The Kremlin claims that its every step in Crimea fully complies with international law. But does President Putin understand that, under international law, Ukraine could either arrest or shoot those unmarked troops, as mercenaries or common criminals?
United Nations Charter
Russia has breached a number of provisions of the United Nations Charter, the very foundation of international law, by its actions in Crimea, said Carolina von Gall, Assistant Professor of the Institute for Eastern European Law at the University of Cologne. In 2008-2009, the Institute's staffers served as legal experts in the Independent International Fact-Finding Mission on the Conflict in Georgia, which was established by the Council of the European Union.
‘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.’
First of all, according to von Gall, Russia has breached Article 2, paragraph 4 of the UN Charter, which says that ‘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 UN.’
The Kremlin argument (justification) of the need to protect Russian citizens and Russian-speakers in Crimea in this case is groundless, says von Gall, ‘it is not acceptable in international law to violate the territorial integrity of another state to save one’s own citizens,’
International law does have exceptions to this, set out in Article 51 of the UN Charter, which allows for the right of self-defence or a decision of the Security Council, in allowing a state to use force against the territorial integrity of another state.
Ashley Deeks of the University of Virginia Law School gives a more detailed explanation in Lawfare, the Brookings Institution's blog on national security law and policy. Deeks notes that international law generally recognises a ‘defence of nationals’ concept. However, this concept was implemented by states in very specific circumstances: firstly, when one state's nationals have been taken hostage in a different country (the failed rescue mission by the US government to free hostages held captive in the American Embassy in Tehran, in April of 1980); and secondly, when one state's nationals are under actual attack, and where their nationals face a more generic threatening situation, witness, the US operation in Grenada in October of 1983, the justification of which was the rescue of eight hundred American medical students; and the UK operations in Libya in 2001.
There are no indications that something like this has happened in Ukraine, von Gall emphasises: ‘In the current situation we also have no proof that Russian citizens were seriously threatened in Crimea.’
The Helsinki Accords
Russia has also contravened the Helsinki Final Act. ‘The particularly strong violation, I would say, would be of the OSCE Final Act, on the subject of the peaceful resolutions (Principle V), and the inviolability of frontiers (Principle III),’ said Jonathan Eyal, International Director at the London-based Royal United Services Institute.
Carolina von Gall agrees, adding that Russia's actions in Crimea may also contradict Principle II (Refraining from the threat or use of force) and Principle IV (Territorial integrity of States) of the Helsinki Final Act. In particular, Principle II underlines that ‘no consideration may be invoked to serve to warrant resort to the threat or use of force in contravention of this principle.’ In turn, OSCE's Principle IV requires a member state to ‘refrain from making each other's territory the object of military occupation <...> or the object of acquisition by means of such measures or the threat of them.’
Speaking off the record, these arguments have been confirmed by a staffer of the OSCE office in Warsaw, Poland: ‘There are many indications of a breach of the OSCE Final Act by the Russian Government.’ However, at this moment, the OSCE, an international organisation committed to collective security and stability through consensus-based agreements, is unlikely to officially declare its opinion, while the Crimean conflict continues to evolve, and is far from resolution.
Mr Putin's mercenaries
Professionally equipped and well organised soldiers, generally believed to be Russian, have been deployed in Crimea without any identifying markings, which is a further violation of international law, says Jonathan Eyal. 'We have a situation where we are talking about a very organised attempt to avoid any marking, and so avoid state responsibility. It is not only that these troops have no identifying marks, but also the equipment, the artillery pieces, the guns, the trucks, all the equipment that came with it, and the licence plates on the vehicles, have had their markings very deliberately removed, so that they could not be identified.'
'If they are operating with non- identified uniforms, then, under international law, they are either mercenaries, terrorists or simply common criminals.’
As part of its efforts to legitimise its actions in Crimea, the Kremlin is invoking the humanitarian intervention principle, which was used by the Western powers, for instance, during the NATO operation in Kosovo in 1999, and in Libya in 2011. Von Gall, however, says that Russia specifically argued against humanitarian intervention in the afore-mentioned cases. Eyal goes further: ‘There is no indication that people in Crimea were in any danger at all; there is no indication that someone was about to perpetrate a pogrom, burn churches, and all the other nonsense that is being said in Russia.’President Putin and other senior representatives of the Russian Government, however, are categorically denying Russia's affiliation to the ‘unknown soldiers’ in Crimea. ‘The Head of State is publicly denying any responsibility for these people, and suggesting that you can buy uniforms from ‘somewhere,” says Eyal, ‘yet if they are not identified as belonging to a particular state, and operating with non-identifiable uniforms, then, under international law they are either mercenaries, terrorists or simply common criminals. If Ukraine so wished, it could either shoot them or arrest these men, and put them on trial, because they have no protection under international law, since, in law, they are nobody.'
‘There is no indication that people in Crimea were in any danger at all.’
Moreover, Russia's invoking the humanitarian intervention principle, contradicts its own second argument, stating that Moscow began its actions in Crimea after the ousting of President Viktor Yanukovich, who had requested that Russia's armed forces enter Ukraine, and establish law and order.
‘It is pretty obvious that this is a post-factum justification, after the decision has already been taken to use force’ says Eyal, ‘and, as such, a clear violation of existing international agreements. The fact that the Western powers may have also violated these principles is not very relevant, the whole point of international law is to avoid conflict, not the opposite.’
‘It is pretty obvious that this is a post-factum justification, after the decision has already been taken to use force.’
Regional agreements
Russia and Ukraine are parties to a number of major bilateral and multilateral agreements at a regional level, including the Minsk Agreements (1991) between Russia, Ukraine and Belarus on the dissolution of the Soviet Union; the Budapest Memorandum (1994), which provides security assurances by its signatories (Russia, the US and the UK) relating to Ukraine's accession to the Treaty on the Non-Proliferation of Nuclear Weapons; the Russian-Ukrainian Treaty on Friendship, Cooperation and Partnership (1997); and the Black Sea Fleet Agreement (1997).
Russian actions in Crimea, according to Eyal, violate all these agreements, because all of them place the sovereignty of states as the most important principle; state that the use of force as a first resort rather than a last resort is unacceptable; have provisions about the peaceful resolution of disputes; and each have a section about respect for international borders, and for non-interference in the internal affairs of another country.
A particularly strong violation, according to Eyal, is that of the Budapest Memorandum, and the joint guarantees given to Ukraine by the US, the UK and Russia. For instance, the second article of this agreement says that none of its signatories'‘weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the UN Charter.’
Eyal is clear about Russia’s actions in Crimea: ‘If the Russians have doubts about the territorial integrity of Ukraine, there are plenty of ways to talk to the Americans or British co-signatories about it, whereas no such discussions took place before the Russians entered Crimea. In that respect, it is a violation of international law.’
A version of this article was originally published in Russian, in New Times magazine, an independent Russian weekly