Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence.  Russia’s vague statements regarding the targets of its ‘protective intervention’ are properly suspect, however, because Russian diplomats have not defined the precise subjects in need of protection.  Over the past month, the statements from Russia’s Ministry of Foreign Affairs can be read as protecting: (1) Russian citizens resident in Ukraine (the number of whom is unclear); (2) ethnic Russians within Ukraine generally; (3) ethnic Russians within Crimea; (4) Jewish minorities within Ukraine; (5) Russian ‘compatriots’ – presumably, Ukrainians themselves, who ostensibly need protection from fundamentalist neo-Nazi Ukrainian nationalists; (6) speakers of the Russian tongue, who need national minority protection.

Given that so much of the prospective decision to intervene hinges on the unfolding factual situation in Ukraine, and the issue of actual effective control of a polyglot population, a fact-based inquiry of the type Julian Ku proposes seems central to the ongoing debate.  Indeed, as numerous Western and Russian diplomats have stressed, there is an urgent need for a fact-finding mission to Ukraine along with economic aid, technical assistance, and security protections. 

In the short space below, I want to argue precisely for this type of fact-finding mission.  The purpose of this type of inquiry—systematic, dispassionate, and taking into account the discoursive tropes emerging from Russia—is to get a better empirical understanding, and to avoid the propaganda pits Tim Snyder has spotted.  Take for example the argument regarding gross human rights violations within Ukraine, and the assertion of threats to minorities.  Many commentators, including Snyder, seem to trivialize the rampant anti-Semitism and incitement to violence coming from opposition leaders like Tyahnybok, the Svoboda Party, and the worrying relationship between the provisional government and the far-Right openly neo-Nazi groups.  The inclination to dismiss the rising tide of extremism as a natural occurrence in any radical political transformation (i.e., rise of Muslim Brotherhood from the ashes of Tahrir) is puzzling. 

Here’s how Tim Snyder assesses the threat from the Ukrainian far-Right.  In his view, the Svoboda party was a “house opposition,” propped-up by Yanukovich while he simultaneously gutted the political center.

The leader of Svoboda, according to opinion polls, has little popular support; if he chooses to run for president, which is unlikely, he will lose.

The radical alternative to Svoboda is Right Sector, a group of far-right organizations whose frankly admitted goal was not a European future but a national revolution against all foreign influences. In the long run, Right Sector is the group to watch.

Against this backdrop two very important questions must be asked.  First, if Svoboda is a less-radical alternative to Right Sector, then what does this says about Right Sector if parliamentarians globally, including members of Israel’s Knesset, have openly condemned the rise of anti-Semitism and Russophobia within Ukraine’s Svoboda party?  Second, if they are such fringe groups, then why were representatives of Svoboda (i.e., Tyahnybok) included in the provisional government? 

The short answer to both questions is this:  the far-right threat to national minorities in Ukraine is real and well-documented; it has been escalating in intensity in an inverse correlation to Ukraine’s economic collapse; the constellation of far-right groups seems to have supplanted the state police apparatus.  This latter point seems to be the reason why the government has included the far-right groups in its governing coalition.  It is an uneasy partnership of unlikely bedfellows desperately trying to muster effective control over the country.      

What does all of this have to do with international law?  First, as stated above, Russia can make (and seems to be making) a humanitarian intervention claim along the lines made for intervention in Libya, Syria, Kosovo, etc.  Russia’s argument is rather straightforward:

1. Ukraine’s provisional government is illegitimate because it came into power as a result of an armed coup; 

2. The armed coup forcefully deposed the democratically elected president;

3. The provisional government does not exercise effective control over the territory of Ukraine, and in fact, does not exercise effective control over large portions of the capital, Kiev;

4. The first legislative act of the provisional government—banning Russian as an official language—indicates a desire to suppress the rights of a significant national minority within Ukraine;

5. Reorganization of the Ukrainian defense ministry shows possible collusion with leaders of Right Front (neo-Nazi) militias;

6. Escalation of violence throughout Ukraine shows inability of provisional government to protect national minorities;

7. Documented incendiary rhetoric from Maidan and other acts of incitement to violence have the potential of inciting large scale pogroms, in line with Ukraine’s tragic history of ethnic violence; 

This position has been expressed by Vitaly Churkin, Russia’s permanent representative to the UN, Russia’s foreign minister Sergey Lavrov, and each empirical claim has been corroborated by numerous credible press reports (both Western, Ukrainian and Russian).  The Strategic Culture Foundation, a Moscow-based think tank headed by former Politburo member Yuri Prokofiev, has explicitly drawn a parallel to Syria, noting that “the realization of a national radical project [in Ukraine] would have meant a second Syria, including acts of genocide, internal displacement, destruction of large industrial facilities, ripe with environmental and industrial disasters.” 

If the facts are relatively undisputed, why, then, have Russia and the West drawn such diametrically opposite normative assessments of the situation?  First, Russia’s own well-documented efforts to stifle civil society have created a trust deficit between the current administration and domestic constituencies.  ‘Independent observers,’ groups and NGOs that are allowed to exist, like the Strategic Culture Foundation, often have very questionable ties to the current government or previous administrations, and have their own spotty histories of nationalist rhetoric.  Consequently, Russian analysts have not been able to either speak with one voice on the issue, nor have Russian international lawyers offered comprehensive analysis of the situation in Ukraine—despite widespread media and online coverage of the correctness of Russia’s ‘international law position.’  Second, as former US Secretary of State Henry Kissinger recently noted, the standoff between Russia and the ‘West’ (EU and US) has marked an unfortunate return to Cold War hostilities.  This means that attempts to lend objective analysis are at risk of becoming increasingly politicized, polarized and polemicized.  Even in the U.S. academic blogosphere, the suggestion that one line of analysis constitutes a “critique on US international law scholars” is eerily reminiscent of Cold War antagonism.  The suggestion that U.S. international law or international relations scholars speak with one voice on the issue is as wrong as the presumption that Russian international law or international relations specialists are homogenously and unequivocally in support of the Kremlin’s dangerous rhetoric of intervention.  My argument, instead, has been nothing more than a preliminary attempt to unlock the blind spots and ambiguities in both Western and Russian accounts of the situation in Ukraine. 

The point that I have stressed repeatedly is that factual claims underpinning the argument need to be taken very seriously by European and other interested observers.  The Ukrainian far-Right network is a very real and growing threat to peace and security in Europe.  Second, the debates that have unfolded over the past weeks show the limitations of crude positivism.  Attempts to dismiss legitimate Russian claims of persecution of national minorities (not just ethnic Russians, and not just in Crimea) as mere ‘questions of fact,’ as though the facts will be disputed later at some point before a neutral fact-finder, ignores the urgency pregnant within those facts: and that is, the rise of a strong, armed, well-organized fascist political force in the heartland of Europe.  The comparisons to Srebrenica and Rwanda need to be made forcefully here given the current passions across large swaths of Ukraine’s population.  Third, it should be clear that positivist arguments on both sides of the self-determination/humanitarian intervention/R2P coin have tended to elide far more important considerations of collective security, human rights, and development over the longer term.  If the experiences in Kosovo, Libya, Iraq, Afghanistan, South Sudan, Georgia, Syria over the past decade have shown anything, it is that the decision to intervene (and the international legal apparatus that considers, rationalizes, enables that decision), while important, is far less important than the developmental/governance aspects following the intervention.  Echoing Henry Kissinger’s assessment on the situation in Ukraine, color revolutions should not be measured by the rupture of the bloom that enables them, but by the fruit they yield. 

To close, international law has a far better toolkit for understanding the developments in Ukraine, and that is the dialect of colonialism.  Eminent international law scholars, like SOAS’ Matthew Craven (and allies in the Third World Approaches to International Law movement), have written on the lasting legacy of colonialism globally, as well as in the heartland of Europe.  Despite being the best analytical and historical frame by which to understand the developments in Ukraine, colonialist critiques have only been raised in crude assertions by Russia of NATO’s expansion into Russian historical ‘sphere of influence,’ and in subliminal messaging to Ukraine that it is better to build strong ‘compatriot’ ties with Russia than a relationship of vassalage with the EU.  Conversely, the rhetoric of expansionism/19C territorial conquest/imperialism is boldly deployed against Russia (for whom Crimea does symbolize imperial glory).  Missing from this Great Game is any serious acknowledgement that Ukraine remains the only multi-national, post-colonial state within Europe (Moldova’s frozen status, and Russia’s vast dominions and uneasy historical relationship with Europe aside).  In fact, what we are seeing now in Ukraine is a culmination of three centuries of European nation-state-building, with costly detours towards pan-European empire, but a process that nonetheless destroyed remnants of imperial Europe in favor of Westphalian nation-states joined in a confederate order.  This is the conversation that international lawyers should be having— whether a nation-state model is desirable for Ukraine, which would mean further fragmentation in Ukraine’s East and South; how to facilitate state-building within Europe; what development strategies should be pursued to assure human dignity, peace and economic security; what will the EU-Russia relationship resemble if the process of nation-state building in Ukraine is completed.  Unfortunately, lest we turn the gaze upon ourselves as interlocutors in this inter-civilizational, inter-imperial conversation, Ukraine will continue to slide into chaos.