[Tali Kolesov Har-Oz and Ori Pomson are teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty]
Following the ousting of Ukrainian President Viktor Yanukovich by protesters and parliament, Russian military forces took over key positions in the autonomous region of Crimea (timeline available here). One of Russia’s justifications for militarily intervening in Ukraine has been the reported request by the ousted Yanukovich for Russia’s assistance (see for example here and here). Though the respect for territorial integrity is a fundamental principle of international law and a military intervention would thus clearly violate this rule (UN Charter, art. 2; UN Doc. A/RES/25/2625), Russia’s position is that it has not violated Ukraine’s territorial integrity in light of – inter alia – Yanukovich’s alleged consent. This raises the question, which this piece will address, of how to determine which government or leader – if any – may authorize a military intervention in a State.
It is generally recognized that a State may intervene in another State if the latter’s government provided prior consent (see DRC v Uganda, ¶¶46-47; ARSIWA Commentaries, 74). However, already in the early post-Charter era it became very apparent that the pretext of consent could be subject to serious abuse (Wright, 274-76). Accordingly, there must be “thorough scrutiny” in assessing whether actual and legal consent has been given (Dinstein, §321).
Only a legitimate government may bind a State in international law (D’Aspremont, 878-879). Thus, in order to determine who is entitled to request such a military intervention, we must first identify the legitimate government of that State.
While there are no objective criteria to determine governments’ legitimacy (D’Aspremont, at 878-879), governmental status in the legal literature is regularly equated with territorial effectiveness (Oppenheim’s International Law 150-54 (9th ed. 1992)). However, several authors have argued that governments also derive their legitimacy from the extent to which they come to power through participatory political mechanisms (Franck, 47), or through the internal processes in the State (Roth, 31). Thus, it is quite clear that where a government is effectively replaced by another through legal means, the new government – having complied with both the territorial effectiveness test and the political participation test – may bind a State in international law.
The interesting legal questions arise where an illegal change of power leads to the existence, simultaneously, of separate de facto and de jure governments. In other words, which would be considered the legitimate government where – as claimed by Russian Ambassador to the UN Vitaly Churkin – an insurgent faction has successfully established itself as the de facto government by overthrowing an existing constitutional structure?
Ukraine Insta-Symposium: The Crisis in Crimea–The Protection of Nationals Abroad and the Legality of Ukraine’s Possible Use of Force in Self-Defense
[Sina Etezazian is a PhD candidate at Monash Law School, researching the prerequisites for the exercise of self-defense in international law.]
Although Russia has now distanced itself from the doctrine of the forcible protection of nationals abroad, and instead has opted to rely on “intervention by invitation” as the main basis of its deployment of force in Crimea, the rescue of nationals at risk overseas was its original premise for military action against Ukraine. It is therefore worth clarifying whether Russia was legally permitted to deploy force in Crimea to protect Russian ethnics or Russian citizens whose lives, Russia argued, were threatened by Ukrainian forces.
Even if the contemporary international law governing the defensive actions of states extends to the protection of nationals abroad, Russia’s deployment of force in Crimea appears to fall short of meeting the conditions of permissible self-defense. However, while the Russian intervention has constituted an act of aggression, not self-defense, I can see no possible legal justification under the present circumstances for resort to (individual or collective) self-defense against Russia.
An examination of state practice since 1945 reveals that only a limited number of states – such as Israel, Russia, the UK and the US – have invoked self-defense to use force with the alleged aim of protecting their nationals threatened extraterritorially. Furthermore, the rescue of citizens abroad often seems to be a manifestation of aggressive political ambitions rather than a genuine exercise of the right of self-defense. The United States, for example, in its interventions in the Dominican Republic (1965), Grenada (1983) and Panama (1989), used the justification that it had acted in self-defense to protect its citizens allegedly at risk in those states. However, US actionsin all the above instances received harsh criticism from the community of states, partly because the actions were disproportionate self-defense (The Yearbook of the United Nations (1965) 142; UN SCOR, 2491st mtg, UN Docs S/PV. 2491(27 October 1983) 5, paragraphs 38-9; Louis Henkin, “The Invasion of Panama Under International Law: A Gross Violation” (1991) 29 Columbia Journal of Transnational Law 293, 306, 308-9; Judith Gardam, Necessity, Proportionality and the Use of Force by States, 166-7), seeking to overthrow the governments of the states in which the US had intervened militarily (Christine Gray, International Law on the Use of Force (3rd ed, 2008) 88-92).
However, reacting to US interventions, states neither opposed nor supported the use of force for the protection of nationals abroad. Similarly, when Russia invoked Article 51 of the UN Charter to rescue Russian nationals allegedly threatened by Georgian forces in 2008, rather than challenge the doctrine in question, Western states disputed Russia’s motives behind its intervention in Georgia (Christine Gray, “The Use of Force and the International Legal Order” in: Malcom D Evans (ed), International Law, 615, 627), which was far from a proportionate use of force in terms of damage and loss of life inflicted.
The better view, thus, would seem to be that expressed by Tom Ruys in 2008 (page 35):
In conclusion, we have seen that, de lege lata, the long-standing controversy over the legality of forcible protection of nationals remains unresolved. The new element in state practice, namely the increased political tolerance vis-à-vis limited evacuation operations, is arguably counterbalanced by the negative opinio iuris reflected in the UNGA debates on diplomatic protection. Ergo, in the final analysis, United Nations practice is and remains inconclusive, implying that it is virtually impossible to deduce from customary practice to what extent attacks or possible attacks against nationals abroad may trigger the right to self-defence.
Hence, the legal basis for the coercive protection of nationals abroad in lawful self-defense appears to remain largely unclear. At best, the doctrine of protection of nationals abroad is very controversial
However, even if one assumes that the rescue of nationals at risk overseas falls within the scope of valid self-defense, it is very unlikely that Russia’s current deployment of force in Crimea falls within the limits of Article 51, as it may not satisfy the prerequisites of necessity and proportionality.
First, the “last-resort” criterion inherent in the principle of necessity dictates that self-defense is available to the victim state only when methods not involving force appear impracticable to settle the conflict. This view finds support in customary international law and in the jurisprudence of the International Law Commission (ILC) (para. 120):
The reason for stressing that action taken in self-defence must be necessary is that the State attacked (or threatened with imminent attack, if one admits preventive self-defence) must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. In other words, had it been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force. The point is self-evident and is generally recognized; hence it requires no further discussion.
In 2005, the Chatham House Principles on the Use of Force in Self-Defence, representing the work of a number of prominent commentators in the field, confirmed the ILC’s approach to the “last-resort” requirement in the following terms (pages 966-7):
Force may be used in self-defence only when this is necessary to bring an attack to an end, or to avert an imminent attack. There must be no practical alternative to the proposed use of force that is likely to be effective in ending or averting the attack.
In fact, when Russia chose to invoke the so-called right of the forcible protection of nationals abroad, diplomacy appeared practicable and effective in resolving the crisis; in other words, the “last resort” had not yet been reached.
Moreover, the force used in self-defense must satisfy the criterion of immediacy: unless there is an attack that can be proved imminent, the victim state may not be justified in resorting to self-defense. Even supposing that the use of force against nationals residing outside the victim state may be equated with an armed attack, there is no evidence that the lives of Russians in Crimea or other parts of Ukraine have been threatened with impending military force. It is therefore difficult to comprehend how Russia can validly engage in self-defense against Ukraine. It goes without saying that a response that fails to meet the demands of necessity is extremely unlikely to be considered proportionate defensive action.
The final point to consider is whether, in the given situation, Ukraine would have the right to act in individual or collective self-defense. The answer is no – despite the conclusion made by the Ukrainian Association of International Law that Russia’ military action in Crimea “provides legal grounds” for Ukraine exercising its right of individual or collective self-defense.
True, states’ reactions to the occupations of South Korea in 1950, the Falkland Islands in 1982 and Kuwait in 1990 leave no doubt that the commencement of occupation clearly amounts to the commencement of an armed attack. Furthermore, the 1974 Definition of Aggression and the Amendments to the ICC Statute have listed “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation…resulting from such invasion or attack” as an act of “aggression”. Thus there is little doubt that Russia has committed “aggression“. All this might suggest thatUkraine has an entitlement to self-defense, as embedded in Article 51, and the customary international law accompanying it.
However, at least in these circumstances, Ukraine’s possible use of force against Russia runs into the same obstacle with respect to the last-resort criterion as the Russian deployment of force in Crimea: given that “Russian troops have not so far used lethal force“, there still appear to be some prospects for the peaceful settlement of the conflict, which are likely to be practicable in dissuading Russia from continuing with its act of aggression. The fact that, on 7 March 2014, President Barack Obama had “a lengthy telephone talk” with his Russian counterpart, President Vladimir Putin, urging him to “seek a diplomatic solution to the crisis in Ukraine“, clearly illustrates this point.
Moreover, similar instances from the practice of states tend to support the proposition that, in cases akin to the occupation of Crimea, states have appeared more willing to pursue non-coercive measures in the first place. For example, in 1982, when the Falkland Islands, which belonged to the UK, were occupied by Argentine forces, the UK did not immediately decide to respond under the rubric of self-defense. Rather, British officials found force to be “necessary” only when it was made clear that peaceful means had been impracticable to resolve the problem– that is, when Argentina refused to abide by the relevant resolution of the UN Security Council demanding Argentina’s withdrawal from the Falkland Islands. Likewise, unless measures other than force are likely to be impracticable in rectifying the wrong created by Russian forces – that is, the occupation of Crimea – Ukraine (and its allies) may not lawfully resort to forceful measures against Russia within the confines of Article 51.
- Law and Boundaries is an interdisciplinary yearly conference that aims to discuss and propose new perspectives on the challenges the legal discipline is facing regarding its object, its function, its theoretical foundations and its practical outcomes. The organizers are calling scholars from all disciplines to submit their abstracts (250-300 words) before March 14th, 2014. Abstracts are accepted in English and in French. Please note however that presentations should be done in English, and that working papers should preferably be written in English. More information is here.
- The Academy on Human Rights and Humanitarian Law is callling for applications for the 15th annual Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th, 2014, in Washington DC. The program offers 19 courses taught by more than 40 prominent scholars in the field of human rights, in both English and Spanish. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission and Court on Human Rights, recognized members of NGOs and professors from all over the world. The Diploma is offered to a select group of 35 law professionals who fulfill the admission requirements. Access more information here.
Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.
Ukraine Insta-Symposium: Certain (Para-)Military Activities in the Crimea: Legal Consequences for the Application of International Humanitarian Law
[Remy Jorritsma (LL.M.) is a lecturer and teacher at the Department of International and European Law of Maastricht University.]
This contribution intends to demonstrate that Ukraine and Russia are involved in an international armed conflict, triggering the application of International Humanitarian Law (IHL). In particular, this post explores two relevant issues: the question of valid consent, and the legal qualification of the recent military hostilities.
In the Security Council meeting of 1 March 2014 the representative of Russia asserted that
[the Prime Minister of Crimea] went to the President of Russia with a request for assistance to restore peace in Crimea [which] appeal was also supported by Mr. Yanukovych, whose removal from office, we believe, was illegal.
Possibly such consent did not bring about an international armed conflict. Indeed, an international armed conflict (incl. occupation) does not exist when a host State allows another State to carry out armed activities on, or exercise control over, the territory of the host State (cf. SC. Resolution 1546(2004)).
However, the view that a semi-autonomous province and/or deposed Head of State can validly invite foreign troops against the express wishes of the central government makes no sense in light of the well-established principle of non-intervention. By virtue of their office the incumbent Head of Government/State and Foreign Minister are responsible in matters of a State’s foreign relations (Arrest Warrant, ICJ Reports 2005, §53). Neither the local government of the Crimea nor former president Yanukovych should be regarded as competent to issue valid consent to the presence of foreign armed forces, unless the central government of Ukraine agrees to this.
Given the present state of Ukraine, this outcome is not affected by the alleged unconstitutional nature of the ousting of former president Yanukovych. In the Tinoco case (1923) Costa Rica advanced the argument that the Tinoco government had not been a de facto government because of its unconstitutional origin. Sole arbitrator Taft rejected this, noting (at p. 381) that
[it would be a contradiction in terms] to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new [de facto] government.
Yanukovych’ claim to the presidency of Ukraine should be given little legal credit. His claim is opposed by an effective central authority that, by discharging regular administrative functions and controlling the governmental apparatus, including police and armed forces, is widely recognized as de facto government. In such a case, sparse non-recognition based on the alleged unconstitutional nature of the new government does not outweigh wide recognition based on effective control. Any presence of and action by foreign troops beyond the limits of consent given by the Ukrainian government in the past (eg in form of the Black Sea SOFA) must be regarded as hostile and possibly triggers the application of IHL.
According to common Article 2 of the Geneva Conventions of 1949 the application of International Humanitarian Law is applicable in three situations which amount to international armed conflicts:
(1) formally declared war;
(2) partial or total occupation, even without armed resistance; and
(3) any other (read: de facto) armed conflict.
President Putin asserted the right to invade Ukraine and even received parliamentary approval to use military force. Of course, such rhetoric is not, contrary to certain assertions by Kiev, tantamount to an explicit and formal declaration of war on Ukraine.
Instead, as from the beginning of March IHL, has become applicable as a combined result of the occupation of the Crimea and accompanying factual hostilities. Although it cannot be said with absolute certainty, it is reported that the so-called ‘local self-defence forces’ are in reality Russian armed forces who have removed their insignia, in which case their actions are by default attributed to Russia. In addition, Russia may even bear responsibility for acts committed by organized armed groups that lack a formal relation with Russia. The Appeals Chamber of the ICTY held that, in order to attribute acts of paramilitary groups to a State it has to be shown that the State exercises overall control over the course of their operations (see Prosecutor v. Tadić, Judgment, 15 July 1999, §131). Whether a State resorts to occupation or wages inter-State conflict by using its regular forces, or indirectly by using non-State actors as proxies to act on its behalf, the legal result is the same. Any hostile action undertaken by organized armed non-State groups in the Crimea is imputable to Russia if and to the extent that Russia exercises the required degree of operational control.
A situation of occupation as described in Article 42 of the Hague Regulations of 1907 exists when there is a hostile substitution of territorial power and authority; it is irrelevant ‘whether or not [the occupying power] had established a structured military administration’ (Armed Activities in the Congo, ICJ Reports 2005, §173). Through its military manoeuvres and presence Russia qualifies as occupying power: it has been able to establish territorial control and is demonstrably able to exercise its authority in the Crimea without the consent of the central government of Ukraine.
In addition, now that the first (warning) shots on the Crimea have been fired, I would submit that IHL applies as a result of the existence of a de facto state of armed conflict between Ukraine and Russia. The Commentaries to common Article 2 suggest that, regardless of the number of victims or the intensity of hostilities, an international armed conflict comes into being as a result of
‘[a]ny difference arising between two States and leading to the intervention of members of the armed forces’.
This low threshold of application is nowadays still maintained by the International Committee of the Red Cross, and is followed in the case law of the ICTY (see Prosecutor v. Tadić, Jurisdiction Decision, 2 October 1995, §70: ‘whenever there is resort to armed force between States’) and the ICC (see Prosecutor v. Katanga, Judgment, 7 March 2014, §1177, adopting the Tadić definition).
On the other hand, this “first shot” approach has recently been called into question. In its final Report the ILA’s Use of Force Committee suggested (at p. 13) that short-lived or low-intensity confrontations between states were excluded from the scope of application of IHL:
state practice [since 1945] indicated that states generally drew a distinction between on one hand, hostile actions involving the use of force that they treated as “incidents”, “border clashes” or “skirmishes” and, on the other hand, situations that they treated as armed conflicts.
Mary Ellen O’Connell, the Chair of the Committee, notes that the ICRC position may be based on policy rather than law. In my view, however, it appears to be exactly the other way around. The Committee report was only aimed to arrive at a “general” definition of armed conflict (see p. 3, at n. 7). It based its conclusions on a coalesced overview of inter-state and internal conflicts, doing injustice to the various existing types of armed conflicts and incorrectly conflating their distinct substantive criteria. Moreover, before taking into account subsequent State practice to interpret common Article 2, such practice must have duly constituted the agreement of the parties regarding its interpretation and thus be accompanied by the requisite opinio juris regarding its interpretative value. Affected belligerent states may well have treated minor incidents as not amounting to international armed conflicts out of political motives (eg to prevent escalation or loss of face) or for practical purposes (e.g., because the limited engagements did not cause any victims), rather than out of a strict sense of legal interpretation.
Instead, the exclusion of border clashes and other low-intensity (yet intentionally hostile) inter-State confrontations from the concept of armed conflict stands in contrast to the widespread acceptance of the Tadić definition for the very purpose of classifying non-international ánd international armed conflicts (see e.g., the summary of the debate on Article 2(b) of the Draft articles on the effects of armed conflicts on treaties, §206-213). Therefore, and to avoid these inter-State hostilities from taking place in a legal vacuum, IHL must be respected as from the moment of the actual opening of hostilities between Ukraine and Russia.
Unfortunately Russia has resorted to a mixture of legal and extralegal arguments to exonerate itself. That being said, the application of IHL rests on factual criteria relating to the identity of the parties and the character of hostilities. As a result of the current situation Ukraine and Russia must now be regarded as bound by, on one hand, customary international humanitarian law and, on the other hand, obligations undertaken by them in treaties applicable to international armed conflicts, most importantly the four Geneva Conventions of 1949 and its First Additional Protocol of 1977.
Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).
The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.
(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)
All in all, another terrible day for the OTP.
I normally find scam emails amusing — especially the one where Ban Ki-moon wants to give me “scam compensation” in the amount of $500,000 on behalf of the “World Bank/United Nations Assisted [sic] Programme.” But the one I received today is just sick:
I know this email will surprise you. Please accept my offer for charity plans. My name is Mrs. Halima Izar. I am a rich Syrian woman of 66 years. I was married to the director of (IZAR SEAFOOD LTD) located in China and Cambodia. I am seriously suffering from the chemical gas attack that affected us in August in Damascus. My entire families died by that attack. My condition is hopeless to survive. Nobody to call for help. I am using my doctor’s android phone to send you this email. I want you to take over my funds in Cambodia for charity plans and humanitarian aid for Syrian refugees, and motherless, less privileged, widows in your country. I pray Allah to help us. I have $10,800.000.00 in my Bank. I will offer you 12% for your commitment. My lawyer in Cambodia will direct and arrange the release of the funds to you. I have informed him of my intension to appoint you receive this funds. His contact is below:
Barrister. Toek Sreymao
E-mail: toeksreymao [at] gmail [dot] com
May God Bless You.
Using chemical-weapons attacks in Syria to try to cheat naive people out of their money is revolting. I hope God does something to “Mrs Halima” other than bless her.
This week on Opinio Juris, we continued to follow the situation in Ukraine as it unfolded with an insta-symposium. Alexander Cooley gave an overview of the power politics at play, while Chris posted about Russia’s use of legal rhetoric as a politico-military strategy, and about how language affects the evolution of international law. This last post built on a discussion between Julian and Peter in which Julian argued that the crisis shows the limits of international law, while Peter took aim at the Perfect Compliance Fallacy.
Further issues of compliance with international law were raised by Aurel Sauri, who analysed when the breach of a Status of Forces Agreement amounts to an act of aggression, by Mary Ellen O’Connell’s post on Ukraine under international law, and by Julian who asked whether a Crimean referendum on secession would be contrary to international law. In a follow-up post on the referendum, Chris surveyed the current state of international law on the right to secede and self-determination. In response to a reader’s comment, Chris also delved into the issue of recognition to figure out who speaks for Ukraine.
Peter examined the legality of Russia’s extension of citizenship to non-resident native Russian speakers and pointed to the legal basis for President Obama’s decision to impose entry restrictions in response to the Ukrainian crisis.
In other news, Julian asked why the US did not call the knife attack in the Kunming railway station a terrorist attack, Charles Blanchard provided a guest post on autonomous weapons, and Duncan updated us on the US Supreme Court’s latest treaty interpretation case.
Many thanks to our guest contributors and have a nice weekend!
[Alexander Cooley is Professor of Political Science at Barnard College, Columbia University in New York and author of Great Games, Local Rules: the New Great Power Contest for Central Asia (Oxford 2012).]
Among the many political layers of the crisis in Ukraine, I am especially interested in how these unfolding events are part of a broader attempt by Russia to confront the West’s broadly “liberal world order.” By the term I mean not only its most visible organizations such as NATO or the EU, but also the broader system of international rules, organizations, non-governmental advocates, and normative assumptions that have underpinned Western political engagement with the post-Communist space since the Soviet collapse. In Ukraine, we are now seeing this order in open conflict with Russia’s revisionist “great power” legal and normative grammars, as Chris Borgen has described them, though Moscow’s brazen response in Crimea is more of an act of international desperation than we might initially realize.
From the outset of the 1990s, US policy has been to promote the “sovereignty and independence” of the post-Soviet states. These remain code words for extricating them from Soviet era legacies and ties to Russia, and integrating them into new international organizations, laws, infrastructures and governance institutions. The more advanced reformers applied for membership in the European Union and NATO, but throughout the region Western economic and legal advisors instructed governments in reform, while non-governmental organizations and regional bodies such as the OSCE assumed that a common normative space would be forged on the values of the Helsinki Accords themselves.
Vladimir Putin’s ascendency to the power in 1999 initiated a renewed bid to consolidate a hollowed out state power at home and elevate Russia’s global status by forging new forms of security ties to its former republics. After a brief period of cooperation following the events of 9/11, US-Russia relations steadily deteriorated in the 2000s as interests came into open conflict on important issues such as the US plans to deploy a missile defense system, NATO expansion, and the Iraq War.
But it was the so-called Color Revolutions in Georgia (2003), Ukraine (2004) and Kyrgyzstan (2005) that redefined the scope and terms of this new power politics within Eurasia itself…
Russian Prime Minister Dimitry Medvedev yesterday announced a legislative initiative to fast-track citizenship for non-resident native Russian speakers. He didn’t single out ethnic Russians in Ukraine, but the context says it all. The citizenship shift (variations of which have been floated since the Maidan erupted last month) would allow Russia to amplify its protective justification for the action in Crimea. It wouldn’t just be protecting co-ethnics, it would be protecting fellow citizens. Russia similarly put citizenship policy to use in the South Ossetia action in 2008.
1. The citizenship policy would be consistent with international law. The only constraint on the extension of citizenship after birth is that it be volitional on the part of the individual. Russia couldn’t simply impose Russian citizenship on Ukrainians en masse, for example. Otherwise, citizenship policies can be as relaxed as a country wants them to be (it’s when they are too tough that international norms come into play). Russia certainly has a closer link to Russian speakers in Ukraine than, for instance, most Sephardic Jews do to Spain, and yet nobody is complaining about the latter.
2. Protecting citizens abroad does not justify uses of force or other acts of aggression. Putin is working from the 19th/20th century playbook in framing military action in protective terms. That’s the irksome part: integrating citizenship policy into expansionist designs. (Spain is not going to use the pretext of protecting Sephardim as the basis for military operations in France.) Traditional international law accepted the use of force to protect nationals against foreign depredations — the U.S. justified scores of military actions on that basis (presidents still do, as a matter of domestic constitutional law, for purposes of constitutionally legitimating the use of force in the absence of congressional approval). Leaving aside narrow exceptions — military deployments should be consistent with international law where necessary to safely evacuate citizens from trouble zones — that’s no longer okay. In other words, the presence of even a large number of Russian citizens in Ukraine adds no weight to Russia’s case for military intervention.
3. Ukraine’s threatened criminalization of dual citizenship is more problematic. Ukraine prohibits dual citizenship, though the ban is apparently underenforced. By way of a counter-move to the Russian proposal, a bill before the Ukraine parliament would impose fines on dual citizens. Dual citizen voting and office-holding would be subject to prison sentences of up to 10 years. Other countries bar dual citizens from officeholding (many through constitutional bars); none bars dual citizen voting. Prison sentences for either would be without precedent. Ukraine would be on firmer ground stripping the citizenship of those having or acquiring Russian citizenship. But that move would create problems of its own, and would hand Russia an additional argument in the (largely false) narrative that Russians are being oppressed in Ukraine.
The bottom line: this is a nothing-burger. Probably the most important consequence of the new Russian policy would be to open the door for newly minted citizens to move to Russia. If Russia’s happy having them, that’s its business, not ours.
[Mary Ellen O'Connell is the Robert and Marion Short Professor of International Law and Research Professor of International Dispute Resolution at Notre Dame School of Law.]
Russian troop movements in Crimea have catapulted international law to the center of a tense political-military drama. U.S. Secretary of State John Kerry has charged the Russians with an act of aggression. Russian President Vladimir Putin has parried with arguments in justification and counter-claims involving unlawful Western uses of force.
The very form of these exchanges raises some hope the crisis will be resolved peacefully and the prohibition on the use of force will emerge re-invigorated. Secretary Kerry’s charge of aggression is accurate only under a classic interpretation of the international law on the use of force—one that the U.S. has moved away from steadily since 1999. Making the charge indicates a new awareness in the U.S. executive branch of the importance of the international law on the use of force. In the case of the Ukraine, its rights under international law are its most powerful tool vis-à-vis Russia. The use of military force is not an option; counter-measures need to be aimed at the enforcement of clear legal principles to be permissible and effective.
Events in Ukraine are still unfolding, but some of the established facts help with the legal analysis. Russia and Ukraine have a 1997 treaty, extended in 2010, that, among other aspects, permits the Russian Navy to have facilities in Crimea until 2042. The treaty also permits Russia to station up to 25,000 troops in Crimea; Russia has 16,000 there now. It appears that on March 1, Russia moved 6000 troops beyond its naval facilities in the midst of the turmoil in Ukraine’s capital, Kiev. Credible reports indicate that many in Crimea support these troops, including armed, uniform-wearing persons. Russian troops have not so far used lethal force and Ukrainian forces loyal to Kiev remain at their bases. The interim government in Kiev has demanded that all Russian troops withdraw.
Secretary Kerry is correct that this set of facts could constitute aggression. Aggression is any serious violation of Article 2(4) of the United Nations Charter. Article 2(4) generally prohibits the resort to military force. The Charter contains only two narrow exceptions to this prohibition: self-defense if an armed attack occurs (Article 51) and with Security Council authorization (Article 39-42). Some specialists in this area also believe there is a right to intervene upon the invitation of a government.
The 1974 United Nations General Assembly Resolution 3314 supplies additional detail to this basic definition. Under Article 2 of the Resolution, any first use of force in violation of the Charter is prima facie evidence of an act of aggression. Article 3 lists specific examples of aggression, including the relevant example for the case of the Crimea:
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
Russia does appear to be in violation of the 1997 treaty and, therefore, in breach of Article 2(4). This conclusion requires that the interim government in Kiev has authority to reject Russian troops moving beyond their bases, and rejecting the view that the interim government in Kiev is unconstitutional and has no right to demand Russian troops return to their bases. This position reverses assertions the U.S. had the right to act on an invitation of the Kosovo Liberation Army in attacking Serbia. (It should be noted that the KLA at the time it acted to draw NATO into its bid for independence from Serbia was on the U.S. list of terrorist organizations, which is not true of independence groups in Crimea seeking Russian assistance.)
In addition to invitation, President Putin has argued “that the people of Crimea, a mixture of Russians, Ukrainians and Tatars, should be allowed to ‘determine their own future,’ comparing them pointedly to Kosovars, who, after a NATO air war, ultimately declared Kosovo’s independence from Serbia in 2008.” The United States never put forward any legal justification for the use of force in the Kosovo Crisis of 1999. On a classical reading there was no justification. Recently, Harold Koh writing in a blog post tried to defend the Obama administration’s advocacy for an attack on Syria in August and September as well as the 78-day bombardment of Serbia in 1999. He said both could be compared to the desegregationist position in Brown v. Board of Education. The unlawful use of force in Kosovo and Syria was an attempt by the U.S. to change the law for the better.
Koh’s position is flawed in many respects as respondents David Kaye and Carsten Stahn point out. The most basic logical flaw is that Koh attempts to defend an unlawful means to a good end—using unlawful military force to protect human rights with a means that is the good end: ending segregation in schools.
In the course of his argument, he also opines that the UN Charter is “obsolete.” This word is, of course, the same used by Judge Alberto Gonzalez, who called the Geneva Conventions “obsolete”. Secretary Kerry’s charge of aggression can, hopefully, be read as a rejection that the Charter is obsolete, that human rights can be protected through bombing and military force, or that there is ever any right to use military force to punish, as was advocated in Syria.
President Putin also argued that any armed groups in Ukraine were not Russian troops but local militias. Russian Foreign Minister Sergei Lavrov has asserted the same. This reminds me of the many arguments for the use of force during the Cold War. Almost invariably the U.S. or the Soviet Union would attempt to manipulate the facts, but not attempt to distort the law. They wished to hold each other to the international community’s law. From Hungary to Vietnam to Czechoslovakia to Afghanistan to Nicaragua to Grenada to Panama, “invitations” were obtained in one way or another.
If these manipulations of the facts were ever accepted, in our age of social media with cameras everywhere, there is really little chance of succeeding with such fiction in the future. True, the U.S. fiction of being involved in a worldwide “armed conflict with Al Qaeda, the Taliban, and associated forces” seems still to be accepted in some quarters. That acceptance is likely based on preference for the policy of military attacks beyond armed conflict hostilities rather than real belief of a right to use military force in such situations. Such attacks violated the restrictions on the use of force and should come to an end as the U.S. turns to international law to support Ukraine.
Putin also made counter-claims, citing U.S. actions
“… in Afghanistan, in Iraq, in Libya, where they acted either without any sanction from the U.N. Security Council, or distorted the content of these resolutions, as it happened in Libya,’ … ‘There, as you know, only the right to create a no-fly zone for government aircraft was authorized, and it all ended in the bombing and special forces in ground operations.’ …”
Putin is correct about the serious breach of Article 2(4) involved in Iraq and the excessive use of force in Libya and even Afghanistan. Unfortunately for Russia, in international law on the use of force, the wrongdoing of one state does not justify the wrongdoing of another.
The international community should come together to support Ukraine’s rights under international and reiterate the importance of rules against aggression and all forms of the unlawful use of force.
As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:
lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.
It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”
“Crimea was, is and will be an integral part of Ukraine,” he said.
The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.
There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine. This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.
Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.
If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).
We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)
It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.
The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.
Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:
The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.
The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.
By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law. Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.
I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.
Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.
Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.