Ukrainian strikes on Russian territory – acts of aggression or self-defence?

"Kursk Breakthrough" requires time for deep reflection by experts across various fields. These events are complex and multidimensional, encompassing political, military, historical, legal, and psychological aspects.

However, even at this early stage, the uniqueness of the Kursk operation is evident, regardless of how events unfold in the future.

Military strategy

Military experts from various countries acknowledge that, from a military perspective, the Kursk operation was executed with exceptional skill. The enemy was caught off guard. The Ukrainian side maintained an unprecedented level of secrecy. Additionally, unique measures of disinformation and deception were employed, although the specifics of these tactics will remain classified until the end of the war.

The operation is also notable for the speed of its execution. To illustrate: the enemy advances by 200 to 400 meters per day on its primary assault direction near Pokrovsk, whereas Ukrainian forces advanced 14 kilometres on the first day of the Kursk operation. What does this indicate? It suggests that our forces, through well-planned and organized surprise, managed to gain an advantage over the enemy while they were disoriented and demoralized. Achieving an advantage over an enemy with a tenfold superiority in armaments and a significantly larger manpower is an extraordinarily difficult task, yet our defence forces have succeeded at this stage.

While the military situation is clear – our army has demonstrated a high level of military prowess in planning and executing an offensive operation — the legal assessment of these events varies, ranging from the reclamation of ancient Ukrainian lands to a mirrored act of aggression.

Who is the aggressor?

Since Ukrainian forces physically crossed the Russian border and advanced, the question naturally arises: Are we not doing the same thing that Russia did to Ukraine? No, we are not.

The crime of aggression is ongoing and began in 2014, perpetrated by the Russian Federation. Ukraine is the victim of this aggression and is exercising its inherent right to self-defence, as provided by Article 51 of the UN Charter.

The crime of aggression or war will persist until it is concluded. This is a singular crime driven by the single intent of the aggressor. In the context of this war between two states, there is only one aggressor — the one who initiated the aggression. This is stated in the definition of aggression in Article 2 of the 1974 UN General Assembly Resolution.

Consequently, Ukraine's actions cannot be viewed in isolation from this war, as a separate act or operation. They are a direct consequence of the war against our state and are undertaken solely to weaken the enemy and bring the war to an end.

The right to defence

Ukraine's actions also cannot be separated from international cooperation in maintaining peace and international security. War is an international crime against peace among nations. Combating and preventing this crime falls under the competence of the UN Security Council, which bears the primary responsibility for maintaining international peace and security. 

Hence, Ukraine, as a UN member, should not have to end this war alone. Until the Security Council takes the necessary measures to maintain international peace, the state under attack may exercise its inherent right to self-defence under Article 51 of the UN Charter. As we can see, the UN Security Council has yet to take such measures. Therefore, Ukraine is exercising its right to self-defence.

Moreover, we are defending our freedom at a time when there is a critical failure of international courts to combat wars by holding aggressors accountable. Since the Nuremberg Trials, international courts have not issued verdicts for the crime of aggression. There have been convictions for war crimes and crimes against humanity, which are derivative of aggression. Thus, any potential aggressor today knows that they are unlikely to be punished for aggression.

Currently, there is no functioning international mechanism capable of stopping this war. Therefore, Ukraine has no choice but to defend itself and its people by all available means.

How to defend or the right to survive

International law does not provide guidance on how a country should defend itself when attacked by a nuclear state with a vast superiority in weapons and manpower. Nor does it offer advice on how to defend against an aggressor that wages war without rules, disregarding every norm of international humanitarian law. Or how Ukraine should act in a full-scale war when the international community cannot stop this aggression.

But we do have the right to survive. Mutual respect for the territorial integrity, borders, and sovereignty of another state are principles of peaceful coexistence between states. However, if crossing the border of the aggressor state is necessary to protect the lives of hundreds of thousands of people, this is an extreme measure that the defending state has the right to take if there are no other ways to weaken the enemy.

In choosing methods of defence, Ukraine is constrained only by the norms of international humanitarian law, which Ukraine has adhered to since the first day of Russia's invasion of our territory.

The legal status of the Kursk areas occupied by Ukrainian Forces

This is a complex issue. Currently, there is no unified approach to defining the criteria that would unequivocally classify a certain situation as occupation. However, there is an absolutely clear distinction between the presence of Russian troops on our temporarily occupied territories and the presence of Ukrainian troops in Kursk region. It is the difference between robbery and the seizure of property. In this case, the occupied territory is neither independent nor the ultimate goal; land itself is not the objective but rather a tool to weaken the enemy's military capability.

Military occupation is a common feature of most wars, which usually ends with the conclusion of the conflict.

The mere fact of temporary control by military forces over a specific territory does not confer rights to that territory. Instead, it generates a series of obligations towards the local civilian population. This is one of the fundamental principles of warfare—military forces do not harm civilians and ensure that the basic human needs of civilians in controlled areas are met.

Undoubtedly, the Kursk operation is a success, but we still have a long and difficult path to victory, filled with many challenges and unconventional decisions that we will discuss repeatedly. However, we must always remember that there is only one aggressor in this war—Russia. An aggressor that fights without rules and is obsessed with destroying Ukraine, an aggressor that has brought us to the brink of survival. An aggressor from whom the international community cannot protect us. Therefore, we have the right to defend our people and our state by all means available to us.

Hanna Maliar