Kateryna Busol

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...

Kateryna Busol

Politik und Völkerrecht. Drei internationale Völkerrechtsexpertinnen diskutieren über die Annexion der Krym

Cindy Wittke, Kateryna Busol und Maria Issaeva

Politics and International Law: Three International Experts Debate the Annexation of Crimea

Cindy Wittke, Kateryna Busol und Maria Issaeva