By Desiree van Iersel
In 2014, Russian troops made several military incursions in the territory of the Ukraine. Later that year, Russian troops took control of government buildings in the Crimea and other critical infrastructure. From the beginning of this conflict, the UN has considered it an illegal annexation, however the Russian Federation claims otherwise.
Both the Russian and the UN view of this conflict will be discussed below. Details of the events that took place in 2014 and 2015 in the territory of the Crimea will be used to illustrate the opposing views. The arguments for the UN are based on statements of for instance the General Assembly and for the Russian view a documentary is used that includes two in-depth interviews with Russia’s president Vladimir Putin. First, the UN view shall be examined and secondly, the Russian arguments will be discussed.
The United Nations
On the 27 of March 2014, the UN General Assembly approved a resolution that called Russia’s annexation of the Crimea illegal. The vote showed international anger at Russia’s actions for more than half of the 193 UN members voted “yes” (Peters, 2014). This anger comes from the fact that, by invading Ukraine, Russia violated the UN Charter. The purpose of this charter is to maintain international peace and security. This is primarily represented in article 2(4) of the Charter which states 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 United Nations.”
Territorial integrity in international law is defined as “the principle that a state’s borders are sacrosanct; the idea that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states.” The borders of Ukraine were not respected by Russia as they had sent troops (and even denied doing so) and they did not refrain from promoting secessionist movements because the Crimean government buildings were seized by armed Russian troops on Wednesday the 26th of February, 2014 (Peters, 2014). Those troops raised the Russian flag and proclaimed that a referendum would take place on March 16th 2014 to give the people the choice to join the Russian Federation. Since this referendum was held to see how many people wanted to join the Russian federation this can be considered to be a promotion of secessionist movements in the territory of the Crimea.
Besides this, it also promoted border changes in Ukraine as the purpose of the referendum was deciding on the possibility of joining the Russian Federation. This would obviously change the existing borders of the Ukraine. In light of the events that took place, the Russian involvement in the Crimea was in violation of the UN Charter because force was used to impair the territorial integrity of Ukraine and to illegally annex the Crimea (Peters, 2014).The political independence of Ukraine was impaired as well when the Russian-led referendum took place. By setting up a referendum and thus meddling in the internal affairs of Ukraine, the Russian Federation did not recognize the fact that the independence of a country implies that no other state has legal authority over another political independent state.
Before the referendum took place, an amending draft article on the Russian constitution was presented. The constitution of the Russian Federation states in article 65(2) that cession to the Russian federation is based on mutual accord between Russia and the state in question. However, on the 28th of February 2014, an amending draft to this article was introduced that removed the factor of mutual accord and stated that a part of the state also had the possibility to become part of the Russian Federation (Council of Europe; Venice Commission, 2014, D (39)). One of the criteria laid down in the draft was that the government of the state in question was neither efficient nor sovereign anymore and that therefore part of the state could request a cession to the Russian federation via request or referendum (Council of Europe Venice Commission, 2014, D (34)). However, according to the Council of Europe, a cession can only be carried out by having mutual consent between the original and new sovereign (Council of Europe; Venice Commission, 2014, D (17)). However, the Venice commission states that in this bill, the original territorial sovereign has no say in the matter for, as is proposed in this amending draft, it can also be a part of the state that consents to cession of the territory (Council of Europe; Venice Commission, 2014, D (17)). Besides this, the Russian federation therefore gave itself the power to assess the efficiency of the sovereign government of another state. Therefore, under the pretext of protection of the citizens of the foreign state, it attempted to change the borders of said state and also attempted secession and aggravated the state’s political and constitutional crisis. (Council of Europe; Venice Commission, 2014, D (37)).
According to the Venice Commission, the draft law of the Russian Federation “ is not in compliance with several fundamental international law principles, especially the principle of territorial integrity of states, the principle of sovereign equality, the principle of non-intervention in the internal affairs of a state, and, potentially, the prohibition of the threat of force” (Council of Europe; Venice Commission, 2014, D (39)). These principles of territorial integrity and sovereignty of the state were also laid down in the treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation. Article 2 of this treaty states that both parties shall respect the other’s territorial integrity and inviolability of their borders. Article 3 in particular highlights the non-interference in internal affairs. However, by invading the Crimea, the Russian federation has breached this treaty for it did not respect Ukraine’s borders by sending troops and organizing a referendum. This exact situation occurred on the 22 of August, 2014 when the Russian federation sent a “humanitarian convoy” ,which consisted of more than 250 military vehicles, to Loegansk (Jansen, 2014). When the Ukrainian border control did not make enough haste in letting them through, the vehicles entered the country through the area controlled by the secessionists (Jansen, 2014). Ukraine saw this as a direct Russian invasion that went against their borders. Ukraine also claimed that the Russian federation interfered in its internal affairs by, first of all, taking over the Crimea government buildings and claiming that a referendum was necessary, and secondly because there were rumors in the Crimean area that Russia was distributing Russian passports to the inhabitants (Jansen, 2014, 200).
Then there is the fact that several states signed the Budapest Memorandum on Security Assurances in 1994. In this Memorandum, the elimination of nuclear weapons was determined. Several states, including the US, the UK and the Russian Federation affirmed their commitment to Ukraine to respect the country’s borders, its independence and its sovereignty as a condition for the reduction in number of nuclear weapons. This memorandum was once again confirmed by the Russian Federation and the US in 2009. However, through the invasion of Ukraine and their interference in the state’s internal affairs, Russia did not respect the state borders, its sovereignty or its independence and their actions are therefore in violation of what is stipulated in the memorandum.
The Russian Federation
However, the Russian legal view on the conflict that took place in the Crimean peninsula is quite different. The legal defense for Russia’s actions was put forth via a documentary called: Crimea: the Way Home, which was released on March 22, 2015. In this documentary, president Putin described his motives for having acted as he did. The following three main reasons are described: aiding the Crimeans was Russia’s responsibility to protect and that by aiding them, the Crimeans could express their free will and therefore exercise their right to self-determination, and that sending military personnel did not breech the sovereignty of Ukraine for the number of troops did not exceed that what was laid down in the Partition Treaty on the Status and Conditions of the Black Sea Fleet.
In this documentary, Putin kept repeating that he could not abandon the Crimean population, that the only objective was to prevent more bloodshed and that they could not abandon them (Kraus & Kondrashov, 2015). Combining his statements with the supposed “humanitarian convoy” that was sent to the Ukraine on the 22nd of August 2014, it can be said that he seems to claim that sending Russian forces was a form of humanitarian intervention (Jansen, 2014). “In humanitarian intervention, it can be noted that “the responsibility to protect” is an umbrella concept that entails the “responsibility to react” but also the “responsibility to prevent”” (Evans, 2004, 83). It is actually pointed out that the responsibility to prevent is the most important dimension of the concept of responsibility to protect (Evans, 2004). The responsibility to prevent as a motive for the Russian intervention was put forth in the following statement by Putin: “the Russian forces came to protect, not occupy the area” (Kraus & Kondrashov, 2015). Since this responsibility has been hotly debated, several criteria have been suggested: “one of the criteria for responsibility to protect is that there should be a just cause, which in its turn is either in a situation of actual or apprehended large-scale loss of life or ethnic cleansing” ( Evans, 2004,85). Russia argues to have had a just cause for intervening because on February 20th, 2014 the Korsun massacre took place. Eight busses with Crimeans were ambushed by the Euro-Maidan supporters, the busses were burned and the passengers shot at point-blank, tortured, humiliated, and beaten to death. The victims were forced to sing the Ukrainian anthem, their passports were taken away and they were forced to speak the state language. The actions were marked by a strong hatred for the Crimean people (Kraus & Kondrashov, 2015). There seems to be a just cause to claim the responsibility to protect when faced with such attacks which led to loss of life, severe injury, and the humiliating actions toward the Crimeans. These actions seemed directed toward a specific ethnic group. As is put forward in paragraph 568 of the International Standards on Minority Rights, an ethnic group is one that consists of objective factors, such as shared language, religion, culture or ethnicity and the subjective factors that include that members must identify themselves as members of such a minority. The Russian federation apparently sees the inhabitants of the Crimea as such an ethnic group for it is put forward in the documentary that they speak their own language, have their own culture and see themselves as Russian (Kraus & Kondrashov, 2015). Because of the actions against the inhabitants of the Crimean peninsula, Russia started to look into the possible desire of the people to join the Russian federation. As Putin stated: “there would only be Russian action if the people wanted it” (Kraus & Kondrashov, 2015). That reason was put forward to have issued an opinion survey on this matter which later lead to the referendum being held. He speaks of this referendum as the enforcement of the will of the Crimeans (Kraus & Kondrashov, 2015).
Therefore, he argues that he has only given them an opportunity to self-determination. “The self-determination principle holds that any people, simply because it considers itself to be a separate national group, is uniquely and exclusively qualified to determine its own political status, including, should it so desire, the right to its own state. The concept, therefore, makes ethnicity the ultimate standard of political legitimacy” (Hannum, 2011, 7).
The inhabitants of Crimea primarily speak Russian, their history is immediately linked to Russia for Sevastopol was the base of the Russian naval glory and the population is, and feels, Russian (Kraus & Kondrashov, 2015). In the documentary, it was also mentioned that the identity of the Crimeans was oppressed for there were more than 40 Ukrainian laws passed that limit the use of the Russian language (Kraus & Kondrashov, 2015). Therefore, it was claimed that the people of the Crimea have the right to choose if they want to remain part of Ukraine, have their own state or decide if they want to join the Russian federation. Since the referendum showed that the majority of the people wanted to join Russia, their decision must be respected.
As for the number of troops stationed in the Crimean peninsula, Putin states that there were less than 20.000 present at the time. As stated in article 4 of the Partition Treaty on the Status and Conditions of the Black Sea Fleet, Russia was allowed to have 20.00 men stationed in the Crimean peninsula. When troops were sent to that area, the sovereignty and borders of Ukraine was not violated for that number was allowed as it is stated in the aforementioned treaty.
My opinion on the matter
Personally, I think there are some problems with the aforementioned reasoning on the Crimean referendum, the right to self-determination of the Crimeans and Russia’s claim to responsibility to protect.
As for the referendum, it does not seem to have been conducted in a fair and unbiased way; for the alternative of having Crimea remain Ukrainian territory was not one of the alternatives to choose from (Peters, 2014). “Nor does this referendum live up to international legal standards and it therefore does not constitute a condition for the change in Ukraine’s territorial borders” (Peters, 2014, 258). If the objective of this referendum was to give the people of Crimea a voice to express their free will, it should at least have been done in a way that lives up to the international legal standard for this seems to be an apparent example of doing something halfway.
What must be taken into account next to the question of unbiasedness is the fact that the Crimean government buildings were either protected or taken over by Russian forces. Something like this would most likely put pressure on the voting because Russian presence is present and a possible threat imminent. This makes that the voting procedure does not seem sound or unbiased. As was already mentioned, the purpose of the referendum was to give people a choice if they wanted to become part of the Russian federation. This was argued to have been in line with the people’s right to self-determination. However, as was pointed out by the Supreme Court of Canada, this right only extends from the internal right to self-determination to the external right of self-determination when “a people is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part” (Secession of Quebec,1998, 135).
As for the right to internal self-determination, that implies that there is some sense of being able to govern oneself. Since there are Crimean government buildings in the area, this seems to be the case.
Therefore I do not think they have the right to external self-determination. Besides this, the expression of becoming one with the Russian federation may be partially due to Russia’s infringement on the principle of non-intervention in the internal affairs of the state as I already pointed out in the UN view.
As for sending Russian troops to protect the Crimeans and linking this on the responsibility to protect, it is my opinion that such an action must go via the UN Security Council instead of a state acting on its own accord. The intention of responsibility to protect may have been the right one but the procedure of doing so was not. However just this motive might have been, if it was R2P, it is odd that during the discussion on an EU-Ukraine trade deal Putin’s advisor Sergei Glazjev stated that “Russia could no longer guarantee Ukraine’s status as a state and could possibly intervene if pro-Russian regions of the country appealed directly to Moscow” (Walker, 2013). This makes it sound as if Russia’s actions in the Crimea were not motivated by the responsibility to protect but from the objective of intervening because of the trade deal between the European Union and Ukraine.
A statement as such is quite reminiscent of the USSR Brezhnev doctrine that limited the independence of satellite states and kept all the “real” power in Moscow. By saying that Russia cannot guarantee Ukraine’s statehood, it seems as if Russia is the original guarantor of Ukraine’s statehood. When the ex-satellite state Ukraine went against Russia’s wishes and decided on a trade deal with the European Union, Russia wanted to take back what was not theirs to give after the dissolution of the USSR. This threat seems to undermine the claim of having a just cause for sending troops into the Ukraine.
An aspect that was not taken into account before are the economic sanctions Russia placed on Ukraine. When Ukraine wanted to sign the EU-Ukraine trade deal, sanctions were put in place and threats of a trade barrier were issued. Then Ukraine suddenly abandoned this EU trade deal to enter into a joint venture with Russia which entailed monetary aid and a price reduction for Russian gas (Jansen, 2014). However, this discount could be stopped any time by Russia. This makes it look like Russia stretched its power even further to Ukraine. This of course also brought with the fear of the possibility that Russia could stop any time with their monetary aid and gas exports (Jansen, 2014). The pressure Russia put on Ukraine to step away from the European Union makes their actions seem less likely to stem from a just cause and more like an action focused on their own best interests.
After comparing the two sides, I still think that Russia’s actions are not legal and consider the change in Ukrainian borders as an action caused by Russia’s illegal annexation of the Crimea. In my opinion, a secessionist movement in the Crimea may have started to exist over time-if the Crimeans feel as Russian as they are said to feel.