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.
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.
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.
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.
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.
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.