Who is in control of the war, Russia or Ukraine?
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(CNN Spanish) --
That Russia can formally declare war on Ukraine in the midst of the invasion, as officials from the United States and other Western countries pointed out on Tuesday, may seem like a joke in bad taste or perhaps just a meaningless rhetorical turn. .
After all, Russia has been fighting on Ukrainian territory for more than two months, the fighting and shelling are growing in intensity and brutality in the east, cities like Mariupol and Kharkiv are in ruins, and the military dead are among the dozens of thousands and the civilians in the thousands.
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But a formal declaration - even when these are deprecated - could be more than a rhetorical twist for what Moscow has called a "special military operation".
It could even worsen the situation for all parties and take the war to another scale, with effects for all parties.
Russian government spokesman Dmitry Peskov even denied on Wednesday that his country could soon declare war on Ukraine, as CNN had reported the day before based on Western officials.
Peskov told CNN that there was "no" chance of Russia declaring war during the upcoming May 9 parade in Moscow, and that the reports were "nonsense."
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On May 9, the parade will take place in Moscow for "Victory Day", when Russia commemorates the triumph of the then Soviet Union against Nazi Germany in 1945 and the end of World War II.
It is a culturally important event for Russians, linking back to a heroic past as the Kremlin displays its military might.
Russian soldiers are seen on a tank in the Volnovakha district of pro-Russian separatist controlled Donetsk, Ukraine, on March 26.
(Sefa Karacan/Anadolu Agency/Getty Images)
For several weeks, officials from the United States and other Western countries have expected Russian President Vladimir Putin to take advantage of the symbolic value of the event to make a big announcement.
It was initially believed that Putin would try to declare victory, or a victory, over Ukraine on that date, such as capturing Mariupol in the south.
In this regard, Pope Francis even said that Putin could end the war on that day, he was told by Hungarian Prime Minister Victor Orban, a leader close to Moscow.
But now Western officials also anticipate that Putin could announce a significant increase in hostilities and, in that context, a formal declaration of war, which would allow him to mobilize all of Russia's resources, according to Western officials, among which the British Defense Secretary Ben Wallace.
Peskov rejected these reports.
From "special military operation" to war
On February 24, when Russian troops crossed the border into Ukraine from the north, east and south, Putin called it a "special military operation" in the Donbas region, where pro-Russian separatists have been fighting Ukraine since 2014.
The phrasing had a concrete meaning.
Aggressive warfare is formally—with or without a declaration—prohibited by Article 2 of the United Nations Charter, of which the Soviet Union, whose legal heir is Russia, was one of the signatories.
Russia even retains the permanent seat and veto power of the USSR in the UN Security Council - the only one authorized to use force -, for which its role in the body is key.
Drone shows the destruction in the Ukrainian city of Borodianka 0:46
The UN, however, enables, in article 51 of its Charter, the right to individual or collective defense against aggression, an argument that is usually used in interpretations to justify any declaration of war.
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In fact, Russia invoked the United Nations Charter when it announced its "special military operation": Putin said on Russian state television that the breakaway republics in Donbas had asked Russia for help, and that "under Article 51, part seven of the Charter of the United Nations" had decided on the invasion to "protect people who have been intimidated and subjected to genocide by the Kyiv regime for eight years".
Of course, that the UN prohibits war does not mean that States do not practice it, and the absence of a declaration does not mean that war does not exist.
The United States did not declare war on Iraq in 1991 or 2003, and Russia did not declare war on Georgia in 2008.
At the beginning of the 20th century, declarations of war were considered a requirement for a legal state of war to exist between two States, and thus humanitarian law (such as the Hague and Geneva conventions) and other legal aspects would come into force.
Today, partly due to the emergence of the UN and the acceptance of article 51 in its Charter, a declaration is not necessary for there to be a state of war and legal instruments apply: the 1949 Geneva Convention extends even in its article 3 the effects of humanitarian law to a wide variety of conflicts beyond those between states.
What it could mean for Russia to declare war
But why would Russia seek to get into this legal battle of interpretations to formally declare war on Ukraine, when declarations of war are on the decline?
Ukrainians return to cities killed by Russian forces 3:00
According to Russian law, this is the only way to mobilize reservists (estimated at more than two million) and recruit new troops, in a context where Russia needs reinforcements due to battlefield losses and the needs of its new offensive in the east, launched after its advances against Kyiv failed to bear fruit.
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According to a report by the Institute for the Study of War, Russia is rapidly depleting its human resources as the war in Ukraine stalls and its frontline units lose capacity, requiring ever more reinforcements.
This could put Moscow on the path to general mobilization.
This so-called "mobilizatsiya" (mobilization) implies "a complex of state measures to activate resources, force and capabilities for the realization of political-military objectives," according to a recent study by the British Chatham House.
The pillars of this mobilization, the study points out, are economic and military, based on the reorganization of industry, natural resources, transportation and communications at the service of the armed forces.
The declaration of war could also entrench the support of the Russian population for the invasion, by drawing the entire society into an all-out conflict, in the style of World War I or II.
Multiple explosions reported in Odessa, Ukraine 3:34
This is especially important because it would give the signal to prepare for a long and deadly conflict, which will have an impact even in Russian towns far from the front, both due to international sanctions and possible Ukrainian attacks.
Since the beginning of hostilities, the use of conscripts, for example, has been a controversial issue in Russia: Putin assured in a message to mothers in Russia that the conscripts would not participate in the fighting and that the invasion was being carried out by professionals, although the Ukrainians reported having found conscripts on the battlefield and finally Moscow recognized that they had been deployed although they would have later returned to Russia.
But with a declaration of war and a mobilization, conscripts and reservists would be seen in greater numbers on the battlefield filling gaps in units left by losses.
The war, on the other hand, is already total for Ukraine, whose government ordered the general mobilization of reservists and conscripts at the beginning of the invasion and marshaled all its available resources to defend against the Russian attack.
With reporting from CNN's Natasha Bertrand, Katie Bo Lillis, Jennifer Hansler, Alex Marquardt and Brad Lendon.
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