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International Security

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.

Can Crimea Secede by Referendum?

by Chris Borgen

As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:

lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.

It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”

“Crimea was, is and will be an integral part of Ukraine,” he said.

The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.

There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine.  This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.

Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.

If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).

We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)

It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.

The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.

Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:

The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.

The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.

By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law.  Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.

I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.

Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.

Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.

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…)

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)

Why Won’t the United States Call China Killings a Terrorist Attack?

by Julian Ku

While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China.  China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province.  But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.

I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation.  The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology.  To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.

the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—

(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;
Look, I get that this definition is quite broad, and is controversial in many countries. And I get that the Uighurs have real grievances. But the US government is already on the record in favor of the broad definition. So why hold back from using the term for an act the US already calls unjustifiable?

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 Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

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)

Schabas on the OTP’s Attempt to Reconsider Perisic

by Kevin Jon Heller

It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.