On 4 March 2014, The American President Barack Obama discussed the crisis in Crimea. He stated “there is a strong belief that Russia’s action is violating international law”. Obama also added that the Russian leader, Vladimir Putin, seemed to have “a different set of lawyers making a different set of interpretations” and is convinced that “it is not going to fool anybody.”
If we are to analyse the words Obama chose to use, one strong assumption can be drawn: International law is nothing beyond a ‘set of beliefs’ that are classified as acceptable or unacceptable, depending on which side of spectrum one chooses to stand.
Last month the majority of Crimean voters decided to secede from Ukraine and unite with Russia. Currently, Russian forces have seized control of Crimea and there is no evidence to suggest that Russia is withdrawing troops from its border with Ukraine. Last Tuesday, the Chief of NATO, Anders Fogh Rasmussen, claimed that Russian aggression against Ukraine “is the gravest threat to European security in a generation and it challenges our vision of a Europe whole, free, and at peace”.
Is Russia flagrantly violating international law on regulating the Use of Force, or does it have some credible justification for what it has done?
To answer this question, we need to look into the wide set of international rules and customs on which the law on the Use of Force is based. The possibility of violations to the Charter of the United Nations must be addressed. Under the Charter, use of force is only allowed if it is in the case of self-defense. In light of the current situation, we first must establish whether the Russian Federation has acted in self-defense.
Before going further deeply into the heart of this, we must warn you that despite the abundance of the available laws specifically addressing such or similar issues, no straightforward hypothesis can be provided. At the end of this article, only you could decide which spectrum you want to stand on and the possible answer to the question.
Article 2(4) of the U.N. Charter prohibits states from engaging in any threats or uses of force against other states. Although this clause has engendered untold hours of debate about its meaning, the transfer of one state’s armed forces into another state in significant numbers without consent almost certainly falls within Article 2(4)’s prohibition. Although the number of Russian forces in Crimea is hard to determine, Russia seems to have sent at a minimum hundreds of troops, ten troop trucks, and five armored vehicles—and there are unconfirmed reports that Russian ships bearing additional troops are arriving in eastern Crimea.
On the other hand, Russia is annexing Crimea, a province in which they have a military base. Thus, the argument explaining that the military base in Sevastopol was legally leased can be inserted. However, the soldiers stationed at the same base do not have the right, under neither domestic nor international law, to besiege and capture other Ukrainian bases on the territory of Crimea. Sevastopol, scene of much past Russian military glory, remains the headquarters of the Russian Navy’s Black Sea Fleet. Since the collapse of the Soviet Union more than two decades ago, it has survived through leasing arrangements as an enclave of Russian power inside Ukraine, an entity similar to Guantanamo Bay in Cuba for the US military. There was a time when the Black Sea Fleet was the spearhead of Russian power and the symbol of its determination to break out of the Black Sea into the Mediterranean and beyond.
One may argue that such measure constitute breach to international law.
On the other hand, one could say that this case is different compared to other types of ‘invasions’ that we have seen/experienced so far. The typical characteristics of armed attacks, invasions and use of military force are not noticeable. Furthermore, it cannot be forgotten that even the threat of use of force is illegal and condemned by the international legal community.
Speaking from a purely legal perspective, although Russia could use the argument that it is exercising preemptive self-defense with the purpose of protection of “its” people, it must be taken into serious consideration that there is a very thin, fine line between defensive and offensive actions when exercising self-defense. For legal scholars, Russia is seriously testing the limit on the application to international law.
In order to reason its actions, Russia has used plenty of justifications; some of political nature, some based on greater ideals and some based on international law. Russia’s most prominent legal justification for sending troops into Crimea is that of needing to protect Russian citizens. International law provides for the concept of ‘defense of nationals’, which is indeed the base of Russia’s rationale. We must warn you again, though. The concept of protection of nationals is very delicate and widely contested.
To put it simply, under this concept, State A may enter another State B without State B’s consent in order to protect State A’s nationals against an imminent threat. The actions taken are usually a ‘one time action’. They are often carried out in times when State B has either failed or refused to ensure the safety and the protection either of the lives of the people or of the property of State A. States have invoked this justification in three situations:
- Where their nationals have been taken hostage (the case of U.S Embassy in Tehran),
- Where their nationals face a more generic threatening situation (the case of the U.S in Grenada and UK in Libya in 2011), and
- Where their nationals are under actual attack.
Nonetheless, great rhetorical and sentimental value lies within the use of argument of protection of nationals.
Firstly, the more tangible the threat to the nationals and the lower the concern about pre-textual intervention, the more likely it is that the intervening states are able to avoid condemnation.
Secondly, invoking of the principle often ‘hurts’ and infringes another important concept; the right of territorial integrity. This is best illustrated by the case we have at hand. While people of Crimea have raised their voices via a referendum and have exercised their right of self-determination, Ukraine has tried to vouch for its territorial integrity. In the middle of this, Russia has jumped in, by using the argument of ‘protection of nationals’, for this concept is not completely unfamiliar to the Russians and similarly used in the Russia-Georgia Conflict and the South Ossetia War.
Now, the food for thought would be: could we really say that Russia is protecting the people in Crimea by the means of its intervention? The answer is rather two-fold and most importantly, in need of great analysis of Russia-Crimea historical and political background. Legally speaking, the answer to this question is neither completely true, nor completely false.
To rehash Obama’s statement, could we then just assume that international law is indeed nothing but a ‘set of beliefs’ that are classified as acceptable or unacceptable, depending on which spectrum one chooses to stand?
For those who consider the glass half empty, the assumption is rather affirmative and more realistic. The danger in this is that international law can be seen as a façade in the purpose of hiding political motives. Thus, the statement given by Obama exemplifies Western powers’ emotional outburst and their propaganda.
For those who consider the glass half full, the assumption will be denied. The outcome to the situation in Crimea must be addressed by striking the perfect balance between peace, justice, law and the political interests at stake. In reality, somehow, we can derive to the previous conclusion. In the end, despite of the existence of international law, international political games always rule.
Co-Author: Jovana Perovska (Guest Contributor)