27 Feb International Law: Not Helping to Resolve the Ukraine Crisis
I’m getting more and more nervous about events in Ukraine, and particularly in the Crimea. Things are spinning (almost) out of control, and it is worth noting that international legal principles are not helping lead toward a resolution.
Instead of working out a negotiated transition, the new leaders of Ukraine have adopted a maximalist position by seizing power and then seeking to prosecute the former (?) president Viktor Yanukovych, They’ve done this by (apparently) accepting the ad hoc jurisdiction of the ICC, and making noises about turning Yanukovych (and others) over to the ICC.
Kevin raises a very good legal point: ICC ratification appears to violate Ukraine’s own constitution as interpreted by its own constitutional court. But the new leaders of Ukraine don’t seem troubled by that ruling (or even aware of it). So it is not surprising Yanukovych has retreated to Russia, where he can avoid both Ukrainian and ICC prosecutions. In any event, an ICC referral will lock in Ukraine to its current path, making a negotiated transition even harder.
International legal principles are also not much help in restraining a Russian military intervention. Russia appears to be mobilizing its military along the border, and the U.S. is warning against violations of Ukraine’s sovereignty. It would be ironic if Russia starts to make noises about a need for “humanitarian intervention” to protect the Russian minority in Ukraine (especially in the Crimea). It will also be ironic if the U.S. started demanding that Russia seek UN Security Council authorization for any use of force. The legal case for humanitarian intervention here is not very strong, but it is not implausible to think that retribution against ethnic Russians in Ukraine could happen. I doubt the legality will bother Russia much (it didn’t much worry about it in Georgia), but now that Russia made such a big fuss about international law governing the use of force over Syria, will it do so here? And will anyone care?
Julian: don’t be so quick to rule international law (e.g., UN art. 2(4)) out as a relevant restraint on Russian use of force. Let see what happens.
ON CRIMEA: It seems relevantto me the case of Kosovo. NATO (rectius, USA) screwed (excuse my un-tecnhical terms) Serbian sovereignty, regardless of the Security Council and Russian opposition in particular, using a mix of humanitarian and self-determination excuse. They did set the precedent Russia might use now. To avoid these situations over the centuries the principle of Westphalian sovereignty had affirmed itself. It is maybe time for NATO to realize his lack of foresight while screwing principles.