Category Archives: Legal considerations

The road to independence

The road to independence can, and in most cases will, lead through civil war and conflict. It is very rarely that a declaration of independence from a state is handled as peaceful and constructive as the segregation of the former Republic of Czechoslovakia was handled by dissolving in the Czech Republic. Examples of violent processes and responses to declaring independence are unfortunately far more common. Ireland, Rhodesia and the Balkan States in former Yugoslavia from sad examples of the destructive and aggressive way of handling declarations of independence, making most declarations unilateral by default.

Sections of Ukraine have attempted to declare independence unilaterally by means of uprising, denouncing the rule and constitution of Ukraine, a referendum and installing a new governing body under the rule of the self-declared republic in full independence of state of Ukraine. Since Ukraine has no federal governing bodies and its constitution stipulates that such process can only be executed by approved law from the central government or referendum which is to be initiated by the central government and would have to include the entire country, unilaterally initiating the intention to declare independence from the state of Ukraine remains the only alternative for regions within Ukraine.

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On the subject of evidence and opinions

The conflict in Ukraine and the downing of Flight MH17 is covered by 24/7 attention in media and online platforms. The amount of information coming through all channels in an incredible pace is overwhelming. Opinions and interpretations are formed and shared with the speed of light, presented under the cover of information and evidence. In all this, it becomes difficult to identify truth, facts and fiction.

Most concerning is the amount of unsubstantiated opinions which are presented as facts and evidence, and are carried by crowds of online users and mass media. If that would not be enough, there is a growing amount of fabricated hoaxes which are mixed in with information.

Here are some simple facts about evidence:

  • Evidence that a suspect has the capability to commit a crime does not provide evidence that the suspect committed the crime.
  • Evidence that a suspect has a possible motive to commit a crime does not provide evidence that the suspect committed the crime.
  • Evidence that a suspect was at the scene of the crime at the moment of the crime does not provide evidence that the subject committed the crime, unless evidence is available the the subject and only the subject was at the scene of the crime at the moment of the crime.
  • The above do however substantiate the suspicion of committing the crime and the need to continue to treat the suspect as suspect.
  • Eyewitness testimony is not direct evidence, neither in confirming that the suspect committed the crime, nor in denying that the suspect committed the crime. Eyewitnesses can of course be influenced up to being paid to testify.Honest eyewitnesses can be influenced by their own believes, by information by others, by fear and most of all by time. The longer the time frame between the event and the testimony is, the higher the risk that the memories of the eyewitness have been influenced by external information and personal considerations of the eyewitness.
  • Pictures and videos are not direct evidence. The first challenge is to confirm that these were made at the time and location of which they are stated to be made. The next challenge is to determine if these have not been manipulated. And thirdly, quality, angle, range, etc. of the picture or video can have influence on the information provided.

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The fate of foreign volunteers in the Ukrainian Conflict depends on which side they are on!

With the arrest and announced prosecution of 8 Spanish citizens after their return from Donbass where they fought as combatant in the militias opposing the Ukrainian government forces, my colleague and I tried to get a simple answer to a simple question from various Spanish officials:

Will volunteer combatants with Spanish citizenship fighting for the Ukrainian government forces or the volunteer forces which are endorsed and armed by the Ukrainian government, be prosecuted by the Spanish Justice Department on the same charges as those volunteer combatants with Spanish citizenship fighting for the opposing militias in Ukraine?

From the Spanish Officials we contacted, we received the famous non-answer: “no comment” which is exactly what it says – no comment to your question and therefor no answer to your question. We assume that this answer will remain the answer until we either stop asking this question or until such case would actually arise, should it ever arise.

So we tried to understand which grounds Spain has to prosecute those combatants which have been arrested last week:

  1. Spanish citizens are prohibited from participating in combat activities or aiding to combat activities unless order to do so by the Spanish Government. Spanish citizens can be ordered to participate in combat activities without a formal declaration of war, e.g. the Spanish participation in the NATO led war in Afghanistan.
  2. Spanish citizens are prohibited from participation in a conflict in which the Spanish Government has declared neutrality and Spain has declared neutrality in the conflict in Ukraine.
  3. Each of the above mentioned prohibited activities can be prosecuted either as committed crime as such, or as the direct crime resulting from such activities when adequate evidence is available. E.g. when such activities would lead to murder or war crimes.

Continue reading The fate of foreign volunteers in the Ukrainian Conflict depends on which side they are on!

The faith of foreign volunteers in the Ukrainian Conflict

The recent arrest in Spain of 8 Spanish combatants, serving as volunteers for the rebel militias in South-East Ukraine, have sparkled vivid discussions among various communities and groups, including lawyers of different countries and backgrounds. Those without a legal background (and some with legal background) focus their discussions on good versus bad, in which being good or bad depends on personal views and beliefs. The good guys are referred to as volunteers, the bad guys are the mercenaries and soldiers of fortune. Both sides alike. Fellow researchers and confreres try to find answers in the legal environment of laws and rulings within and outside of Spain and precedents from prior conflicts in past decades.

A complicating factor in this matter is the Minsk II Protocol which provides several sections which apply to or impact foreign volunteers involved in this conflict. A pardon and amnesty, pullout foreign formations and mercenaries and disarmament of illegal groups are defined as follows:

5. Provide pardon and amnesty by way of enacting a law that forbids persecution and punishment of persons in relation to events that took place in particular districts of Donetsk and Luhansk oblasts of Ukraine.

10. Pullout of all foreign armed formations, military equipment, and also mercenaries from the territory of Ukraine under OSCE supervision. Disarmament of all illegal groups.

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The Draconic Minsk II Protocol (Part 2)

The second Minsk Protocol, also referred to as Minsk 2, has raised more questions about its impact and intentions than it has provided answers and solutions. Many issues are still to be clarified and it is at least interesting to see that 4 so called World Leaders (although I personally don’t consider the President of Ukraine a World Leader) have not been able to draft a better document than this.

In my judgment, this adds up to a strong statement about the different interests and the lack of willingness to develop a comprehensive solution in the interest of the PEOPLE suffering under this conflict. The second Minsk Protocol is even weaker than the first Protocol was and leaves all those items which led to the conflict fully open. In the coming days and weeks, I will post my thoughts based on my own opinion and the many discussions I am having these days on this topic.

Continue reading The Draconic Minsk II Protocol (Part 2)

The draconic Minsk II Protocol (Part 1)

After a long raging civil war in the eastern part of Ukraine and several failed attempts to reach peace agreements and ceasefires, yet another “Minsk Protocol” was negotiated and put into force by the signatures of the members of the contact group.

Point 5 of this agreement is both worrying and draconic:

5 Provide pardon and amnesty by way of enacting a law that forbids persecution and punishment of persons in relation to events that took place in particular districts of Donetsk and Luhansk oblasts of Ukraine.

There is no limitation and exclusion to the kind of crimes this pardon and amnesty applies to, nor does this article accept the ruling of a court to determine to which extend this pardon and amnesty will apply to which type of crimes. So in short, it is a general pardon for all and every crimes committed within those particular districts of Donetsk and Luhansk oblasts. What are those particular districts? Are those the positions held by non-Kiev-loyal groups or does that include the positions and regions held by government forces and their volunteer battalions?

Continue reading The draconic Minsk II Protocol (Part 1)