• Cindy Wittke is the head of the junior research group Frozen and Unfrozen Conflicts at the Leibnitz Institute for East and Southeast European Studies (IOS) in Regensburg. Since March 2019, she has led the project group “Politiken des Völkerrechts im postsowjetischen Raum” (Politics of International Law in the post-Soviet Space), funded by the German Ministry of Education and Research (BMBF).

  • Kateryna Busol is a Ukrainian lawyer specialising in international human rights, humanitarian and criminal law. Since 2015, Kateryna has worked for Global Rights Compliance (GRC). Within GRC, she advises Ukrainian state actors and NGOs on best practices in the investigation and prosecution of international crimes and on cooperation with the International Criminal Court (ICC). Kateryna was a fellow at the Kennan Institute and a Visiting Professional at the ICC.

  • Maria Issaeva is a lawyer from Moscow, Russia. Her prior professional experience includes a position as an A-grade lawyer at the European Court of Human Rights and an associate position at White & Case LLC (Moscow). She has served as a board member of the European Society of International Law since 2016.

This week, the internet plat­form dekoder published a detailed dossier on the annexa­tion of the Crimea 5 years ago, inclu­ding an inter­view with inter­na­tional law experts­Ka­te­ryna Busol, Maria Issaeva und Cindy Wittke: Kate­ryna Busol, Maria Issaeva und Cindy Wittke. They come from three diffe­rent coun­tries – Ukraine, Russia, and Germany – but also from diffe­rent educa­tional and profes­sional back­grounds. None of the three claims to repre­sent their coun­tries’ scho­l­ar­ship and/or prac­tice, instead, each offers her indi­vi­dual perspec­tive, taking into account the diver­sity and most important nuances in current inter­na­tional legal debates about Crimea and the so-called ‘Ukraine Crisis’.

We consider the inter­view highly enligh­tening and decided to publish it here as well.

In the on-going public debates about the lega­lity or ille­ga­lity of the refe­rendum on Crimea and the peninsula’s unlawful annexa­tion or lawful incor­po­ra­tion into Russian territory, refe­rences are often made to the 1999 NATO inter­ven­tion in Kosovo and Kosovo’s unila­teral decla­ra­tion of inde­pen­dence in 2008. Beyond poli­tical rhetoric, what is the legal subs­tance of this compa­rison from your point of view as an inter­na­tional lawyer?

Kate­ryna Busol: Refer­ring to an excep­tion is always tricky, let alone when that excep­tion is highly deba­table. The initi­ally noble notion of huma­ni­ta­rian inter­ven­tion has, unfor­tu­n­a­tely, been compro­mised, espe­ci­ally since Yugo­s­lavia and Iraq. There­fore, Russia’s attempt to justify its inter­ven­tion in Crimea on the basis of such a legally dubious prece­dent is self-defeating.

The refe­rences to Kosovo’s decla­ra­tion of inde­pen­dence also seem flawed, for at least two reasons. First, before 2014, Russia had been excep­tio­nally vocal in oppo­sing Kosovo’s inde­pen­dence aspi­ra­tions. That posi­tion could be explained by Russia’s concern about the seces­sio­nist calls within its own territory, among other things. Second, even in the absence of the former argu­ment, Kosovo’s and Crimea’s “inde­pen­dences” are totally diffe­rent. The processes in Crimea were cata­lysed by a foreign state, with its mili­tary and para­mi­li­tary ensu­ring the hastily orga­nised “refe­rendum” in lieu of inter­na­tional obser­vers and in the absence of any consent by the sover­eign state. This was not the case with Kosovo. There­fore, Russia’s second Crimea-Kosovo compa­ra­tive argu­ment does not stand.

As Rabin­dra­nath Tagore has said, “When peace is active swee­ping its dirt, it is storm”. The stormy way in which Russia entered Crimea – an indis­pensable legi­ti­mate part of another sover­eign state – and enforced “peace” there can reason­ably be said to raise ques­tions as to whether peace was its aim initi­ally, if at all.

Maria Issaeva: In order for a compa­rison between the seces­sion of Crimea and the decla­ra­tion of inde­pen­dence of Kosovo to hold up, the latter would have had to have happened within the very short time span of two weeks, and have involved the unila­teral use of mili­tary force by one of the perma­nent members of the UN Secu­rity Council, which would had to have incor­po­rated this new entity into its territory in a matter of days. When it makes this compa­rison, Russia betrays how little atten­tion it pays to the impor­t­ance of multi­la­teral coope­ra­tion and proper proce­dure as necessary compon­ents of lega­lity and legi­ti­macy under inter­na­tional law.

In Jalta errich­tete die russi­sche Regie­rung 2015 ein Denkmal anläss­lich der Konfe­renz mit Chur­chill, Roose­velt und Stalin 1945. (Deutsch­land­radio / Inga Lizen­gevic), Quelle: deutschlandfunkkultur.de

One of the most striking features of the post-Crimean commen­tary from Russian scho­lars and prac­ti­tio­ners of inter­na­tional law was the dramatic change in their argu­ments (and in the offi­cial Russian posi­tion) as compared to those they put forth concer­ning the lega­lity of the seces­sion of Kosovo. If, before Crimea, Russia put a lot of emphasis on the obli­ga­tion to refrain from any action against terri­to­rial inte­grity of any state, quoting, inter alia, the 1975 CSCE Helsinki Final Act, after Crimea the self-determination argu­ments were invoked without so much as a mention of any sover­eign rights over the penin­sula on the part of Ukraine. In Russia, since 2014, one often hears that the Helsinki Final Act is “merely a poli­tical docu­ment”, and thus imposes no obli­ga­tions on states, and one even encoun­ters attempts at justi­fi­ca­tion through the claim that Ukraine is a failed state (and, thus, has no sover­eign rights whatsoever).

Cindy Wittke: Refe­rences to ‘Kosovo’ have already been exhausted in terms of scho­l­arly argu­ments regar­ding its compa­ra­bi­lity to and value as a source of analogy with the annexa­tion of Crimea in March 2014, in my opinion.

Based on my rese­arch inter­views with Ukrai­nian, Geor­gian and Russian experts on inter­na­tional law, I am coming to the conclu­sion that ‘Kosovo’ became a ‘projec­tion screen’ for diffe­rent narra­tives rela­ting to the legi­ti­macy and ille­gi­ti­macy of Russian and ‘Western’ excep­tio­na­lism. In short, ‘Kosovo‘ has become a sort of hall­mark of various forms of ‚lawfare‘ and a near ubiqui­tous reminder that one cannot consider law and poli­tics as being uncon­nected.

The refe­rence to ‘Kosovo’ is not, at bottom, merely poli­tical rhetoric, but neither is it (any longer) only encoun­tered in an exchange of dogmatic legal argu­ments: it has become sympto­matic of a clash over the role(s) of inter­na­tional law in inter­na­tional poli­tics. Diffe­rent commu­ni­ca­tors of inter­na­tional law fill ‘Kosovo’ with diffe­rent content and contro­ver­sies that go beyond what happened in and with Kosovo.

Is Crimea a unique case (sui generis) or are we witnes­sing processes of re-interpretation of the right to self-determination, reme­dial seces­sion and even­tually state sover­eignty in the post-Soviet space?

Maria Issaeva: Crimea is not about a re-interpretation of general inter­na­tional law, and neither is it a sui generis case. It is a point of no return on Russia’s way back to its old Soviet role model and inter­pre­ta­tion of inter­na­tional law.

Ein weiteres von der russi­schen Regie­rung errich­tetes Denkmal für die „höfli­chen Menschen“. Gemeint sind russi­sche Soldaten ohne Abzei­chen, die 2014 die Halb­insel besetzten. (Deutsch­land­radio / Inga Lizen­gevic), Quelle: deutschlandfunkkultur.de

Domi­na­tion in the post-Soviet space never stopped being a prio­rity for Russia, and pecu­liar inter­pre­ta­tions of inter­na­tional law within what it has, since 1991, regarded as its “zone of influ­ence” always came as a corol­lary to that. The sover­eignty of Russia, like the sover­eignty of the USSR before 1991, was always “more signi­fi­cant” in Russia’s eyes than the sover­eignty of the coun­tries that the USSR/Russia regarded as its satel­lites. Any new legal deve­lop­ments rela­ting to reme­dial seces­sion and self-determination are very unli­kely be taken further in connec­tion with the case of Crimea, as it is a rather strai­ght­for­ward case of the use of force, in which ‘self-determination’ was invoked without much of an inter­na­tional law basis.

Cindy Wittke: I think it is really inte­res­ting to take a closer look at what happens or could happen, when we stress the ‘uniqueness’, the ‘incom­pa­ra­bi­lity’ or ‘excep­tion’ of an event or process.

From a legal perspec­tive it can lead us, for instance, to the ques­tion of whether such an event or process might be ‘outside of the law’. In my opinion, making situa­tions of emer­gency and excep­tion a new ‘norma­lity’ makes the rein­ter­pre­ta­tion of inter­na­tional law and its princi­ples possible; i.e. it can change what some actors argue to be legal and legi­ti­mate in the conduct of poli­tics and warfare.

As a coun­ter­ar­gu­ment to such a view, I would like to point out that legal and/or poli­tical norma­lity is and has always been extre­mely rare. Rather, law’s func­tion is to regu­late and settle disputes according to a set of agreed rules – a ‘norma­lity’ is not required in order for it to do so, and there is no ‘outside the law’ – regar­ding ‘Kosovo’ or ‘Crimea’.

Kate­ryna Busol: On the one hand, one could point out that the situa­tions of Trans­nis­tria, Kosovo, Cata­lonia, the occu­pied Pales­ti­nian terri­to­ries and Nort­hern Cyprus demons­trate that the issues of occupa­tion or alleged self-determination and seces­sion raised in the context of Crimea are not excep­tional. At the same time, there are a number of factual and legal aspects that make the Crimean case stand out:

First, it marked an unex­pec­tedly major outbreak of a lasting armed conflict and occupa­tion in Europe in the 21stcentury. This, inevi­tably, has an effect on efforts aimed at recon­ci­lia­tion and accoun­ta­bi­lity. By way of compa­rison: the 2008 Russia-Georgian war lasted five days, and it took the Inter­na­tional Criminal Court almost eight years to open an inves­ti­ga­tion into it. Given the level of comple­xity of the Crimean case and Ukraine’s situa­tion in general, one would hardly expect processes in this and other avenues of inter­na­tional justice to be more dynamic.

Second, the Ukrai­nian conundrum is aggra­vated by the new, rapidly deve­lo­ping aspects of hybrid warfare in the post-truth era, such as cyber-attacks and the use of social media.

Third, Crimea is increa­singly demons­tra­ting the alleged sui generisviola­tions. This includes the distor­tive resto­ra­tion of the Bakhchy­s­arai Palace of the Crimean Tatars with a view to their cultural erasure and the erec­tion of the Kerch Bridge, connec­ting Russia with Crimea, which was accom­pa­nied by the large-scale appro­pria­tion of property and unaut­ho­rised under­water and archaeo­lo­gical exca­va­tions, all of which are prohi­bited by inter­na­tional law of armed conflict.

Looking at Crimea today, in March 2019, what legal ques­tions and issues are coming up that we need to discuss? Is inter­na­tional law ‘fit’ to deal with the past, present, and future of Crimea?

Cindy Wittke: As I have already pointed out, there is no such thing as ‘outside the law‘. When we discuss whether inter­na­tional law is ‘fit’ to deal with Crimea, I would argue for a turn towards prag­ma­tism in approa­ching ques­tions regar­ding the ever­yday regu­la­tive power of inter­na­tional law with regards to the de jure and de facto status of Crimea, both in the present and fore­see­able future.

Restau­rie­rungs­ar­beiten am Khan­pa­last in Bacht­s­chys­saraj auf der Krim im Februar 2017, Quelle: deutschlandfunkkultur.de

Looking at other protracted inter- and intra-state conflicts over territory in the post-Soviet space, I feel the urge to stress that if Ukraine wants the territory, and the people of Crimea, ‘back’, then alie­na­ting both the territory and its inha­bi­tants might not be an ideal stra­tegy for it, despite the massive viola­tion of its terri­to­rial inte­grity.

Also based on other status conflicts beyond the region, I would like to argue for a prag­matic approach in buil­ding ‘islands of agree­ment’ or for dealing with ever­yday issues, e.g. infra­st­ruc­ture, energy, roads, water supply. In short, taking the local/community into account and stri­ving for regu­lated inter­ac­tions without reco­gni­tion, as well as anti­ci­pa­ting poli­tical and legal sett­le­ments might be a prag­matic future stra­tegy.

Maria Issaeva: Had it taken place in the 19th century or earlier, the forcible annexa­tion of Crimea would have been perfectly in tune with widespread prac­tices used by many European states. Accep­ting that inter­na­tional law is not fit to deal with Crimea would mean a huge step back for contem­porary inter­na­tional law, which came into exis­tence after the two World Wars had broken out in direct conse­quence of the war poli­tics of the European powers.

Main­tai­ning a balance between a prag­matic approach in dealing with present-day Russia and the appli­ca­tion of the law of state respon­si­bi­lity when the terri­to­rial inte­grity of Ukraine is being violated appears to remain of vital impor­t­ance.

Kate­ryna Busol: From an inter­na­tional perspec­tive, I agree with Maria Issaeva, to acknow­ledge that inter­na­tional law is unfit to deal with Crimea would be, first, a shat­te­ring blow to the whole post-World War II legal order and, second, simply not true. The norma­tive part is, predo­mi­nantly, in place: the use of force or the threat thereof are prohi­bited, borders cannot simply be changed unila­te­rally, the exer­cise of the right to self-determination is not uncons­trained and there are rules gover­ning the conduct of an occu­pying state.

It is the proce­dural, the imple­men­ta­tion part, which is flawed, i.e. too readily gives way to Real­po­litikconsi­de­ra­tions. However, if this is the case, modi­fying the norms could hardly bring about the desired change, as it is the inter­na­tional willing­ness to enforce them that needs to become more cohe­rent. As regards the domestic dimen­sion, many inter­na­tional law mecha­nisms are trig­gered or cata­lysed by internal steps. For instance, the launch and dyna­mics of inves­ti­ga­tions by the Inter­na­tional Criminal Court depend to a consi­derable degree on domestic procee­dings concer­ning the alleged war crimes and crimes against huma­nity. The quality of such procee­dings depends on domestic imple­men­ting legis­la­tion and on the exper­tise of domestic inves­ti­ga­tors, prose­cu­tors, defence lawyers and judges. This is one of the many examples of the inter­con­nec­ted­ness and inter­de­pen­dence of the inter­na­tional and domestic compon­ents of inter­na­tional law that, inevi­tably, impact its effi­ci­ency, inclu­ding with respect to Crimea.

In a 2014 article he wrote for the German daily F.A.Z., international-law scholar Stefan Talmon spoke of a “duty to annoy Russia”, poin­ting to the neces­sity of active non-recognition of Crimea’s status with respect to what he consi­ders its illegal annexa­tion by Russia.
Yet, there is also a huma­ni­ta­rian poli­tical principle that the civi­lian popu­la­tion of an annexed territory should not be subjected to addi­tional suffe­ring through inter­na­tional measures such as sanc­tions that affect this territory. In your opinion, what does this mean in prac­tice in 2019, and beyond?

Cindy Wittke: Of course, sanc­tions against Russian acts of aggres­sion and breaches of inter­na­tional law are important, from both legal and poli­tical points of view. Yet, again, the ques­tion is: what we can learn from the ever­yday reality of other protracted status conflicts?

What impli­ca­tions do the situa­tions in those other terri­to­ries have, from not only a huma­ni­ta­rian but also human perspec­tive, for the people living in Crimea, for the refu­gees, who have mostly settled in other parts of Ukraine, and for the people living in the Ukrai­nian regions borde­ring Crimea? Estab­li­shing chan­nels for poli­tical dialogue and tech­nical coope­ra­tion through ‘islands of agree­ment’ might – despite making legal and poli­tical ambi­guity a stra­tegy – prepare paths for future sett­le­ments.

Brücke über die Straße von Kertsch, die 2018 eröffnet wurde. Quelle: wiki­pedia

Maria Issaeva: Crimea has sent Russia very far back in time, intel­lec­tually, econo­mi­c­ally and other­wise, and the first people to become the victims of this massive viola­tion of inter­na­tional law were, along with Ukraine on the other side, people in Russia, as well as the people living in Crimea, by virtue of its incor­po­ra­tion.

In a way, Crimea’s case has revealed a “Stock­holm syndrome” among Russians vis-à-vis their poli­tical leadership. The “war of sanc­tions”, which are pres­um­ably being imposed to perform said “duty to annoy”, should be a war between governments, and not between people.

Kate­ryna Busol: The formu­la­tion of this ques­tion is tricky in two regards. First, the word “annoy” seems to add a justi­fi­catory flavour, as if Russia’s reac­tions could some­times be accepted as an answer to the alleged “irri­ta­tions” – such as the Crimea-related non-recognition reitera­tions and sanc­tions – that gene­rated them. This is hardly the case. Sanc­tions and coun­ter­mea­sures are not uncommon in inter­na­tional law. For instance, exten­sive sanc­tions were imposed on Libya in connec­tion with the bombing of the plane over Lockerbie. It seems natural for a state that is actively annexing the territory it is occu­pying to face similar conse­quences.

Second, although a state is bound to ensure, to the best of its abili­ties, the rights and free­doms of its popu­la­tion in territory that belongs to it which is occu­pied or tempora­rily uncon­trolled, such an obli­ga­tion is not unli­mited. An abso­lute obli­ga­tion on the part of an injured state to grant the full spec­trum of rights and privi­leges to its popu­la­tion in terri­to­ries of that state that are controlled by another state would simply be unrea­listic. This is a very tricky situa­tion on a legal, poli­tical, diplo­matic, huma­ni­ta­rian and, first and fore­most, human level. It is unli­kely that any initia­tives by Ukraine to impede the supply of food or other life-saving resources to the penin­sula or urging other states or orga­ni­sa­tions to do so would pass the lawful­ness thres­hold.

At the same time, such cases are rarely that black and white. The propor­tio­na­lity and the depth of an effort by Ukraine to help its Crimean popu­la­tion would have to be assessed on a case-by-case basis.

The trickiest part would be to balance the policy of non-recognition and the accom­panying sanc­tions with rebuil­ding and main­tai­ning rela­tions with the resi­dents of Crimea, espe­ci­ally in light of all the mass media influ­ences they are exposed to.

Is there a universal inter­na­tional law that regu­lates state’s conduct? Or do we need to debate clashes between Russian, Ukrai­nian, Western and other approa­ches to inter­na­tional law and its role in inter­na­tional poli­tics?

Cindy Wittke: Based on my rese­arch, I would like to stress that inter­na­tional law and poli­tics can hardly be consi­dered as uncon­nected. On the other hand, the language of inter­na­tional law is not used only as an instru­ment in the toolbox of inter­na­tional poli­tics.

The use of such language is often rooted in a belief in inter­na­tional law as an objec­tive insti­tu­tion with which we can distin­guish between proper and improper conduct on the part of a state. However, this belief in inter­na­tional law’s norma­tive power deserves critical reflec­tion e.g., in light of recent debates in inter­na­tional legal scho­l­ar­ship on whether there are Russian (and other) approa­ches to inter­na­tional law and, ulti­mately, on the extent to which inter­na­tional law genui­nely is inter­na­tional.

Who and/or what deter­mines which norms and inter­pre­ta­tions are appli­cable? I would argue that we need to realise that, since 1991, the successor states of the former Soviet Union have faced the chal­lenge of formu­la­ting and imple­men­ting their own poli­cies of inter­na­tional law in inter­na­tional poli­tics as part of their state buil­ding and compre­hen­sive trans­for­ma­tion processes. Strong dyna­mics of conflict have shaped the inter­ac­tion of states in the post-Soviet space – e.g. the annexa­tion of Crimea and the outbreak of violent sepa­ra­tist conflicts in eastern Ukraine in 2014 – and have confronted the inter­na­tional commu­nity with diffe­rent takes on inter­na­tional law that seem to ques­tion funda­mental princi­ples of inter­na­tional and regional legal and poli­tical order(s).

Thus, we need tohear more voices from the region and take inter­na­tional law debate; seriously without ‘Orien­ta­li­sing’ Ukraine, Russia and the ‘Ukraine Crisis’.

Maria Issaeva: Examples of cases where most powerful actors choose to disobey the law in pursuing their self-interest are not hard to find; in this regard Russia is not a unique state. It would be diffi­cult, now, to deny that all of the perma­nent members of the UN Secu­rity Council, which was entrusted in 1945 with the task of main­tai­ning inter­na­tional peace and secu­rity, have failed this posi­tive respon­si­bi­lity. In this regard, each of them can be said to be one of the main threats to universal inter­na­tional law, rather than its guar­dian.

There are most certainly country-specific aspects of every approach to law in general, and to inter­na­tional law in parti­cular, inclu­ding with respect to how the law is made and applied in a parti­cular state, but also how the law is violated. For example, Russian government is so used to playing on a unified poli­tical field, where it can bend and abuse its national law to serve its own inte­rests – rather than being compelled to forge compro­mises with and among various civil society actors – that it might seem natural to them at a certain stage to try to do the same with inter­na­tional law. In this regard, it might be a useful exer­cise to assess indi­vi­dual national poli­tical approa­ches to law, inclu­ding inter­na­tional law.

Kate­ryna Busol: As a lawyer and as a person coming from a country affected by war, it pains me to admit that the inter­pre­ta­tion and appli­ca­tion of inter­na­tional law, which by its very name is meant to be inter­na­tional, is often substan­ti­ally affected by domestic poli­tical agendas. Indeed, it is quite popular now to ques­tion the univer­sa­lity of inter­na­tional law and call for a wider look at its inter­pre­ta­tions. Ironi­cally, such calls usually incite closer scru­tiny of Russian, Chinese or Brazi­lian inter­pre­ta­tion of inter­na­tional law – hardly ever of Viet­na­mese, Guate­malan or Ukrai­nian.

At the same time, the weak enforcea­bi­lity of universal inter­na­tional law and its poli­ti­ci­sa­tion domesti­cally do not always make the reso­lu­tion of an issue impos­sible. For instance, the expected UNSC veto on inter­na­tional efforts to ensure justice for Syria cata­lysed the nume­rous respec­tive domestic procee­dings in Germany, The Nether­lands, Sweden under the universal juris­dic­tion principle.
Simi­larly, the UNSC veto on the crea­tion of an ad hoc tribunal on the downing of flight MH17 led to the crea­tion of the Joint Inves­ti­ga­tion Team and the launch of corre­spon­ding domestic procee­dings in The Nether­lands. There­fore, it remains to be hoped that the poli­tical flavour of legal reaso­ning of certain states will not perman­ently obst­ruct the sett­le­ment of the Ukrai­nian case but will also open new domestic or regional legal avenues for dealing with it.

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  • Cindy Wittke is the head of the junior research group Frozen and Unfrozen Conflicts at the Leibnitz Institute for East and Southeast European Studies (IOS) in Regensburg. Since March 2019, she has led the project group “Politiken des Völkerrechts im postsowjetischen Raum” (Politics of International Law in the post-Soviet Space), funded by the German Ministry of Education and Research (BMBF).

  • Kateryna Busol is a Ukrainian lawyer specialising in international human rights, humanitarian and criminal law. Since 2015, Kateryna has worked for Global Rights Compliance (GRC). Within GRC, she advises Ukrainian state actors and NGOs on best practices in the investigation and prosecution of international crimes and on cooperation with the International Criminal Court (ICC). Kateryna was a fellow at the Kennan Institute and a Visiting Professional at the ICC.

  • Maria Issaeva is a lawyer from Moscow, Russia. Her prior professional experience includes a position as an A-grade lawyer at the European Court of Human Rights and an associate position at White & Case LLC (Moscow). She has served as a board member of the European Society of International Law since 2016.