Should Ukraine Have ‘Officially Declared War’ on Russia?

It is not uncommon to hear odious Russian politicians, pseudo-experts, and traitors such as Ilya Kiva, as well as bots on social media, claim that Ukraine is engaging in illegal activity by not formally declaring war on Russia. This manipulation tactic, where the lack of an official declaration of war is used as a means to discredit Ukraine’s actions in the ongoing conflict, has been employed since 2014.

MediaSapiens delves into the reality of the ongoing war in Ukraine, examining the legitimacy of the Ukrainian military’s self-defence measures and appeals for assistance from other nations. The article also explores the recognition of the conflict by international law, without the need for additional declarations, and the benefits Russia gains from manipulating this topic. Furthermore, the article sheds light on Russia’s violation of international law and humanitarian conventions.

Ukraine has not declared war on Russia?

The question of Ukraine’s failure to declare war on Russia has been a recurring topic in the media since Russia’s initial attack on Ukraine in 2014. The Ukrainian authorities were met with accusations of not declaring a ‘full-scale and legitimate war’, despite clear evidence of Russian military involvement in the hostilities in the Donetsk and Luhansk regions, as well as the support of Russian authorities for ‘separatist recruiting offices’. These claims were published on the Espresso website. Despite the prolonged eight-year conflict in these regions, there have always been those who sought to downplay the reality of the war by speculating that it was not, in fact, a war.

It would seem that any doubts about the nature of the ongoing conflict between Russia and Ukraine should have been dispelled after February 2022. Russia has made it unequivocally clear that its military is engaging in hostilities on Ukrainian soil, with the stated goal of ‘conducting a special operation on denazification and demilitarisation’. On February 24th, President of Ukraine Volodymyr Zelenskyy publicly declared that Russia had begun a war, and the Ukrainian parliament immediately imposed martial law. Despite this, some experts, primarily from Russia, continue to argue that there is no war in Ukraine in terms of international law because it has not been officially declared. These experts seemingly disregard the fact that Russian military forces are committing atrocities against Ukrainian civilians, including murder, rape, and destruction of homes, and the seizure of cities.

The question of why Ukraine has not declared war on Russia has been raised in the media and social networks multiple times during the three months (as of the writing of this article) of Russia’s full-scale invasion. The topic first emerged in early March, a week after the invasion began. Pro-Kremlin anonymous Telegram channels such as Spletnitsa questioned why Ukraine had not declared war, suggesting that failure to do so would imply that what was happening was simply a ‘special military operation to cleanse the country of Nazis’ as Putin had stated. 

On March 15th, the Russian publication Komsomolskaya Pravda published an article discussing this topic. The article stated that President Volodymyr Zelenskyy had sent a bill to the parliament to extend martial law for another 30 days and questioned why Ukraine had not officially declared war on Russia, while according to the Law ‘On Defence Of Ukraine’, the President had the right to officially declare and the Parliament was unlikely to refuse, and that Kyiv still maintained formal relations with Moscow. The author of the article, Oleg Adamovich, concluded that Ukraine does not declare war against Russia because it is afraid to do so due to not wanting to lose income from gas transit. He also argued that ‘an official declaration of war will force all Ukrainian production to switch to the army needs. Many laws will cease to operate. The authorities will start nationalising civilian transport... Zelenskyy is not ready for all this yet’; ‘the formal preservation of the peaceful status helps Kyiv not only with the supply of weapons. Sidorov believes that this is how the Ukrainian authorities are building their image of a victim. At least in the eyes of Europe and America. As long as Zelenskyy limits himself to martial law, he can say that he is not putting pressure on Russia’.

The fact that Kyiv maintains formal relations with Moscow is an outright lie because, on the first day of the full-scale invasion, Ukraine severed its diplomatic ties with Russia. The introduction of martial law in itself affects the life of the country. And the statement about the ‘image of a victim’ is also questionable, because only as of the first of May, according to the UN, more than three thousand civilians were killed in Ukraine, and more than three thousand were wounded. Even the UN considers these estimates to be conservative. 

What is a declaration of war? Martial law was introduced in the country. Isn’t that enough?

In short: there is a war in Ukraine, and it is clear without any declarations. However, according to politician and diplomat Andriy Shevchenko, from a legal point of view, the mere introduction of martial law is not enough, because it is an internal issue, and the declaration of war is an external one. However, he adds that international law focuses not on words or statements, but on actions. Therefore, what is happening, from the point of view of international law, is an obvious war and a violation of Ukraine’s sovereignty. 

And what is considered a war under international law? How else can it be declared?

Historian and international journalist Yehor Brailian explains that war became an element of international law in the early XX century when the Second Hague Convention introduced the concept of ‘declaration of war’ in 1907. ‘War is a state between two or a group of states whose armed forces fight to establish rules for the other side in case of victory,’ says the expert. ‘Although during the XX century, the concept of war changed due to the inclusion of paramilitary groups, and non-governmental organisations in order to seize power.’

According to Yehor Brailian, an important document was the Kellogg–Briand Pact signed in 1928. The document stated that war would no longer be used to settle ‘disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them’. ‘This document is still valid because it was approved outside the League of Nations. In many cases, a country did not declare war on the other party but simply attacked. This was the case with the German attack on Poland in 1939, for example. Only the horrors of the Second World War forced humanity to prescribe in the UN Charter of 1945 the inadmissibility of resolving conflicts between states by armed means,’ says Yehor Brailian, ‘but in the case of the Russian-Ukrainian war, everything is much more complicated.’

He explains that in and after 2014, Russia wanted to disguise its (para)militant groups as ‘the people of the Donbas who rebelled against the Kyiv junta’. ‘That’s why the term “hybrid war” was used to describe what was going on here, where alongside Russia’s military actions there was economic pressure, disinformation, propaganda and political history are all used to spread influence in the former Soviet Union,’ he says, ‘The Russians can call their actions whatever they want, but it doesn’t change their essence: the Russian army launched a full-scale attack on Ukraine on February 24.’ Of course, there is confusion when international, foreign governmental or non-governmental organisations call these events the “crisis in Ukraine” or the “Russian-Ukrainian crisis”.’

Yehor Brailian explains that the declaration of war is accompanied by the severance of diplomatic relations and the introduction of martial law, which Ukraine did on February 24 in response to Russia’s full-scale aggression. ‘This time Moscow did not disguise itself as a proxy force but used regular units of the Russian Armed Forces, Rosgvardia and other groups. But there must be a reason for declaring war,’ says Brailian, ‘For example, in 1917, the United States entered World War I, declaring war on Germany after the sinking of the Lusitania ocean liner.’

Is there a war in Ukraine? Can we defend ourselves and protect our integrity?

According to Yehor Brailian, the legal recognition of a state of war has already been established. The primary task at hand now lies in the implementation of international measures against Russia's military, economic, and environmental transgressions. ‘This situation poses a significant test for the global community, as it must hold accountable the perpetrator who masquerades as a peacemaker and economic ally. Only through the thorough isolation of Russia, such as its expulsion from the United Nations Security Council and other organisations, can Ukraine achieve victory over the rogue nation that disregards all rules and seeks to impose its own on a global scale,’ says Yehor Brailian.

Andriy Shevchenko clarifies that in accordance with contemporary international law, an armed conflict is any confrontation involving the military and weapons. ‘International law focuses on the actions taken, not formal declarations of war,’ explains Shevchenko. ‘However, there are also what are known as humanitarian conventions and protocols, which prescribe laws and regulations for warfare. These conventions oblige the parties to a conflict to clearly distinguish between military and civilian targets; prohibit the use of weapons that pose a danger to civilians, etc. Therefore, if we speak of adherence to international law and warfare, Russia flagrantly disregards these principles. And the violations of these rules began not in Bucha, not in Borodianka, not in Kherson, Melitopol or Berdiansk. For our country, they began in 2014.’ The Ukrainian authorities have been accusing Russia of violating international conventions in the occupied territories of Crimea and the Donetsk and Luhansk regions since 2014. After February 24, such statements have become more frequent. In particular, the Verkhovna Rada Commissioner for Human Rights Lyudmyla Denisova has repeatedly stated that Russia violates Geneva and other conventions.

And why does Russia persist in spreading the thesis of undeclared war?

Deputy Minister of Defense of Ukraine Hanna Maliar also reacted to these manipulations of Russia and pro-Russian politicians. According to her, ‘“undeclared or unrecognised war” is the FSB narrative, which clearly demonstrates how the FSB involves the intellectual and patriotic part of society in a destructive discussion’.

Maliar also asserts that in the present day, war is recognized as a factual occurrence and there is no requirement for formal declarations. ‘If, for example, there is an invasion of foreign troops on our territory, the fact of occupation, this constitutes aggression, and in common parlance — war. And it is immaterial whether it is recognized by others or not, whether a formal declaration of war has been made or not. That is, there is no need for a law or decree specifically confirming that we are at war,’ Hanna Malyar wrote. She added that the war in Ukraine has been ongoing since February 20, 2014. ‘This date of the beginning of the armed aggression is repeatedly mentioned in laws and court verdicts. We have 17 verdicts in which it was proven in court that Russia committed a crime against Ukraine — armed aggression,’ the Deputy Minister explained.

Andriy Shevchenko posits that statements issued by Russia should not be accorded any significance, as this country consistently fabricates lies and disregards all norms of international law, in contrast to Ukraine, a founding member of the UN, which adheres to the rules of war. ‘In terms of UN terminology, the logic of which is focused not on words but on actions, what Russia is doing certainly falls under the definition of war and international aggression. Accordingly, Ukraine, according to the UN Charter, has every right to defend its territory, independence, and sovereignty by all available means,’ the expert explains. According to him, Ukraine can also turn to foreign partners for help to fight the aggressor, which it is currently doing, as per the UN Charter.

According to Yehor Brailian, Russia benefits from spreading the idea that Ukraine has not declared war, thereby diminishing, or so they believe, Ukraine's standing in the eyes of the world. ‘Here, they say, look, this is a failed state that cannot do anything without its curators from abroad. It is as if NATO is fighting with the hands of Ukrainians,’ he explains.

Andriy Shevchenko, on the other hand, deems such calls of Russian propaganda as nothing more than ‘toilet gurgling,’ and suggests examining who suggested the idea that Ukraine has not declared war with Russia and why we have not done so since 2014, after the annexation of Crimea and the onset of hostilities. ‘In fact, everything is clear: we are at war. This is a war of liberation, for the preservation of our sovereignty and independence. It is just, that is why the whole world supports us in our struggle,’ the diplomat added.