Russia’s Annexation of Crimea: An Analysis under the Principles of Jus ad Bellum

 Introduction

The Legality of the Use of Force under the UN Charter

In the devastating aftermath of World War II, the international community came together to prohibit the use of force in international relations. The Charter of the United Nations (Charter or CUN) became the formal codification of the rules governing the use of force (jus ad bellum). Under the Charter, war was no longer the prerogative of sovereign States. Rather, States could only resort to the use of force as a collective security measure under Article 42 of the Charter or in self-defense under Article 51. Any use of armed force not falling within one of these two narrow exceptions was deemed to be a violation of international law.

Russia’s Use of Force in Crimea

Within this backdrop, Russia’s deployment of military forces within the sovereign territory of the Ukraine, its ordering of Ukrainian forces to withdraw from the Crimean Peninsula and its occupation and annexation of Crimea has been decried by the international community as violations of international law. Yet Russia has put before the Security Council and the international media a series of defenses arguing that it has not acted contrary to international law. First, Russia argued that it acted in defense of Russian speakers residing in Crimea. Then, Russia stated that its use of force was in response to a request for military assistance by the democratically-elected head of the Ukrainian State. Later, Russia argued that it never used military force in the Ukraine; rather, it was local Ukrainian militias that stormed and occupied Ukrainian military bases. Finally, Russia argued that the annexation of the Crimea was achieved by a democratic referendum in which over 97% of Crimeans voted to voluntarily separate from Ukraine and join Russia as a federal subject.

This article evaluates the claims that Russia has made with respect to Crimea and whether they hold weight under international law.

Russia’s Arguments with Respect to the Use of Force in Crimea

Argument 1: Russia Acted in Defense of Russian Speakers Residing in Crimea

Overview

Russia initially claimed military intervention in Crimea was necessary in order to protect Russian nationals from the chaos in Ukraine following Yanukovych’s ouster. Russia argued that was necessary to rescue them from targeted persecution at the hands of pro-Ukrainian extremists.

Issues with the Russian Argument

The Russian argument suffers from both factual and legal problems. On a factual level, Russia has not presented credible evidence that ethnic Russians living in Crimea have actually been targeted by pro-Ukrainian nationals. If they were targeted, one would have expected Russia to allow monitors from the Organization for Security and Co-operation for Europe (OSCE) to visit Crimea and assess the security situation. However, rather than allow them in, Moscow has “stopped OSCE military observers from entering Crimea.” Meanwhile, as Russia holds Crimea off limits, it encourages the OSCE to visit the rest of the Ukraine.[1]

Perhaps Russia chose to play the “defense” card because it recognizes that self-defense is one of the two exceptions to the prohibition of the use of force under the United Nations Charter. However, the legal grounds of Russia’s position is similarly untenable. Russia’s use of armed force in another sovereign State to protect Russian nationals does not qualify for the “self-defense” exception to the use of force. Under Article 51 of the UN Charter, Russia’s right to use force in self-defense is only triggered “if an armed attack occurs against a Member of the United Nations [i.e., Russia]” (Art. 51 CUN). Even if the targeting of ethnic Russians in Crimea had occurred, such targeting does not constitute an “armed attack” against Russia for the purpose of employing the use of force against Ukraine.

Argument 2: The Occupation of Crimea as a Lawful Response to a Request by a Government for Assistance

Overview

Russia initially argued that the occupation of Crimea did not constitute an unlawful use of force because it was in response to a request by a government for military assistance. Russia made this argument on 4 March 2014 before the United Nations Security Council, where Russia's Permanent Representative to the United Nations, Vitaly Churkin, presented a photocopy to the Security Council of a letter dated 1 March 2014 allegedly signed by Victor Yanukovych requesting Russian military intervention in Ukraine to restore law and order.[2] The argument, as summarized by Chris Borgen Opinio Juris, is that the Russian military intervention was not an “invasion, but rather a lawful response to a request for assistance by a  government.”[3]

Issues with the Russian Argument

Analyzing Russia’s argument with respect to Ukraine’s “request for military assistance” requires a two-pronged approach that looks first at whether Victory Yanukovych requested Russian military assistance and, second, whether Mr Yanukovych had the authority to do so.

Did Victory Yanukovych Request a Russian Military Assistance?

The first issue is whether Victor Yanukovych ever requested a Russian military intervention in Crimea. The Russian Permanent Representative to the United Nations waved a letter allegedly signed by Mr Yanukovych, but the letter itself has not been made public nor has it been open to public scrutiny. Mr Yanukovych never himself admitted to having authored the letter or requesting a Russian invasion of Crimea.

Does Mr Yanukovych Have the Authority to Request a Russian Military Intervention?

Yet even if the letter was authentic, a key question remains: Did Mr Yanukovych have the authority to request a Russian military intervention? To answer this question requires analyzing two sub-questions: (i) Is Mr Yanukovych the legitimate leader of Ukraine? and (ii) If so, does the President of Ukraine have the authority to call in a foreign military under the Ukrainian Constitution?

Is Mr Yanukovych the legitimate leader of Ukraine?

On 22 February 2014, 328 of 447 Members of the Ukrainian Parliament (MPs) (about 73%) voted to remove Viktor Yanukovych from the post of president of Ukraine, a post in which he had been serving since February 2010. The Parliament voted to hold early presidential elections on 25 May and appointed Oleksandr Turchinov as the new speaker of the Rada and as the interim President. A new Council of Ministers was then elected by the Rada on February 27.

Since 22 February, Russia has refused to recognize the ouster of Mr Yanukovych as legitimate under the Ukrainian Constitution. Russia has further refused to recognize the new Ukrainian authorities, which Russia claims to have come to power through an unconstitutional armed insurrection. Russia continues to recognize Yanukovych as the only legitimate head of the Ukrainian State.

Russia’s position is not without merit. Daisy Sindelar from Radio Free Europe commented that “it is not clear that the hasty February 22 vote upholds constitutional guidelines, which call for a review of the case by Ukraine's Constitutional Court and a three-fourths majority vote by the Verkhovna Rada -- i.e., 338 lawmakers."[4] Neither the Constitutional Court’s review nor the three-fourths majority vote was achieved.

A strong basis can therefore be made that Mr Yanukovych was not impeached according to the provisions of the Ukrainian Constitution. However, this does not address the fact that the Ukrainian President abandoned his post. Following his ouster, Yanukovych travelled to the pro-Russian Crimea and on 27 February, asked Russian authorities to guarantee his personal security in Russia. He subsequently fled to Russia and on 28 February, appeared in Rostov-on-Don, where he lacks the ability to carry out his obligations as President. The Ukrainian head of State thus absconded and left Ukraine without a head of State.

The Ukrainian Parliament approached this issue by declaring that Yanukovych “self-abdicated” (or “self-removed” himself), thus requiring Parliament to take action to fill in the power vacuum by electing an interim government.

Does the President of Ukraine have the authority to call in a foreign military under the Ukrainian Constitution?

Yet even if it is established that Yanukovych remains the legitimate leader of Ukraine and that he requested Russia’s military intervention in Crimea, the Russian justification of the use of force in Crimea remains legally flawed. As stated by a partner of an international law firm’s Kiev office, “absolutely no Ukrainian President under the Ukrainian Constitution could ever unilaterally invite any foreign army into Ukraine … Any request for internal peace-keeping assistance would at a minimum require approval from Parliament.”[5] Therefore, regardless of whether Yanukovych remains the head of State, he never had the authority to authorize Russia to invade and occupy Crimean territory.

Argument 3: The Russian Military Never Deployed into the Ukraine

Overview

Shortly after declaring that Mr Yanukovych requested military assistance in Crimea, Russia began claiming that the forces occupying the Crimea were not Russian military units but rather, local pro-Russian militias. Under this framework, Russia never violated international law because its military never invaded or occupied Crimea.

Issues with the Russian Argument

The main problem with Russia’s argument is the lack of facts supporting its claims and the plethora of facts outright contradicting them. Ukraine's United Nations envoy Yuriy Sergeyev stated that Russia deployed about 16,000 troops to Crimea. Ukraine further stated that Russia set a deadline for Ukrainian forces in Crimea to “surrender.”[6] According to BBC News Europe, “thousands of Russian troops have been pouring into Ukraine's Crimea region.”[7]

Moreover, reports have been made of military vehicles in Crimea bearing Russian license plates, military personnel sieging Crimean military bases wearing Russian military uniforms and Russian flags being raised over Ukrainian military bases that have been stormed and occupied. Putin counters that these facts do not indicate a tie to Russian state action. He quipped that “[t]here are many military uniforms. Go into any local shop and you can find one.” [8] He further insists that those who have been raising flags over Ukrainian military bases are local pro-Russian militias and that any Russian military personnel in Crimea fall within the 25,000 troops that Russia has assigned to the Peninsula per a previously-negotiated treaty with Crimea.

The international community has refused to lend credence to Putin’s claims. On the one hand, the credibility of Putin’s claims is undermined because he refuses to allow OSCE monitors to visit Crimea and assess the security situation.[9] On the other hand, his claims contradict the global media, which report multiple repeated acts of Russian military aggression in Crimea. AlJazeera reports that “Russian troops stormed the Belbek Air Base in Crimea … firing shots and stun grenades and smashing through concrete walls with armored personnel carriers.”[10] Other sources report that Russian military forces have moved into the Crimean Peninsula, shut down airports and took control of highway access points. The following is an account of the Russian occupation of Crimea provided by Esri[11] and AlJazeera[12]:

Late February: Russian military units occupied and blocked Belbek Airfield.

4 March: Russian troops fired warning shots as unarmed Ukrainian troops approached Belbek Airfield.

22 March: Russian troops stormed the Belbek Air Base, firing shots and stun grenades and smashing through concrete walls with armored personnel carriers, disarming Ukrainian troops stationed there.

10 March: Russian troops seized the Chornomorskoye Naval Missile Base.

11 March: Russia cancelled flights from Kiev to Crimea’s Simferopol International Airport, which was seized on February 28.

15 March: Russian troops seized the Strilkove natural gas facility.

18 March: Soldiers stormed a Ukrainian military mapping facility at Simferopol, killing a Ukrainian guard and wounding another.

18 March: Vladimir Putin announced Crimea's annexation and on Friday, 21 March, Putin signed legislation formally sealing Crimea’s annexation.

19 March: Pro-Russian militia seized the Ukrainian naval headquarters compound at Sevastopol.

Russian troops have also seized the Ukrainian military base at Perevalnoe, the Kirovsky Military Airfield, Yevpatoriya Air Base, Dzhankoy Air Base, Bakhchysaray Military Base and the two highway access points to the Crimean Peninsula (Highway M-17 and Highway M-18).

Argument 4: The Annexation of Crimea Was Achieved through a Democratic Referendum

Overview

Russia’s final argument is that the annexation of Crimea was achieved through a democratic referendum, where over 97% of Crimeans voted to voluntarily separate from Ukraine and join Russia  as federal subject. This is the argument that Russia has most consistently voiced since the March annexation of Crimea, perhaps because the argument resonates most with the principles of self-determination that have come to the forefront in international law as States such as East Timor and Kosovo have declared their independence. Moreover, the “self-determination” argument is one that Russia will likely revisit as it urges Ukraine to adopt a federal system of government that will allow the restive eastern provinces of Ukraine to align themselves politically with Russia and come into the Russian sphere of influence.

Issues with the Russian Argument  

Many commentators have observed that international law has little to say as to the legality of political referendums for independence. The International Court of Justice, in its 2010 Advisory opinion on Kosovo’s declaration of independence, held that a unilateral declaration of independence is not a per se violation of international law. However, regardless of whether the Crimean referendum was proper under international law, the referendum suffers from troubling procedural irregularities. For example, at the time of the referendum, Russia, which had an obvious interest in the outcome, had the Crimean Peninsula militarily occupied and, according to most sources, within its de facto control. Moreover, the only available choices to those who participated in the referendum were to either join Russia as a federal subject or restore the 1992 Crimean constitution, which would grant greater powers to the Crimean parliament including the power to establish relations with other states. Crimeans did not therefore have the option to keep the then-applicable status quo. Furthermore, the referendum was rushed and conducted under great pressure, having been concluded in two weeks’ time. In addition, there is evidence that the 97.5% of voters that Russia initially claimed opted for secession did not accurately reflect voter turnout. Besides irregularities such as a 123% turnout in Sevastopol,[13] a sizeable Crimean Tatar minority boycotted the vote. According to Mustafa Dzhemilev, the former head of the Mejlis of the Crimean Tatars, “the actual voting turnout was at no more that 30%.”[14]

Finally, even if the Crimea referendum did not suffer from egregious procedural flaws, it is arguably illegitimate on a constitutional basis. The Kiev partner of the international law firm cited above comments that the Ukrainian Constitution does not contemplate the secession of territories, and where referendums are contemplated, they must be organized on a national, not regional, level. The Crimea referendum therefore lacks a proper Ukrainian legal basis.

Conclusion

Russia’s claims in support of the Crimea annexation have taken various twists over the past six weeks, yet regardless of which claims Russia adopts, its position lacks justification under international law. Unless one accepts the Russian claim that it never employed the use of force in Crimea (a claim countered by the global media and international community), Russian interference in Crimea runs contrary to the principle of state sovereignty enshrined in the UN Charter and the prohibition on the use of armed force under international law. By departing from some of the most basic principles of jus ad bellum, Russia’s interference in Crimea introduces uncertainty and instability to international relations.

[1] “Russian forces move on Crimea air base, European monitors head to Ukraine,” AlJazeera America (22 March 2014), available at http://america.aljazeera.com/articles/2014/3/22/osce-russia-crimea.html.

[2] “Ukraine's Yanukovych asked for troops, Russia tells UN,” BBC News Europe (4 March 2014), available at http://www.bbc.com/news/world-europe-26427848.

[3] Chris Borgen, “Who Speaks for Ukraine?” Opinio Juris (3 March 2014), available at http://opiniojuris.org/2014/03/03/who-speaks-for-ukraine/.

[4] Daisy Sindelar, “Was Yanukovych's Ouster Constitutional?” Radio Liberty, Radio Free Europe (23 February 2014), available at http://www.rferl.org/content/was-yanukovychs-ouster-constitutional/25274346.html.

[5] Given the political sensitivity of the question and the firm’s offices in both Ukraine and Russia, the attorney spoke on the basis of anonymity.

[6] Id.

[7] “Ukraine's Yanukovych asked for troops, Russia tells UN,” BBC News Europe (4 March 2014), available at http://www.bbc.com/news/world-europe-26427848.

[8] Shaun Walker, “Russian takeover of Crimea will not descend into war, says Vladimir Putin,” The Guardian (4 March 2014), available at http://www.theguardian.com/world/2014/mar/04/ukraine-crisis-russian-troops-crimea-john-kerry-kiev.

[9] “Russian forces move on Crimea air base, European monitors head to Ukraine,” AlJazeera America (22 March 2014), available at http://america.aljazeera.com/articles/2014/3/22/osce-russia-crimea.html.

[10] Id.

[11] “Crisis in the Crimea: The Showdown Between Ukraine and Russia,” available at http://storymaps.esri.com/stories/2014/crimea.

[12] “Russian forces move on Crimea air base, European monitors head to Ukraine,” AlJazeera America (22 March 2014), available at http://america.aljazeera.com/articles/2014/3/22/osce-russia-crimea.html.

[13] “Over 123% of Sevastopol residents vote to join Russia!” Euromaidan PR (17 March 2014), available at http://euromaidanpr.com/2014/03/17/over-123-of-sevastopol-residents-vote-to-join-russia/.

[14] “Tatar leader says Crimean Tatars boycotted “referendum,” Euromaidan PR (17 March 2014), available at http://euromaidanpr.com/2014/03/17/tatar-leader-says-crimean-tatars-boycotted-phony-referendum/ .

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