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Europe

Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. (more…)

Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?

by Julian Ku

I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

Who Speaks for Ukraine?

by Chris Borgen

[Expanding and moving this up from the comments section of my previous post.]

In a comment to the previous post, reader “Non liquet” noted that:

The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.

“Non liquet” also linked to this Yahoo News article, which reported that:

“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”

“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”

“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a  government.

But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

In a U.S. State Department press conference this past Friday, the spokesperson said:

We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.

I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.

Russia, clearly, disagrees… (Continue reading)

The Crimea, Compliance, and the Constraint of International Law

by Chris Borgen

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)

Russia Reminds the World (and International Lawyers) of the Limits of International Law

by Julian Ku

I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine.  Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here.  When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.

Which brings me to the Ukraine crisis.  I agree with Erik Voeten that international law and institutions will be helpful in other ways.  And I think Chris provides very helpful analysis of how international law can shape official state rhetoric.  But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in  Ukraine.  This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.

In academic terms, the failure of the Charter  is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works.  Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions.  But where states no longer have such a rational self interest, states will depart from those legal norms.  Compliance with international law for the sake of complying with international law is naive and unrealistic.

The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea.  States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions.  And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.

I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies).  The key thing to focus on in this crisis are the interests of the different states (and leading groups within states).  State interests are driving actions here, and the Charter violation seems to be doing almost now work.

The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations).  The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.

International law can be, and often is, a very important tool for facilitating international and transnational cooperation.  But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.

Russia’s Intervention in Ukraine: Legal Rhetoric and Military Tactics

by Chris Borgen

Saturday began with reports that Russia had seemingly used private security contractors to take control of the airport in Simferopol, Crimea. Then reports (like this one from CNN) of President Putin requesting from Russia’s Parliament an authorization to use military force in Ukraine because of “threats to the lives of Russian citizens and Russian military personnel based in the southern Crimean region.” Grigory Karasin, Putin’s official representative in the upper house of the Russian parliament, told the Russian government-funded news outlet Russia Today that The approval, which the president will receive, does not literally mean that this right will be used promptly.”

But, less than a day later it was becoming increasingly clear that those weren’t contractors. And Putin hadn’t been waiting. The New York Times:

Russian troops stripped of identifying insignia but using military vehicles bearing the license plates of Russia’s Black Sea force swarmed the major thoroughfares of Crimea, encircled government buildings, closed the main airport and seized communication hubs, solidifying what began on Friday as a covert effort to control the largely pro-Russian region.

So, why is Russia militarily intervening in Ukraine?  The quasi-legal arguments coming from Russia on Saturday  were the same basic arguments that Russia used in justifying its military intervention in Georgia in 2008. In that case, Russia argued that it was acting as a guarantor of peace in the region and had intervened to protect both South Ossetian civilians, Russian nationals, as well as the defense of its military units that were already in South Ossetia.

As for its actions in Ukraine, the reference to the defense  of the Russian forces in Sevastopol was probably meant to argue that Russia was not in violation of the Budapest Memorandum which states in paragraph 2:

The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.

[Emphasis added.] I don’t think anything that has occurred in Ukraine rises to the point of Russia have a claim to Article 51 self-defense, but at this point, this isn’t about adjudicating claims, the Russian strategy is about misdirection and wrapping what it does do in a mantle of (seeming) legality. Well, not so much a mantle as a fig leaf.

Consequently, given the centrality of the norm of non-intervention, the self-defense argument sounds weak to my ears. But consider how the situation in Ukraine is being reported by the Russian-government  funded news source, Russia Today:

The move is aimed to settle the turmoil in the split country.

The upper house of the Russian parliament has voted in favor of sending troops to the Autonomous Republic of Crimea, which would ensure peace and order in the region “until the socio-political situation in the country is stabilized.

…The common notion was that since the power was seized in Kiev, the situation has only been deteriorating with radical nationalists rapidly coming to power and threatening the lives of those opposing their actions, most notably the Russian citizens living in Ukraine.

The developments follow an appeal by the Prime Minister of the Autonomous Republic of Crimea, Sergey Aksyonov, who requested that Russia to help cope with the crisis and ensure “peace and calm” in the region.

Russia as stabilizing force, reacting to a “deteriorating” situation in a “split country” where “radical nationalists” are threatening the lives of Russian citizens.  And this is in response to a request from the Prime Minister of the Autonomous Republic of Crimea. Keep your eye on increasing references to Crimea’s autonomy.

As in the Georgian intervention, Putin focuses the need to protect Russian nationals and the importance of self-defense of Russian troops. But, as mentioned above, I have seen no credible reports that either the Russian naval base in Sevastopol or the majority ethnic Russian population of Crimea was ever threatened by the Ukrainian government.

So why intervene now? Perhaps more relevant to the actual reason for Russia threatening to act at this point is the February 27 announcement by the new Ukrainian government of its interest in signing the Association Agreement with the EU that President Yanukovich refused to sign at the last minute, triggering the unrest that has convulsed Ukraine. Russia had previously mentioned the issue of secessionism, before there was even any unrest, in the run-up to the EU’s Vilnius summit, when Ukraine was originally supposed to sign the Association Agreement with the EU. At that time, back in September, Russian politicians issued warnings that if Ukraine does not reject the EU association program, it would run the risk of Russia supporting the partitioning of  Ukraine to support Russian nationals there. Civil unrest was not at issue then, only Ukraine agreeing to sign the Association Agreement.  While Yanukovich actively courted Putin, and ultimately set aside signing the Association Agreement, Putin as of this past week was facing an interim government in Kiev with which he had no easy political levers to pull. And they said they wanted to associate with the EU. So, military intervention as an extension of politics.

What we saw on these last couple of days was one more example of Russia actively using legal rhetoric as part of its politico-military strategy. This “law talk” does have two potential effects: (a) it makes arguments to which other countries in the international community attempt to respond,  and (b) it reassures the Russian public of the rightness of their cause.  News cycles on Saturday were focused on the Russian domestic process of Putin seeking an authorization to use force and the international discussions and debates over the legitimacy of Russia using force unilaterally.

Meanwhile, there was some confusion about what was happening “on the ground.” Just who are those camo-wearing armed men? Locals? Contractors?  Oh, no. The Russian military.

This misdirection and confusion may be Russia’s third reason for using legal rhetoric in this case. Putin is allegedly an avid chess player. This was a lesson in using legal rhetoric as a feint, while the real action was elsewhere on the board.  You only grasped the new situation once the pieces were already in place.  But, while this was a tactically deft set-piece using coordinated law talk and military force, international law has a way constraining actions when and where people least expect it.  The efficacy of Putin’s longer-term strategy remains to be seen. Of course, this depends on Russia’s goal.

Putin would doubtlessly most desire Ukraine to turn its back on the EU and join the Russian-led Eurasian Customs Union. Given the popular protests of the recent weeks, that is an all but impossible at this point. Short of that, Russia could attempt to impede Ukrainian association with the EU and remain a necessary party in any discussion of Ukraine’s future. So what might be  Russia’s next moves? And what may be the roles of international legal argument and international institutions in the strategies of Russia, Ukraine, the EU, and the U.S.?

I will consider these questions in my next post.

Don’t Panic! The Budapest Memorandum Does Not Require US and UK to Defend Ukraine

by Julian Ku

Lots of reports, including those from the new Ukrainian government at a meeting of the UN Security Council, suggest that Russian military forces have crossed into Ukraine. This has caused a mild panic on Wall Street and some typically overwrought press reporting from, just to give an example, Britain’s Daily Mail.

A treaty signed in 1994 by the US and Britain could pull both countries into a war to protect Ukraine if Putin’s troops intervene.

Bill Clinton, John Major, Boris Yeltsin and Leonid Kuchma – the then-rulers of the USA, UK, Russia and Ukraine – agreed to the The Budapest Memorandum as part of the denuclearization of former Soviet republics after the dissolution of the Soviet Union

Technically it means that if Russia has invaded Ukraine then it would be difficult for the US and Britain to avoid going to war.

Uh…no it doesn’t. At least not from my reading of it.  It might be a good idea for the US to stand up for Ukraine’s territorial integrity, and it is true that the Budapest Memorandum commits Russia to respect Ukraine’s sovereignty and territorial integrity (I thought Russia’s president wanted to respect international law?).  The UN Charter does that anyway. The Memorandum does not in anyway obligate any country to intervene in order to guarantee Ukraine’s territorial integrity.

In other words, it is not a security guarantee, like the kind that the US has with Japan. It is also not a formal treaty which, at least under US law, would have more binding impact.  So relax, American doves, it’s 2014, not 1914.  International agreements will not lead us blindly to war (sorry, Ukraine!).

 

International Law: Not Helping to Resolve the Ukraine Crisis

by Julian Ku

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?

The Cossacks: A Legal Primer

by Chris Borgen

The recent altercation between members of Pussy Riot and Cossack militia that was caught on video is a red flag signalling a broader issue in the Russian Federation: the resurgent power of the Cossacks and their relation to the Russian state, especially to keep politically-disfavored groups in check.

But who are the Cossacks?  A paramilitary organization? A political party? An ethnic group? And what are they doing at the Sochi Olympics?  This post will try to explain a little about who the Cossacks are, their role in Russia today, and the legal implications for human rights, minority rights in particular, and the use of state power.

The word “Cossack” summons for many images of mustachioed horsemen with bearskin hats. But, as one CNN report put it, “the Cossacks have long symbolized rebellion and military might in Western and Southern Russia and Ukraine.” Today’s Cossack organizations provide contracted-for security services for Russian regional governments.  Aleksandr Tkachev, the governor of Russia’s Krasnodar region, in which Sochi is located, has been at the forefront of contracting with the Cossacks (although, as I’ll explain below, this has been supported from the Presidency on down). About 400 Cossacks are being used as security in Sochi. But this is just the tip of the iceberg.

As for the utility of  having Cossacks–a non-state (or perhaps quasi-governmental) entity–provide security services, the official line seems to be that Cossacks will have greater leeway for action. CNN again:

“What you cannot do, a Cossack can,” Krasnodar Gov. Aleksandr Tkachev explained to local police.

His comments sparked an outcry from Sochi natives, minorities and migrants. Analysts say it is not a coincidence that the Cossacks’ revival is taking place as nationalism and xenophobia are on the rise in Russia.

[Emphasis added.]

The Pussy Riot incident in Sochi is simply the most obvious example of a larger trend that could have important implications for the rule of law in Russia and in former Soviet republics. But before looking at the current situation in greater detail, some history and context is needed…

(Continue Reading)

Ukraine: Background, Sanctions, and the Sword of Damocles

by Chris Borgen

The BBC is reporting that dozens of people have died today in new fighting between police and protestors in Ukraine.  For a background to what is underlying the protests, see these posts concerning the struggle over the norms that will define Ukraine,  how Ukraine’s domestic disputes interact with Russian and European regional strategies, and the significance of the eastward spread of the protests and Russia’s technique of push-back against the norm-based arguments of the EU.

Some of these themes are echoed in the BBC report:

Ukraine seems be caught in a modern “Great Game”. Vladimir Putin wants to make Russia a global economic player, rivalling China, the US and EU. To that end he is creating a customs union with other countries and sees Ukraine as a vital and natural element in that – not least because of the countries’ deep cultural and historical ties.

The EU says assimilation and eventual membership could be worth billions of euros to Ukraine, modernising its economy and giving it access to the single market. It also wants to reverse what it sees as damaging infringements on democracy and human rights in Ukraine.

Many Ukrainians in the east, working in heavy industry that supplies Russian markets, are fearful of losing their jobs if Kiev throws in its lot with Brussels. But many in the west want the prosperity and the rule of law they believe the EU would bring. They point out that while Ukraine had a bigger GDP than Poland in 1990, Poland’s economy is now nearly three times larger.

While the immediate issue in the streets of Kiev is an end to the violence, the medium-term Western response may be sanctions against Ukraine, particularly targeting the assets of President Yanukovich and his allies.

But, hanging over all of this like the sword of Damocles is the concern over the stability of the Ukrainian state. The previous Opinio Juris posts, the BBC report linked-to above, and others have noted the sharp electoral and linguistic (Ukraine-speaking/ Russian speaking) divide between western Ukraine and eastern Ukraine. Some have voiced concern that Ukraine faces a possible civil war or a break-up of the country.  Edward Lucas of The Economist has written in an op-ed in today’s (February 20) Telegraph:

Perhaps the authorities will decide that they cannot crush the protesters and will draw back, meaning months of tension, jitters and uncertainty. Even then, Ukraine’s territorial integrity has been shattered, perhaps fatally. In the west, government buildings have been set ablaze. The region – the old Austro-Hungarian Galicia – was the site of a decade-long insurrection post-war against Soviet rule. If pro-Moscow authorities in Kiev try to crack down there, civil war looms…

Equally worrying is Crimea – site of the Charge of the Light Brigade 160 years ago – which could now be the flashpoint for another conflict with Russia, with far more devastating effects. The region is on the verge of declaring independence from Kiev (a move likely to prompt Russian intervention to protect the separatist statelet).

The BBC report sounds a more hopeful note:

Some commentators suggest this shows the country is liable to split violently across the middle. But others say this is unlikely – and that many in the east still identify as Ukrainians, even if they speak Russian.

As I mentioned in my previous post on Ukraine, the answer to the question of whether or not there is civil war or secession, depends in part on what the protestors in the eastern part of the country are protesting about.  If they are willing to continue on the path to closer integration with the EU and set aside closer integration with Russia, then the strand of hair keeps the sword suspended. If the Ukrainians in the east just want Yanukovich out, but still want to avert integration with the EU and increase integration with Russia, then the strand doesn’t necessarily break, but it does fray, as the normative conflict over the future of Ukraine will persist.

But while the question of civil war and secession depends in part on the severity of normative friction in Ukraine, that is not the only determinant. Also important is what role Russia will play in either further exacerbating the conflict or finding a peaceful solution. In September, Russia raised the specter of secessionism in Ukraine, specifically linking it to Ukraine’s signing the EU Association Agreement. Russia actively supports secessionist movements in Moldova and Georgia, two other countries seeking closer relations with the EU. Whether President Putin believes that preventing Ukraine from  signing an Association Agreement with the EU is important enough to push that country to war remains to be seen.

The issue for today is ending the violence in the streets of Kiev. But that is the first step in a long road to finding stability in Ukraine.

New Book: Lewis, The Birth of the New Justice

by Kevin Jon Heller

I rarely get excited about a new book before I’ve read it — but I’m excited about this one, Mark Lewis’s The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950. Here is OUP’s description:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a “liberal legalism” and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives – liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

A book of this nature is much needed — the era between WW I and WW II has not received anywhere near enough attention from international criminal law scholars. I hope the book is good! (I will report back once I’ve read it.)