Political Legitimacy and International Law in Crimea: Pushing the U.S. and Russia Apart

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Written by Chrisella Herzog, Managing Editor

February and March were dark days for Ukraine. Photos from Kiev showed a city center blackened by infernos, and reports from protestors described a grim but determined mood. Increasingly violent clashes between protestors and riot police—whom the new head of Ukraine’s SBU intelligence service Valentyn Nalivaichenko and Ukraine’s interim Attorney General Oleh Makhnitsky told reporters in early April were advised and armed by Russian FSB intelligence officers—resulted in the deaths of at least 88 anti-government protesters in Kiev’s Independence Square in 48 hours starting on February 20th. Many were killed by long-distance sniper rounds.

Their deaths brought the total death toll of the months-long protest to 103, but Ukraine’s Ministry of Health says at least 166 more protestors are still missing, a chilling status following reports of injured protestors being “disappeared” by shadowy authority figures from hospital rooms and street corners.

When it became apparent that the violence on the streets would not end without a political solution, President Viktor Yanukovych and opposition leaders came to a transition agreement on February 21st that would allow Yanukovych to remain in office until December while a new election was prepared. This agreement was short lived, however, as Ukrainians awoke the next morning to find protestors in control of presidential administration buildings in Kiev, and Yanukovych gone, purportedly fled to his traditional power bases in southeastern Ukraine and then into Russia, leaving behind an opulent estate and unsuccessful hasty attempts at destroying documents. An interim government was quickly announced, leading Yanukovych to come out of hiding, and in a press conference, declare that he would not be relinquishing his claim to the presidency—calling the actions to appoint a new government a coup—and that he had fled Kiev when he received threats to his life.

Yanukovych’s statements provided Russia with a rationale for action. “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,” Russian President Vladimir Putin said in an unscripted conversation with press on March 3rd. “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.”

Within a matter of hours, pro-Russian forces and Russian military were able to take control of the Crimean Peninsula, taking over administration buildings and landing Russian military planes in Simferopol, moving tanks and troops off military bases and throughout the region. Western leaders became as concerned over the display of Soviet era flags by Crimeans as Russian leaders were over reports of resurging neo-Nazism in Kiev. Official results from a referendum on whether or not Crimea should secede from Ukraine and join Russia said 97 percent of voters backed the proposal to join Russia, but those results were questioned and condemned by the United Nations and Western leaders after international monitors attempting to enter the area were shot at. On March 18th, Putin signed a bill absorbing the peninsula into the Russian Federation; Russian media outlets call the action “reunification”, while EU and U.S. leaders condemned the action as “annexation.”

Did Russia violate international law in its annexation of Crimea? This is a key question currently dividing Russia and the West, led by the European Union and the United States.

The EU and the U.S., along with the rest of the G7 nations, claim that “Russia’s actions were in violation of Ukraine’s sovereignty and territorial integrity,” as President Obama told President Putin in a phone conversation. This position was clearly expressed when these nations imposed sanctions on Putin’s inner circle of advisors (including some of Russia’s wealthiest men) and suspended Russia’s participation in the G8. Following that, NATO suspended its military cooperation with Russia.

Russia, on the other hand, has argued repeatedly that the military actions taken were well within the bounds of international law, citing the principle of self-determination under Article 1 of the UN Charter and the precedent of NATO’s intervention in Kosovo in 1998.

Article 1 vs. Article 2

At the heart of this question over Russia’s actions is a conflict between two of some of the most important tenets of international law in the modern era: the right of self-determination, and the protection of territorial integrity.

Russia’s primary argument for their actions in Crimea has been that Crimeans have the right of self-determination, and therefore when Crimean citizens asked for protection (as President Yanukovych did, but we will come back to that) and voted to leave Ukraine, sending troops into the peninsula and “annexation” of the territory became legitimate actions. This is based off Article 1, Paragraph 2 of the United Nations Charter:

Article 1(2): To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

The presence of those military forces during the referendum, without the presence of international observers, has left Western leaders doubting that this was a pure exercise of self-determination; however, even if it was, the U.S. has agreed with the interim Ukraine government that that the secession of Crimea from Ukraine is unconstitutional under the terms of the Ukrainian constitution. The federal government of Ukraine, with authority over the Crimean Peninsula, saw its territorial integrity and sovereignty compromised when Russia used military action to shut off access to Crimea by closing roads, ports, and airports, and protected and encouraged—perhaps even initiated—a separatist movement within Ukraine’s national borders. This argument by the interim Ukrainian government, the EU, and the U.S. is based on Article 2, Paragraph 4 of the United Nations Charter:

Article 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The (perhaps oversimplified) explanation of this is that while the two Articles are not always mutually exclusive, in this situation they have set up a case of the federal Ukrainian government against the local Crimean authorities, with the U.S./EU and Russia taking up opposing sides in the fight not only to protect their own interests in the region, but also as an extension of their broader foreign policy strategies.

The complexities of this legal conflict is lost on neither President Obama, a graduate of Harvard Law School, nor President Putin, a graduate of the International Law branch of the Law Department of the Leningrad State University. What they differ on is the interpretation of what happened in Ukraine on February 21st and 22nd.

The Question of Legitimacy

Political legitimacy is in the eye of the beholder, and in fact, there is an argument for saying that Ukraine’s interim government is not legitimate at all.

In early March, Stefan Soesanto, a Non-Resident Kelly Fellow at the Center for Strategic and International Studies, wrote in to Lawfare discussing this very possibility:

“In its case Somalia vs. Woodhouse Drake & Carey, the High Court of the United Kingdom ruled that a new government derives its legitimacy through three factors: (1) whether it is the constitutional government of the state, (2) the degree, nature, and stability of administrative control over state territory, (3) and the nature of its dealings with other governments.

“Ascertaining the legitimacy of the interim government in Kiev is quite tricky. According to Article 111 of the Ukrainian constitution, the President can only be impeached from office by parliament through ‘no less than three-quarters of its constitutional composition.’ On February 22, 2014 the Ukrainian parliament voted 328-0 to impeach President Yanukovych who fled to Russia the night prior. However for an effective impeachment under constitutional rules the 449-seated parliament would have needed 337 votes to remove Yanukovych from office. Thus under the current constitution, Yanukovych is still the incumbent and legitimate President of the Ukraine.”

If it is the case that the interim government put in place after Yanukovych fled is not a legitimate ruling authority in Ukraine, this gives Russia a much stronger legal position. According to Mr. Soesanto, what Russia has argued is that:

  • 1) The interim Ukrainian government is not legitimate because it violently usurped power in a coup, forcing President Yanukovych to flee the country after threatening his life;
  • 2) The interim government is pushing a nationalistic agenda, which threatens the human rights of the ethnic Russian minority in the country;
  • 3) Russia faced a humanitarian crisis on its border due to lawlessness and “uncontrolled crime” perpetrated through revolutionary and nationalistic fervor against ethnic Russians;
  • 4) The Russian Federation, under Article 61(2) of its constitution, “guarantees its citizens defense and patronage beyond its boundaries”;
  • 5) Both the legitimate President of Ukraine, Viktor Yanukovych, and the Prime Minister of the Autonomous Republic of Crimea requested Russian military forces intervene to provide security for the Crimean region and to stabilize the political violence in the country.

Under the condition that Ukraine’s interim government is not a legitimate authority, Russia’s actions in Crimea would appear on the surface to be supported by international law, rather than in violation of them: military forces entered legally after being invited by the leader of the country and of the region the troops remained in, and with an illegitimate federal government in place, Crimea’s secession referendum was a clear expression of self-determination.

Obviously, Western leaders do not agree to the premise that Ukraine’s interim government is illegitimate. President Obama met with interim Prime Minister Arseniy Yatsenyuk in the days before the Crimea referendum, and has recognized interim President Oleksandr Turchynov as Yanukovych’s successor. In questioning the legitimacy of the results of the Crimea referendum, they point to reports that ethnic Ukrainian and Muslim Tatar minorities in the peninsula boycotted the election, that international monitors were not allowed to keep tabs on the referendum process, and to reports that only 34 percent of Crimea’s population took part in voting as opposed to the official reports of 82 percent participation; they also point to anonymous statements to media that voters were afraid and felt pressured by the Russian troops surrounding them.

Ukrainian politicians, for their part, point to Yanukovych’s role in the violence of the Maidan protests, stating that the riot police being advised by Russian FSB intelligence officers were under his direct control, and that he ordered snipers to shoot down protestors in the streets. They maintain that the violence he ordered against his people was a crime, and have been seeking his extradition from Russia to be tried. Prime Minister Yatsenyuk has also threatened to charge Crimean politicians that called for Russia’s intervention and voted for secession in both Ukrainian and international courts. In their argument, the political leaders that may have provided legal cover for Russia’s actions were no longer legitimate representatives of the Ukrainian people, and in the same way revolutions throughout history have removed political actors and created new systems, their own actions provided the interim government with political legitimacy.

Furthermore, Russia’s recognition of Yanukovych as the legitimate leader of Ukraine seems to only mean so much—the ousted President has stated that the loss of Crimea is “a tragedy, a major tragedy.”

“We must set such a task and search for ways to return to Crimea on any conditions, so that Crimea may have the maximum degree of independence possible… but be part of Ukraine,” Yanukovych said in an interview from Russia with the Associated Press and Russian channel NTV.

The Kosovo Parallel

Just as with Kosovo in 2010, the question of whether Crimea’s declaration of independence from Ukraine was a violation of international law will likely be heard before the International Court of Justice within the next few years. But otherwise, does Kosovo set a precedent for Russia’s actions in Crimea?

In 1998, NATO forces, led by the U.S., intervened in the former Yugoslavia to save Kosovo from ethnic cleansing by Serbian troops and paramilitaries. NATO did not have UN authorization for the intervention, nor for a while did it have any kind of justification under international law for its actions. Only later was a justification named, stating that the action was “illegal but legitimate” because of its urgent humanitarian purpose. This led to the creation of an exception to the use-of-force restrictions under the UN Charter that permits humanitarian military interventions without UN authorization in cases of urgent and mass human rights violations. Russia was deeply resentful of NATO’s and the U.S.’s actions, and brought a case before the UN Security Council that “such unilateral use of force constitutes a flagrant violation of the United Nations Charter”. The resolution failed to pass, with only China, Namibia, and Russia supporting it.

But now, Russia is invoking Kosovo—both the NATO intervention and Kosovo’s 2008 declaration of independence—as a precedent for its actions. In early March, Russian Foreign Minister Sergey Lavrov proclaimed: “If Kosovo is a special case then Crimea is a special case; it’s just equally special.” It will be difficult for the west to dispute Russia’s argument that if NATO’s intervention in Kosovo was “illegal but legitimate”, then that cannot be a standard that applies only to NATO actions.

Putin specifically called out the West on this issue on March 18th when he spoke before Russia’s parliament on the official action to absorb Crimea:

“I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: ‘Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.’

“They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians, and Crimean Tatars in Crimea are not allowed. […]

“We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties. Is this a legal argument? The ruling of the International Court says nothing about this. […] According to this logic, we have to make sure every conflict leads to human losses. […]

“[W]ith Ukraine, our western partners have crossed the line… After all, they were fully aware that there are millions of Russians living in Ukraine and in Crimea. […] Russia found itself in a position it could not retreat from.”

The argument of protecting Russian nationals is highly questionable, especially with Russia’s practice of providing passports to nearly any Eastern European of Russian heritage; furthermore, the United Nations found no evidence that Russian nationals, or even pro-Russian Ukrainians, were targeted by any official use of force in Crimea. Furthermore, Russia has conducted military drills with an estimated 40,000 troops just off Ukraine’s eastern border, and the U.S. Department of State has accused Russian intelligence forces of sending agents into eastern Ukraine to provoke violent separatist uprisings that threaten civil war. Russia quite literally is toeing the line of international law, waiting to see if the West will notice when they inch across.

Russia and the West are at far different diplomatic starting points, and it will not be a simple or quick task to reconcile. Ukraine’s interim government must focus on rebuilding an economic and political system while keeping an eye on its eastern border. On the global scale, while G7 nations stated that Russia’s suspension from the meetings was meant to be temporary, it should not be expected to be resolved in 2014.

It is, for now, too much to say the Cold War has begun again, but it is clear the thaw in U.S.-Russia relations sought by President Obama has stalled. Crimea was hardly the only step back from burying the Cold War for good; however, the diplomatic process ahead is now a much more difficult one.

Chrisella Sagers Herzog is the managing editor of Diplomatic Courier and Editor-in-Chief of WhiteHat Magazine. She can be found on Twitter at @Chrisella.

This article was originally published in the Diplomatic Courier‘s May/June 2014 print edition.