Crisis in Crimea: Can Putin Claim Consent?

Posted in: International Law

When Vladimir Putin sent troops into the Crimean peninsula, he sent a strong signal to both Ukraine and the rest of the world: Russia will use military force, if necessary, to secure Crimea’s independence from Ukraine and its eventual reintegration into Russia, its presumptive ancestral homeland. Russia is now also trying to argue to the United Nations, as well as the court of world opinion, that its actions are justified by international law. Evaluating this claim is tricky, but here are the key elements of the argument.

First, Russia initially deployed military assets to key locations in Crimea, including government buildings and Parliament, without using insignia or other identifying markers. This was a troubling attempt to exercise brute force without taking responsibility for it. Did this violate the law of war? Generally speaking, the law of war requires that soldiers identify themselves as soldiers by carrying their guns openly and wearing uniforms that identify them as combatants. The Russian troops certainly did so.

The problem is that at least some of the Russian troops refused to indicate which government they represented, and their deployment without any identification or insignia seemed designed to deliberately obfuscate the situation for as long as possible. This was troubling, not just for political reasons, but for legal reasons as well. Soldiers are supposed to wear a “fixed emblem recognizable as a distance,” not just to identify themselves as combatants, but also to identify themselves as combatants belonging to a particular fighting force. There are two central reasons for this requirement. Participants in an armed conflict need to separate not just civilians from combatants but also friendly allies from enemy forces; generic military markings make this difficult if not impossible. Also, the requirements for lawful belligerency involve belonging to a fighting force that obeys the laws and customs of war. Without wearing insignia that identifies the particular fighting force, that assessment becomes impossible. So it might be the case that Russian troops without the appropriate insignia are not legitimate belligerents under the law of war.

Why have other states not complained more loudly about this aspect of the Russian intervention? I suppose one reason is that the attempted subterfuge was a canard and ineffective: everyone assumed that the troops were Russian anyway. Another reason is that plenty of foreign nations engage in covert military action, where they refuse categorically to acknowledge that the troops were acting as agents of the state. Since other states already engage in covert action, they will no doubt be careful before they criticize Russia for engaging in its own half-hearted covert behavior.

The second issue is whether Putin can argue that Russian troops are operating in Ukrainian territory with the consent of its government. Under international law, the use of force against the territorial integrity of another state is only justified in two situations: self-defense or a binding authorization from the UN Security Council. (Self-defense includes acting individually or so-called collective self-defense: coming to the aid of an ally as part of a regional security pact like NATO). Originally, Putin offered an unconvincing argument sounding in self-defense: Russian forces were in Crimea to protect ethnic Russians living in the region. However, there was no reason to suspect that the ethnic Russian population in Crimea was in any danger, nor is it clear that ethnic Russians living abroad constitute a “part of Russia” that could be defended through self-defense. In the absence of a Security Council resolution, it would appear that the exercise of military force in Crimea violated international law.

Realizing the problems with this scheme, the Russians have lately shifted tactics and introduced a clever new argument: that they were invited into the Ukraine. If Russia has permission from the government of Ukraine, then the outside military force does not violate Ukraine’s territorial integrity at all. So there would be no need to ask whether there was self-defense or a Security Council authorization. The use of force would be consensual.

In order to make this argument, of course, Putin must rely on the wishes of deposed Ukrainian President Viktor Yanukovych, who was ousted from power after street protests unraveled his presidency and his hold on power. After he fled the country, he reportedly drafted a letter to the Russians requesting their assistance. However, this argument is dependent on the assessment that Yanukovych remains the lawful leader of Ukraine, even as he resides in exile in Russia. If he is still the president, then he is in the position to invite Russia into Ukraine; if he is no longer president, then his request is irrelevant.

Is Yanukovych still the leader of Ukraine? In support of their argument, the Russians note that Yanukovych was an elected leader ousted by illegal and unconstitutional force. Some have described the revolt as a popular uprising, while Russia describes it as a fascist coup d’état. However, these are mostly political descriptions of the event. The important point is that Yanukovych was deposed through extra-legal events.

The big problem for the Russian argument is that Yanukovych and his allies do not control any territory in Ukraine; they are in exile. Generally speaking, international law favors realistic ascriptions of authority based on the individuals and groups that are in a position to fulfill their legal obligations. Since Yanukovych is in exile and no longer controls anything in Ukraine, he is not in a position to ensure that Ukraine secures its international obligations. For this reason, international law generally prefers to deal with entities that have actual control over state institutions. Although Russia is not required under international law to recognize the new government in Ukraine, it seems unconvincing to argue that Yanukovych is still the governmental leader of Ukraine and therefore in a position to consent to the use of external force. This stands in stark contrast to civil wars in Libya and Syria, where rebels controlled large sections of territory and could make a plausible claim that they should be recognized as a new government with the authority to consent to outside military force (from NATO for example).

Russia’s third argument stems from the collective right of self-determination. Assuming that a large percentage of the Crimean population desires Russian rule, one could argue that the Crimeans should be permitted to select their own fate. If they desire secession from Ukraine, they should be permitted to leave and then join the Russian Federation. If Ukraine uses force to prevent their departure, then maybe the right of self-determination justifies the use of Crimean force to secure their right of self-determination.

International law generally distinguishes between two types of self-determination: internal (as part of a larger country) and external (through secession and independence). In its highly influential advisory opinion on Quebec Secession, the Canadian Supreme Court said that a people only has a right of secession if the internal arrangement is so onerous that it prevents them from realizing their right of self-determination. The Supreme Court noted that the structure of the Canadian Constitution granted wide latitude to the individual provinces and that Quebec had equal (and in some cases enhanced) access to federal political institutions. In other words, Quebec was suffering from no discrimination that could give rise to a right of unilateral secession.

Even in situations where there is outright discrimination, the right of external self-determination, via unilateral secession, is deeply controversial in international law. There is no treaty provision that codifies a general right to secede in these circumstances, and the UN Charter protection of territorial sovereignty cuts against the right to secede. Some scholars conclude that external self-determination does not apply outside of the colonial context, i.e. the concept only legitimates the practice of geographically distant colonies casting off the chains of their imperial masters. So the concept of remedial secession remains deeply contested.

Applying this standard to Crimea, it would appear that the Russian argument is problematic. Crimea is a virtually autonomous region within the Ukrainian federal structure, and has wide latitude to conduct its own affairs. The Crimean government would need to demonstrate widespread obstacles to their cultural advancement if they remained within Ukraine—an argument that is blocked by their current status as an autonomous region.

The Crimean government has scheduled a rush-referendum on secession for March 15—a date that they keep advancing in the hopes that a positive “yes” majority will solidify their claim of independence and diffuse the military crisis. President Obama has called this move illegal. While it may violate Ukrainian law, there is nothing in international law that prevents a state from holding a referendum on secession. Indeed, the International Court of Justice ruled in the Kosovo Case that nothing in international law prevented Kosovo from declaring its independence, though such a declaration would not obligate other states to recognize Kosovar independence. The key point here is that there is a difference between declaring independence and being independent; the latter is based in part on a state’s ability to get the world community to accept its claim of independence and start treating it as an independent state.

So the Obama Administration should avoid saying that the referendum violates international law—that’s an unwarranted exaggeration. The most that can be said is that the Crimean claim to unilateral secession without Ukraine’s consent fails because Crimea already has enough regional independence within the Ukrainian federal system to secure its right to self-determination.

Posted in: International Law