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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

by Sina Etezazian

[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 actions in 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 that Ukraine 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 “necessaryonly 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.

Ukraine Insta-Symposium: Certain (Para-)Military Activities in the Crimea: Legal Consequences for the Application of International Humanitarian Law

by Remy Jorritsma

[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.

Another Terrible Day for the OTP

by Kevin Jon Heller

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.

Ukraine Insta-Symposium: Ukraine Under International Law

by Mary Ellen O'Connell

[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.

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.

Ukraine Insta-Symposium: When does the Breach of a Status of Forces Agreement amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet SOFA

by Aurel Sari

[Dr. Aurel Sari is a Lecturer in Law at the University of Exeter.]

Over the last few days, a growing number of commentators and international actors have denounced the deployment of Russian troops in Crimea not simply as a violation of the sovereignty and territorial integrity of the Ukraine, but as an act of aggression. At its extraordinary meeting held on 3 March 2014, the Council of the European Union condemned “the clear violation of Ukraine’s sovereignty and territorial integrity by acts of aggression by the Russian armed forces”. On 4 March 2014, United States Secretary of State John Kerry followed suit at a press briefing held at the US Embassy in Kiev.

A prima facie case of aggression

Assuming for the sake of argument that the activities of Russian armed forces in Crimea do not benefit from the valid consent of the Ukraine (the question is at least arguable: see here and here), a good case can indeed be made that their presence and conduct fits the archetypical example of aggression, namely the ‘invasion or attack by the armed forces of a State of the territory of another State’ as defined in Article 3(a) of United Nations General Assembly Resolution 3314 (XXIX) on the Definition of Aggression of 1974.

In so far as aggression is said to constitute ‘the most serious and dangerous form of the illegal use of force’ (Preamble, Definition of Aggression), the situation in Crimea must reach a certain threshold of gravity in order to qualify as an act of aggression. Neither the exact level of this threshold nor the facts on the ground are established beyond all reasonable doubt. However, it is safe to assume that the deployment of Russian forces to maintain public order in Crimea and to blockade and occupy Ukrainian military premises and assets in such a continuous and robust manner as we have seen in the last few days rises above the level of a ‘mere frontier incident’ or ‘less grave forms of the use of force’ (Nicaragua, paras 191 and 195). As such, these acts may reasonably be characterized as aggression on account of their scale and effects.

Article 3(e) of the Definition of Aggression

As reported earlier, the Ukrainian Association of International Law has come to the same conclusion in its recent appeal regarding the events in Crimea. Amongst other things, the Association suggests that the Russian Federation has committed an act of aggression as a result of being in material breach of the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine of 8 of August 1997 (the Black Sea Fleet SOFA; see here in Russian). This argument raises an interesting question about the application of Article 3(e) of the Definition of Aggression. Pursuant to Article 3(e), the following acts shall constitute an act of aggression:

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.

Compared to some of the other acts listed in Article 3, the incidents envisaged under Article 3(e) of the Definition may appear relatively benign or even banal. Whereas an armed invasion, attack or bombardment will amount to an act of aggression only if it entails the use of force at a relatively high level of intensity, it seems that even a minor breach of a status of forces agreement could qualify as an act of aggression under Article 3(e) even if it causes no damage or destruction in the host State. Some commentators have therefore questioned whether Article 3(e) should have been included in the Definition at all.

The importance of contextual interpretation

State practice offers a number of examples where foreign armed forces are present abroad without the consent of the territorial State or another valid legal basis, yet their presence does not come within the Definition of Aggression. A case in point is the accidental ‘invasion’ of Liechtenstein by 170 Swiss troops who got lost in a military exercise in 2007. No one, it seems, has suggested that Switzerland has committed an act of aggression against Liechtenstein, despite the fact that this was not the first such intrusion. Despite the strict terms of Article 3(e), it seems that context is everything.

This point was certainly not lost on the drafters of the Definition of Aggression. The Six Power draft submitted on 25 March 1969 by the Australia, Canada, Italy, Japan, the United States and the United Kingdom defined aggression with reference to a prohibited purpose, thus giving rise to protracted debates as to whether the presence of an ‘animus aggressionis’ was a necessary element of aggression (see UN Doc A/7620). Eventually, any express references to aggressive intent were removed from the Definition. However, an implicit reference to intent was retained in Article 2 of the Definition, which declares that the Security Council may conclude that determining the prima facie existence of an act of aggression would not be justified ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’ Although Article 2 is specifically addressed to the Security Council, Article 3 declares that it must be applied ‘subject to and in accordance with the provisions of article 2’. This point is further underlined by Article 8 of the Definition, which provides that ‘[i]n their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.’ (more…)

Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today – Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

Guest Post: Autonomous Weapons at Chatham House: It’s Bentham versus Kant

by Charles Blanchard

[Charles Blanchard served as General Counsel of the U.S. Air Force from 2009-2013, and General Counsel of the Army from1999-2001, is currently a partner at Arnold & Porter LLP.  He was a panelist at a Chatham House conference on autonomous weapons.]

In the past year, proposals for an autonomous weapons ban have gone from a fringe notion to an agenda item for the Convention on Conventional Weapons this year.  Last week, I joined a diverse group at a Chatham House conference to discuss the issue.  The participants included advocates of a ban, technologists on both sides of the issue, government officials, and Law of War experts.  The conference was surprisingly useful in illuminating lots of common ground, and more importantly it illuminated the different philosophical differences between proponents and skeptics of a ban.

The degree of agreement was actually surprising, but also very helpful:

  • There was broad agreement that except in very unique battle spaces (where the likelihood of civilians was nonexistent), deployment of autonomous weapon systems today would not be consistent with the requirements of International Humanitarian Law (IHL).  One panel concluded that the current technological limits, when combined with IHL, has effectively created a temporary moratorium on completely autonomous weapon system deployment.
  • Even the proponents of a ban would not oppose completely autonomous weapon systems that targeted other machines—such as might be the case with missile defense systems in the future—assuming that the technology develops sufficiently to meet IHL requirements. To be clear, however, the proponents of a ban would oppose even a purely defensive system that targeted tanks, airplanes or other platforms with human beings on board.
  • While the proponents of a ban advocate for a ban on development, they seem to agree that a very narrow definition of “development” is appropriate.  They would not attempt to limit research and development of even dual us civilian uses of autonomy, and would not even oppose development of semiautonomous weapons technology as long as a human remains in the loop.  The development ban would be imposed on the creation of completely autonomous systems.

So what was the disagreement?  It centered on the following question:  if technology ever developed to the point that machines were more capable than humans in complying with IHL than humans, should autonomous weapons be banned?  The skeptics of a ban, such as me, argued that it would be troubling to accept more civilian casualties that would then result from a ban.  The proponents, on the other hand, argued that it would violate notions of human dignity to let a machine to decide who to kill.

While one advocate calls the aversion to allowing machines to kill the “yuck” factor, a panel of ethicists and philosophers illuminated what this difference is really about:  the skeptics (like myself) are advocating a utilitarian ethical scheme (the greatest good for the greatest number), while the proponents are applying Kant’s categorical imperative that no human being should be used as an instrument.  While a utilitarian would be focused on whether civilian (and military) casualties would be less if autonomous weapons were used, a Kantian would object to the removal of humans from the lethal decisionmaking altogether.  One panelist noted that Germany’s highest court had rejected a purely utilitarian view in overturning a law that allowed hijacked planes to be shot down.  Even though the passengers on the plane would likely die anyway, and shooting down the plane would save other lives, the German court concluded that the statue violated human dignity.

So what are we to make of this philosophical dispute?  To a great degree, warfare and the laws of war have arisen out of utilitarian philosophical frameworks.  Indeed, one could argue that the very use of military force against other human beings (even for a righteous cause) violates Kant’s categorical imperative.  And the IHL concept of proportionality—that attack on a military target is permissible even if there will be civilian casualties as long as the civilian casualties are “proportional” to the military value of the target—is expressly utilitarian and inconsistent with Kant.

Nonetheless, the development of IHL is itself a history of a battle of humanitarian concepts (Kant) against utilitarianism. Arguably, the Geneva Gas Protocol in 1925 was a victory of humanitarian concepts over pure utilitarianism. And the more recent bans on land mines and cluster munitions are also clearly motivated by nonutilitarian concepts.

Now obviously there is much more at stake here than this narrow philosophical dispute.  Purely utilitarian concerns about strategic stability—based on the fear that purely autonomous systems will make it more likely that countries will go to war—can also lead to concerns about these weapons.  But at their root, the debate here is whether the principle that only humans should decide to kill other humans is sufficiently important that we are willing to accept more death as a result.

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)

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!).