the Luhansk and Donetsk regions (both part of the larger Donbas region of Eastern Ukraine) as independent, ratcheting already high tensions at a possible Russian re-invasion into Ukraine (the first invasion having taken place in 2014 in Crimea).
Shortly thereafter, Putin ordered troops into the region. The reason given is highly revealing: President Putin urged recognition of Luhansk and Donetsk on the basis that Ukraine had allegedly refused to implement the Minsk II Agreement. Putin’s actions amount to an illegal casus belli, clothed in the barest legal fig leaf of legitimacy by the western-brokered international agreements.
President Putin’s exploitation of the Minsk II Agreement is an example of compliance-leverage disparity lawfare – that is, the wrongful use of law designed to gain an advantage that such law and its processes exert over an adversary. This misuse of lawfare raises the question as to whether the 2014 Minsk Protocol and its 2015 successor, the Minsk II Agreement, can realistically serve as a basis for a peace process.
President Putin’s recognition of the Luhansk and Donetsk regions’ purported independence very likely kills any further hope in relying on the Minsk agreements; in fact, Putin’s latest maneuver shows that he has adroitly leveraged the agreements as a legal tool to further his military objective to invade and annex the Donbas region. With President Putin’s invasion into the Luhansk and Donetsk regions, the US, Europe, the Minsk II agreement is effectively dead as a tool for negotiating a peace process.
The 2014 and 2015 Minsk Agreements
Following Russia’s 2014 invasion and occupation of Crimea, Russia launched a hybrid war against Ukraine in the Donbas region. After several months of fighting, the Organization for Security and Cooperation in Europe (OSCE) brokered a cease-fire with Ukraine and Russia as participants under the September 2014 Minsk Protocol. The Minsk Protocol mainly consisted of a cease-fire agreement along the existing line of contact, with the OSCE monitoring the cease-fire.
However, that agreement almost immediately failed, and following renewed fighting, a new cease-fire and package of measures was signed in February 2015 – known as Minsk II. The Minsk II Agreement was signed between Ukraine, Russia, France and Germany.
From the very beginning the document was problematic: although signed by Russia’s Ambassador to Ukraine, the document does not mention Russia, an omission Russia has subsequently used to claim to not be a party to the agreement, and only a “facilitator,” and to further claim that the real parties to the agreement are the so-called Luhansk and Donetsk People’s Republics.
Minsk II contains thirteen points. Nine of these cover conflict management (cease-fire, pullback of heavy weaponry, humanitarian assistance, etc.). The cease-fire was almost immediately breached, although the agreement generally achieved a reduction in fighting. The remaining points address political matters:
- A dialogue on local elections in accordance with Ukrainian law, in the Donbas region, followed by elections in accordance with OSCE standards;
- The restoration of full economic and social links with the region, so that, for example, pensions could be paid.
- Re-establishment of Ukrainian government control over its border with Russia.
- Constitutional reform that would provide some autonomy to the regions of Ukraine’s eastern Donbas region no longer under the central government’s control.
A central disagreement between Ukraine and Russia is the exact sequence that these steps should take. Moreover, the Agreement contains deep ambiguity in the agreement to grant the Donbas region greater regional self-governance.
Putin Leverages the Ambiguity in the Agreements
From the very beginning, not a single point in the Minsk II Agreement has been implemented in full. President Putin has exploited the agreement, mainly by insisting that Russia is not actually a party to Minsk II, and that it is up to Ukraine and the separatist leaders in the Donbas region to implement the terms.
While Ukraine insists its borders be restored prior to any election in the Donbas region, Russia, through its separatist proxies, has refused. Ukraine further insists on withdrawal of Russian troops, but Russia has continually denied their presence.
Finally, and perhaps most importantly, Ukraine interprets Minsk II to give the Donbas regional autonomy, under Ukrainian sovereignty; Mr. Putin has pushed aggressively for something closer to full autonomy – until his recent outright recognition of the region’s supposed independence.
Compliance-Leverage Disparity Lawfare
Despite these deep flaws, the western-led efforts to prevent a new Russian invasion have clung to Minsk II as the best path to peace – mainly because there are no other viable options.
As recently as 17 February 2022, the United Nations Security Council convened to discuss the ongoing conflict between Ukraine and Russia; there, US Secretary of State Anthony J. Blinken addressed the Council, citing to Minsk II, as the “basis for the peace process to resolve the conflict in eastern Ukraine.” All parties, including Russia, Ukraine, and European officials, agreed in principle that the agreements should form the basis for a peace deal.
The major powers’ hopeful view of Minsk II stands in contrast with Putin’s use of the agreement, as seen through the lens of lawfare analysis. Russia’s exploitation of Minsk II provides a classic example of compliance-leverage lawfare, and seen from this point of view, President Putin’s recent call for the Donbas region’s independence is not at all surprising.
The concept of lawfare is understood and defined in various ways. A leading view, advanced by Major General Charles J. Dunlap, Jr., USAF (Ret.), defines lawfare as “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” This is a normatively neutral definition, describing the instrumental use of legal tools to achieve the same, or similar effects, as those traditionally sought from conventional kinetic military action. In this view, lawfare can encompass both the use and misuse of law to achieve an operational objective.
Focusing only on the misuse of law, a second view defines lawfare in an exclusively pejorative sense, to describe an exploitation of the law, or wrongful manipulation of the law and legal systems (to include violation of the same), in order to achieve strategic military or political ends. (Note that General Dunlap’s neutral definition above incorporates such negative misuses of the law.)
Professor Ordre Kittrie, who wrote the first wide-ranging English-language book on lawfare, Lawfare as a Weapon of War, has defined this negative type of lawfare as “compliance-leverage disparity lawfare,” referring to the use of law designed to gain an advantage that such law and its processes exert over an adversary.
A well-documented example is the Taliban’s placement of military assets within or around schools, religious sites, and hospitals, with the aim of either deterring attacks, or being able to accuse the US and its allies of harming innocent civilians and sites protected under international law.
The Taliban exploited the law of armed conflict, forcing the US to adopt targeting standards more stringent than that required by international law, even as Taliban forces violated the very same law of armed conflict. For the Taliban, lawfare effectively served as a substitute for conventional air defenses.
President Putin’s manipulation of the Minsk II Agreement perfectly fits the definition of compliance-leverage disparity lawfare. On the one hand, Russia has aggressively pushed Ukraine to meet its obligations under the agreement.
On the other hand, Russia has shirked its own obligations by not even acknowledging that it is a signatory to the document. Russia has achieved this by adroitly negotiating terms that were so vague so as to render the agreement largely unworkable and meaningless, even while conceding just enough to give Ukraine and other States hope that Minsk II could be implemented to a peaceful resolution.
Thus, Russia has succeeded in pressuring Ukraine to comply with Minsk II (Ukraine has passed legislation to implement its obligations), and convinced the US, European powers, and Ukraine that compliance with and implementation of Minsk II could achieve desired objectives – even as Russia itself has failed to honor its obligations under the same agreement.
A number of commentators have recognized the risk of Minsk II being manipulated by Russia, becoming a vehicle for the further, potential fatal destabilization of Ukraine, with one commentator aptly calling Minsk II a “Russian Trojan Horse” (see opinions here, here, here, and here).
That Trojan Horse is now apparent: President Putin is exploiting the legitimacy of Minsk II (which was, after all, signed by Ukraine, France, and Germany, and includes an important role for the OSCE), to argue for Ukraine’s purported breach of the agreement, and support his resulting call to recognize independence for Luhansk and Donetsk.
In essence, President Putin has taken advantage of Minsk II to provide the thinnest veneer of legitimacy to an otherwise illegal casus belli for further military invasion of Ukraine. (Putin’s latest invasion is entirely in line with his past actions, and in particular his invasion of Crimea, which was also preceded by a disinformation/propaganda campaign.)
Russia tracking China’s Lawfare strategy
Russia’s misuse of international law (and the legitimacy derived from international agreements) to achieve a military operational objective is not an isolated incident.
Indeed, Russia’s strategy closely tracks China’s “Three Warfares” doctrine: the Communist Party of China (“CPC”) has long utilized lawfare as part of its overall national and military strategy, overtly exploiting existing legal regimes and processes to constrain adversary behavior, contest disadvantageous circumstances, confuse legal precedent, and maximize advantage in situations related to its core interests. While there are no perfectly analogous examples, two specific CPC lawfare efforts come to mind.
In the maritime and aviation realm, the CPC has asserted a sovereign right over military sea passage and overflight within the Exclusive Economic Zone (“EEZ”) extending two hundred nautical miles from its coastal baseline.
The concept of the EEZ, established in the United Nations Convention on the Law of the Sea (“UNCLOS,” to which the PRC is a signatory), allows coastal states to maintain control over natural resources off their coasts; however, it does not recognize a so-called “securitization” right to control the default navigational and overflight freedoms associated with the high seas.
Under the prevailing majority view (adopted by the US and its allies) the freedom of navigation of military ships and aircraft is not explicitly limited in the EEZ. Nevertheless, the CPC has pressed on, leveraging its UNCLOS membership to push for its interpretation of the EEZ.
The CPC’s activities have been described as a “lawfare strategy to misstate or misapply international legal norms to accommodate its anti-access strategy.” Relying on this selective interpretation of international law, the CPC has routinely interfered with US military passage in the EEZ, to include aggressive interference with US military ships and aircraft.
What is notable about the CPC’s efforts is that it is working within the legal framework of UNCLOS to push for a misstatement of maritime law. Similarly, in a superficial manner, Russia is working within the framework of international law (through the vehicle of Minsk II) to push for an interpretation of the status of the Donbas Region that, ultimately, illegally infringes upon Ukraine’s sovereignty under international law.
The CPC’s other major lawfare effort relates to its claims to the South China Sea, via the so-called nine-dash line. In contrast to its EEZ posture, the CPC’s claims to the South China Sea does not rely on UNCLOS – and indeed could not, as the treaty cannot possibly support its ambiguous historical assertions to sovereignty over the area. The nine-dash line demarcates roughly 90% of the South China Sea as belonging to China.
The CPC has never clarified the exact extent of its claim – whether the nine-dash line represents a claim to all islands within the line, whether it is a sovereign boundary covering all enclosed waters and land features, or some other set of historic rights to the maritime space; even the position of the line has changed over time.
Instead, the CPC deliberately chose to ignore UNCLOS, and adopted a strategy of ambiguous legal-historical claims, coupled with de facto implementation via, inter alia, interfering with neighboring States’ fishing and hydrocarbon exploration rights, and constructing artificial islands.
This strategy of ambiguity closely resembles Russia’s strategy vis-à-vis the Minsk II agreement: both China and Russia use legal ambiguity to make it appear that they adhere to international legal norms, but the ultimate objective achieved is directly contradictory to international law.
Lawfare Lessons Learned
Putin’s strategic misuse of the Minsk II Agreement is now revealed. Ukraine and world leaders miscalculated in putting their hopes in Minsk II as a path for a peace process, and not recognizing Putin’s use of that agreement as compliance-leverage disparity lawfare. Of course, hindsight is 20/20. But with Putin’s plan finally revealed and his invasion underway, the international community can at least draw some lessons from his adroit exploitation of the law.
At the same time, Ukraine, the US and Europe should categorically reject any attempt by Putin to legitimize his land grab by a contortion of international law principles. As with his invasion and occupation of Crimea, the United Nations General Assembly should formally reject any recognition of Donbas’ independence under international law. It is equally important that Putin’s exploitation of legal mechanisms be recognized for what they are, and called out as such: his play-by-play manipulation of Minsk II should be exposed, and used as a case study for future conflicts.
 Orde Kittrie, Lawfare: Law as a Weapon of War 11, 11-12 (Oxford Univ. Press 2016).
 Charles J. Dunlap, Jr., Lawfare Today: A Perspective, 3 Yale J. Int’l. Aff. 146, 146 (2008).
 Kittrie, supra note 1, at 11.
 Michael P. Scharf, Elizabeth Anderson, Is lawfare Worth Defining – Report of the Cleveland Experts Meeting – September 11, 2010, 43 Case W. Res. J. Int’l L. 11, 18 (2010).
 Kittrie, supra note 1, at 11-12.
 Charles J. Dunlap. Jr., Does lawfare Need an Apologia?, 43 Case W. Res. J. Int’l L. 121, 134 (2010).
 Robert C. De Tolve, At What Cost? America’s UNCLOS Allergy in the Time of “lawfare”, 61 Naval L. Rev. 1, 10-13 (2012). While the majority of UNCLOS signatories adopt this prevailing view, a few member-States side with China’s interpretation, including Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman, and Vietnam. China’s interpretation of UNCLOS exploits this minority view. Oriana Skylar Mastro, How China is Bending the Rules in the South China Sea, Stanford Freeman Spogli Institute for Int’l Studies (Feb. 17, 2021), https://fsi.stanford.edu/news/how-china-bending-rules-south-china-sea.
 Raul Pedrozo, The Building of China’s Great Wall at Sea, 17 Ocean & Coastal L.J. 253, 257 (2012).
 Id. at 284-85.
 In the Matter of the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), Case No. 2013-19 (Perm. Ct. Arb. 2013), Award dated 12 July 2016, at ¶¶ 180 et seq.
About the author
Eric Chang is a captain in the U.S. Army’s Judge Advocate General Corps and serves as an International Law Officer for the 426th Civil Affairs Battalion (Airborne). He is also the Founder and Principal, Chang Law, a practice focusing on international investment law.
* The views expressed herein are those of the author. They do not necessarily represent the views of the Department of Defense, the Department of the Army, the Judge Advocate General’s Corps, or any other governmental or non-governmental agency.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
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