Responsibility to provoke? Aggression, self-determination and the Ukraine crisis

by Rhodri C. Williams

With four posts in a row on the tumult in Ukraine, it is starting to feel like this blog has joined Crimea in being overrun by Berkut riot police and Night Wolves biker gangs. But it is impossible not to be distracted by the parade of tragicomedy that almost hourly seems to turn all of our sanctimonious post-Cold War certainties on their head. And the point is that after three posts of, essentially, just trying to keep up with events, this is the one where I finally get to engage with the scrimmage of international law and self-determination discourses being hurled around.

First things first. There is little doubt that the Russian takeover of the Crimean peninsula is illegal under international law, and more specifically the rule against aggression that constitutes one of the central planks of the UN Charter. US Secretary of State John Kerry splashed out early on, decrying an “incredible act of aggression”, with Russia behaving in a “19th century fashion by invading another country on a completely trumped-up pretext.” More soberly, EU Foreign Ministers have condemned “acts of aggression by the Russian armed forces.”

Legally, the charges seem to stick. In a cautious, preliminary analysis in EJILTalk, Daniel Wisehart argues that neither of the relevant conventional exceptions to the non-aggression rule – self-defence or intervention by invitation – can credibly be invoked in this case. A recent appeal by the Ukrainian Association of International Law goes further to claim “not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia…” So, what is Russia saying?

The transcript of Vladimir Putin’s press conference yesterday (published in translation here in the Kyiv Post) gives perhaps the most updated answer, and with surprisingly eloquent incoherence. Reading it, one is inclined to agree with Chris Borgen at Opinio Juris, who sees the deployment of “quasi-legal arguments” as dubious high cover for a wrongful incursion, but question whether Russia may find these arguments stickier than they currently imagine:

…this is where Russia may find itself in a bind. If it tries to sit on a piece of Ukraine’s territory, it may find significant push-back from many states, going beyond those most directly involved in the Ukrainian crisis, because although many states may not have a geopolitical interest in the Crimea, many states do have an interest in how norms of military intervention and self-determination are interpreted.

But I am getting all ahead of myself. In his disquisitions to the press yesterday, Mr. Putin explicitly rejects the newest and most controversial exception to the non-aggression norm, the “responsibility to protect” (R2P), which allows interventions against governments failing to prevent the perpetration of the most heinous crimes, such as ethnic cleansing and genocide, against its own people. And yet, there is much of the spirit of R2P lurking behind an ostensible reliance on “invitations” to intervene from threatened Russian speakers:

What can serve as a reason to use the Armed Forces? Such a measure would certainly be the very last resort.

First, the issue of legitimacy. As you may know, we have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.

What is our biggest concern? We see the rampage of reactionary forces, nationalist and anti-Semitic forces going on in certain parts of Ukraine, including Kiev. I am sure you, members of the media, saw how one of the governors was chained and handcuffed to something and they poured water over him, in the cold of winter. After that, by the way, he was locked up in a cellar and tortured. What is all this about? Is this democracy?  ….

And do you know what happened when they seized the Party of Regions building? There were no party members there at all at the time. Some two-three employees came out, one was an engineer, and he said to the attackers: “Could you let us go, and let the women out, please. I’m an engineer, I have nothing to do with politics.” He was shot right there in front of the crowd. Another employee was led to a cellar and then they threw Molotov cocktails at him and burned him alive.  Is this also a manifestation of democracy?

When we see this we understand what worries the citizens of Ukraine, both Russian and Ukrainian, and the Russian-speaking population in the eastern and southern regions of Ukraine. It is this uncontrolled crime that worries them. Therefore, if we see such uncontrolled crime spreading to the eastern regions of the country, and if the people ask us for help, while we already have the official request from the legitimate President, we retain the right to use all available means to protect those people. We believe this would be absolutely legitimate. This is our last resort.

Regarding the Crimean peninsula, Mr. Putin flatly denies the breathtakingly obvious – that thinly disguised Russian armed forces have taken over, albeit with considerable local support – and portrays the current situation as an understandable reaction of legitimate local political organs and spontaneous self-defense groups to an ostensible threat from Kiev. Asked if he would support a move to unite Crimea with Russia, his denial is seasoned with a distinct whiff of ambiguity:

No, we do not. Generally, I believe that only residents of a given country who have the freedom of will and are in complete safety can and should determine their future. If this right was granted to the Albanians in Kosovo, if this was made possible in many different parts of the world, then nobody has ruled out the right of nations to self-determination, which, as far as I know, is fixed by several UN documents.  However, we will in no way provoke any such decision and will not breed such sentiments.

For Russian-speakers in eastern Ukraine, President Putin claims that the current situation represents a case of self-determination denied, though he later goes on to refer to the need for their inclusion in a nationwide constitutional process rather than a repeat of Crimean-style assisted self-help:

… the reaction that we are seeing from people is understandable, in principle. Did our partners in the West and those who call themselves the government in Kiev now not foresee that events would take this turn? I said to them over and over: Why are you whipping the country into a frenzy like this? What are you doing? But they keep on pushing forward. Of course people in the eastern part of the country realise that they have been left out of the decision-making process.

Mark Kersten argues in the Globe and Mail that these justifications are tantamount to an implicit invocation of R2P, but goes on to demolish both the rationale and the viability of such a claim:

Russia’s actions are hypocritical insofar as they undermine a principle Moscow deems to be holy in international relations and international law: the inviolability of state sovereignty. Russia has been adamant that any intervention to stop suffering and violence in Syria had to be approved by the Security Council. Now, as a response to unknown and unclear threats to Ukrainian Russians, Moscow appears more than willing to unilaterally throw Ukraine’s sovereignty to the wind.

It also isn’t clear precisely what threat the people of Ukraine face. There does not appear to be any imminent risk of genocide, crimes against humanity or ethnic cleansing in Crimea. Indeed, Russia’s use of R2P-type language is all the more precarious in that at least part of the threat posed to Ukrainians stems from Russia itself. The threat’s source is now rebranding itself as a protector.

But Russia’s use of R2P-type language isn’t fooling anyone. The invasion of Ukraine isn’t a case for R2P. If there is cause to pursue an R2P-type intervention in Ukraine, then the Security Council is, for better or worse, the only rightful authority to determine to authorize intervention. Intervening in the name of the responsibility to protect cannot be unilateral.

But what of the threat? President Putin hardly helps his own case by presenting a small number of concrete allegations of atrocities by opposition protesters. But is there something to the idea that the seemingly broad coalition of Euro-Maidan protesters is merely a front for a resurgent fascist movement implacably hostile to the Russian speakers in the East? And, for that matter, are the “Russian speakers in the East” as homogenous, vulnerable and uniformly disenfranchised as Mr. Putin implies?

The answer seems to be probably not. Granted, the interim government’s early attempt to revoke a language law granting Russian official status was both clumsy and needlessly alienating. And allegations persist of draconian punishments threatened against Ukrainian Russian dual citizens. But the idea that Europhilia has been a stalking horse for neo-fascism appears to be both oversimplified and overblown.

For a fairly dry, point-by-point rejoinder to these accusations, along with a plea to all of us hack bloggers “not comment on this region’s complicated national questions without engaging in some in-depth research” see this Open Democracy comment. And for a bit more color, see this NYRBlog piece by Timothy Snyder on the extent to which Euro-maidan presented a popular revolution in which right wingers struggled alongside Russian speakers, Jews, Poles, LGBT people and all other imaginable sectors of Ukrainian society, often in direct rebellion against their hidebound leadership:

The Ukrainian far right did play an important part in the revolution. What it did, in going to the barricades, was to liberate itself from the regime of which it had been one of the bulwarks. One of the moral atrocities of the Yanukovych regime was to crush opposition from the center-right, and support opposition from the far right. By imprisoning his major opponents from the legal political parties, most famously Yulia Tymoshenko, Yanukovych was able to make of democracy a game in which he and the far right were the only players.

The far right, a party called Svoboda, grew larger in these conditions, but never remotely large enough to pose a real challenge to the Yanukovych regime in democratic elections. In this arrangement Yanukovych could then tell gullible westerners that he was the alternative to the far right. In fact, Svoboda was a house opposition that, during the revolution, rebelled against its own leadership. Against the wishes of their leaders, the radical youth of Svoboda fought in considerable numbers, alongside of course people of completely different views. ….

In the post-revolutionary situation these young men will likely seek new leadership. The leader of Svoboda, according to opinion polls, has little popular support; if he chooses to run for president, which is unlikely, he will lose.

Meanwhile the tensions that continue to simmer in the East of the country reflect similar complications. Reporting on recent unrest in Donetsk, for instance, the Guardian noted the diversity of views among Russian speakers, the local nature of their grievances (being ignored by Kiev, disbandment of the Berkut riot police unit recruited mainly from the East) and the lack of popular support for secession. Earlier the same paper reported on the ironic tendency of militias in Crimea to hold views little less right wing than their purported persecutors in Kiev:

On the ground in Crimea, what is particularly odd is that the most vociferous defenders of Russian bases against supposed fascists appear to hold far-right views themselves.

Outside the Belbek airbase, an aggressive self-defence group said they were there to defend the base against “Kiev fascists”, but also railed against Europe, “full of repulsive gays and Muslims”.

“What you foreigners don’t get is that those people in Maidan, they are fascists,” said Alexander, a Simferopol resident drinking at a bar in the city on Monday night. “I mean, I am all for the superiority of the white race, and all that stuff, but I don’t like fascists.”

All of which brings us to a somewhat more existential self-determination issue lurking behind the current misunderstanding between fraternal Slavic nations. What about the non-Slavs? Well, it is instructive to begin with Russia Today’s gloss on the demographic history of the Crimean peninsula:

The Russian Empire annexed the territory of Crimea in the last quarter of the 18th century, after a number of bloody wars with the Ottoman Empire.

As part of the 1774 Kuchuk-Kainarji peace treaty the Crimean Khanate, previously subordinate to Ottomans and notorious for its brutal and perpetual slave raids into East Slavic lands, aligned itself with Russia. Soon Empress Catherine the Great abolished the Crimean Khanate, giving them a historic Greek name of Taurida.

Soviet citizens got to know Crimea as an “all-Union health resort,” with many of those born in the Soviet Union sharing nostalgic memories of children’s holiday camps and seaside.

The majority of those living in Crimea today are ethnic Russians – almost 1,200,000 or around 58.3 percent of the population, according to the last national census conducted back in 2001. Some 24 percent are Ukrainians (around 500,000) and 12 percent are Crimean Tatars. 

So … how was the Tatar population of the former Khanate reduced from 100% to 12%? Perhaps the natural growth of the Slavic population is the answer, spurred on by vigorous holiday camp vacations? Hardly. While the New Republic goes into more detail, I am partial to the concision of Wikipedia’s accounting for Crimean demographic trends:

Soviet policies on the peninsula led to widespread starvation in 1921. Food was confiscated for shipment to central Russia, while more than 100,000 Tatars starved to death, and tens of thousands fled to Turkey or Romania. Thousands more were deported or slaughtered during the collectivization in 1928–29. The government campaign led to another famine in 1931–33. No other Soviet nationality suffered the decline imposed on the Crimean Tatars; between 1917 and 1933 half the Crimean Tatar population had been killed or deported.

During World War II, the entire Crimean Tatar population in Crimea fell victim to Soviet policies. Although a great number of Crimean Tatar men served in the Red Army and took part in the partisan movement in Crimea during the war, the existence of the Tatar Legion in the Nazi army and the collaboration of Crimean Tatar religious and political leaders with Hitler during the German occupation of Crimea provided the Soviets with a pretext for accusing the whole Crimean Tatar population of being Nazi collaborators. ….

All Crimean Tatars were deported en masse, in a form of collective punishment, on 18 May 1944 as “special settlers” to Uzbek Soviet Socialist Republic and other distant parts of the Soviet Union. …. 46.3% of the resettled population died of diseases and malnutrition.

The 12% of the Crimean population consisting of Tatars represents a significant recovery from virtually 0% in 1945, in other words, based on a fitful return movement after Ukraine’s independence. Unsurprisingly, the Tatars have consistently supported Ukrainian sovereignty over Crimea. Hard to blame them. Maybe they talked to the Circassians who originally populated Mr. Putin’s own stomping grounds in Sochi.

13 responses to “Responsibility to provoke? Aggression, self-determination and the Ukraine crisis

  1. Obviously, Putin thinks he can behave like a leader of the United States, attempting to pull off a sort-of “Bush Doctrine” of his own. The time for us to stop pissing on international law is NOW. Let us uphold international law for a short time, until Putin backs down. Then we may resume pissing on international law, as usual.

  2. Don’t get me wrong. I actually think one of the most eloquent comments on all this – in the form of one single word – came from John Stewart a few days ago, in response to a clip of John Kerry intoning “you just don’t invade another country on phony pretexts in order to serve your own interests.” Stewart, rearing back, through gritted teeth: “Anymore! You don’t do it *anymore*!” (So 2003).

    See here around 5:45: http://www.thedailyshow.com/full-episodes/mon-march-3-2014-seth-macfarlane

    More seriously, here is Peter Spiro on the argument that international law is meaningless because we all choose to employ it as a urinal now and then:

    “Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. … So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.”

    http://opiniojuris.org/2014/03/02/ukraine-international-law-perfect-compliance-fallacy/

    But I guess a question you raise is what penalties the US ever faced for all its public decency infractions. And I think you have a point there (if thats what you were getting at). The US runs most of the clubs that lesser nations might be disbarred from for bad behavior. And snarky internet comments from the likes of us is hardly a penalty.

    On the other hand, the erosion of US credibility when it talks about R2P in a post-Cheney world is not a happy development. It might not snap back on the US directly, but it certainly does on the UN, which is now floundering in the ruins of a breakthrough legal concept it thought it had finally nailed down in 2005. And all the more so for people in places like Syria, now literally starving because Russia has been willing to point to Iraq and block even the most innocuous demands to allow humanitarian access to civilian populations on the grounds that they could somehow be abused.

  3. In your survey of international law issues raised by the Russia intervention, you missed one – indeed, few have picked up on it so far – which may come to assume some significance, assuming that Russia is settled-in in Crimea indefinitely (a fair assumption) and may even have factored into their decision to occupy the peninsula. That is, the Law of the Sea …

  4. Interesting. Care to elaborate?

    • Maybe …

      • A Lavrovesquely ambiguous response…

      • Well, now Russia completely controls the Strait of Kerch and, thereby, the littoral of eastern Ukraine. (And Russia will not give up Crimea while Putin remains in power.) While the ports on the Sea of Azov are not as important as those in the west (e.g. Odessa) or in Crimea, it means that Russia can now more effectively put the squeeze on the East, up to the Dnieper, without having to directly intervene there – and Ukraine has lost 2/3+ of its coastline. And all sorts of interesting questions of rights of access there …

  5. Well, that is a point. But for that matter, it would not necessarily be that different to block the western littoral either from Crimea, would it? The point is that control of the straits is one thing, actual affirmative exercise of that control to block shipping bound for the mainland is another. Hard to see how being seen to be behind that kind of activity would comport with, e.g. WTO undertakings.

    • Blocking the western littoral would be much more proactive than controlling a narrow strait – and potentially running afoul of neighbouring (including NATO member) countries. For some reason, I don’t think Russia is too bothered about international undertakings … and remember that this crisis began as a trade (chocolate) war. (Every bar of Roshen I ate last November was a blow against tyranny!)

  6. Good points. I wonder how the shipping lanes are looking right now in the area… But I do wonder a bit about the costs and benefit calculations here. Blocking chocolate imports from a neighboring country is one thing, blockading it is quite another. Time will tell.

    Meanwhile, the Crimean Parliament has already taken up Mr. Putin on his offer to not encourage (but neither to explicitly rule out) a merger:

    http://www.bbc.com/news/world-europe-26465962

    http://www.theguardian.com/world/2014/mar/06/ukraine-crisis-european-leaders-emergency-summit

  7. Pingback: Guest-posting at Opinio Juris – Åland and Crimea as distant cousins | TerraNullius

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