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Is Russian military presence in Crimea legally justified?

On March 1, 2014, Vladimir Putin, the President of Russia, requested permission from the Coucil of Federation, the upper chamber of the Russian parliament, to deploy military forces in Crimea. The decision was unanimously approved. The most interesting fact is that an authorization was given several days after more than 150,000 of the Russian troops have already been on alert near the Eastern border of Ukraine and the Crimean peninsula has been effectively controlled by the Russian militaries, however without any insignia. Mr. Putin requested a use of armed troops to normalize the socio-political situation in Ukraine as there is a “threat to the lives of citizens of the Russian Federation as well as the personnel of the armed forces of the Russian Federation on Ukrainian territory”.

It shall be noted that this decision violates such international instruments as (1) the United Nations Charter of 1945, (2) the Declaration of Principles of International Law of 1970, (3) the Helsinki Final Act of the Conference on Security and Cooperation in Europe of 1975, (4) the Agreement of Friendship and Cooperation between the Russian Federation and Ukraine of 1997 as well as (5) the Budapest Memorandum of 1994 in which the UK, the USA together with Russia agreed to respect the territorial integrity of Ukraine and restrain from the threat or use of force regarding Ukraine in exchange for the decision of Ukraine to become a non-nuclear State. Hence, Russia is responsible for the violation of the abovementioned international instruments and shall bear international responsibility.

Why shall Russia bear responsibility under international law?

Under customary international law, to impute the responsibility of a State, two conditions should be met. Firstly, the conduct should be attributable to that State. Secondly, the disputed conduct must be in breach of that State’s international obligations.

1) It is generally recognized (Article 4 of Articles on State Responsibility (ASR), Genocide case) that the conduct of a State organ shall be considered as an act of that State. Moreover, a State should bear responsibility for actions of its military personnel (Thomas H. Youmans (U.S.A.) v. United Mexican States, 1926; Article 4 ASR). However, the military troops deployed within the Crimean peninsula are without insignia. In addition, the officials of the Russian Federation deny any presence of the Russian troops at the territory of sovereign and independent Ukraine. Let alone, the latest interview of Mr.Putin that took place on March 3, 2014, in which he told that there are no Russian troops in Crimea, and all the militaries there are the members of the self-defense units of Crimea. Still, there are numerous evidence (videos, photos, eyewitness testimony etc.) that indeed it is the Russian militaries that are present at the territory of Ukraine. It is the Russian militaries that illegally occupied the peninsula encouraging Ukrainian militaries to surrender.

Russian soldiers in Crimea. Photo: The Guardian
“Unidentified” soldiers in Crimea. Photo: The Guardian

2) But let’s just for a moment follow the absurd claims of the Russian officials and imagine that there are no Russian militaries occupying the Crimean peninsula and indeed these are the participants of the self-defense units of Crimea. Ok! But it sounds absolutely ridiculous that the members of the self-defense units speak Russian language, have the same uniform, weapons, armored cars as Russian militaries, drive vehicles with Russian license plates and when asked by journalists recognize that they are…. the militaries of the Russian troops.

But after all, let’s imagine that these self-defense units, as Russia claims, really exist. Will Russia bear responsibility for the activities of the so-called self-defense units of Crimea consisted, as Russia claims, of Crimean dwellers? Yes. As it follows from the practice of International Court of Justice (ICJ) (Nicaragua case, Genocide case) and International Criminal Tribunal for the Former Yugoslavia (ICTY) (Prosecutor v. Duško Tadic case) to decide affirmatively on the attribution of a particular conduct to a State the level of control of that State over the conduct in question must be assessed.

The abovementioned courts advanced several tests to benchmark the sufficient level of control exercised by a State to invoke its international responsibility, in particular, effective control  applied by the ICJ and overall control test applied by the ICTY, respectively.

 

Effective control test

In determining the question of attribution, the ICJ has consistently relied on its own effective control test as enunciated in the Nicaragua case (Nicaragua v. The USA, 1984). Here, the ICJ distinguished between two classes of individuals without the status of de jure organs of a State. Firstly, these are individuals totally dependent on the foreign State that were paid, equipped, generally supported by the foreign State. Secondly, these are individuals that retained a degree of independence of the foreign State that paid, financed and equipped them (contras). The Court found that the actions of totally dependent individuals were attributed to the USA. With regard to contras that committed military actions involving the use of military force against the territorial sovereignty and political independence of Nicaragua, the ICJ found that the USA is responsible as well as a result of its “training, arming, equipping, financing, supplying or otherwise encouraging, supporting and aiding” the contra forces as it follows from the violation by the USA of principle of non-interference in the internal affairs of other states and the obligation not to use force in breach of the customary rule of international law corresponding to Article 2(4) of the UN Charter.

Hence, according to the Nicaragua test, a State exercises effective control over military actions when it finances, organizes, trains, supplies, and equips persons conducting them, as well as selects military targets and plans the whole military operation. In other words, presence of the military units is not necessary. A State only needs to be involved in the financing, organization etc. of a group of people within the territory of another State.

 

Overall control test

The second test for imputing international responsibility of a State concurrent to the one used by the Court in the Nicaragua case was advanced by the ICTY in the Tadic case. It is a so-called overall control test. The criterion for this control can be achieved when a foreign State has role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Moreover, as it was found by the ICTY, this test is applicable to matters of State responsibility.

Despite the fact that the Russian militaries blocking Ukrainian military bases, airports and governmental buildings are without special identification marks, there is much evidence that in deed these militaries are from Russia. Moreover, the fact that Russian troops as well as the Russian armored vehicles are at the territory of Ukraine has been recognized by the Ministry for Foreign Affairs of the Russian Federation.[1] In addition, the Russian government recognizes that there are much self-defense units of Crimea. And having a lot of similarities with the Russian troops, there are no doubts that they are organized, financed and supported by the pro-Russian forces and the government of Russia.[2] Taking into account all the abovementioned facts, all the activities of the Russian troops as well as of the self-defense units are attributable to the Russian Federation.

 

What international obligations did Russia violate?

Russia violated the jus cogens principle of non-use or threat to use force against territorial integrity and political independence of another State. In particular, under Article 2(4) of the United Nations Charter, States shall refrain from the threat or use of force against another State. Territorial integrity denotes the inviolability of a State’s physical territory and the prohibition of forcible trespassing of any kind. One may argue that Russia did not violate this principle as there was no armed attack by Russia against Ukraine, however, it shall be noted that the transfer of one State’s armed forces into another State in significant numbers without consent almost certainly falls within the prohibition under Article 2(4) of the Charter. Taking into account the facts that were affirmed by the Security Council Member States on March 3, 2014, it is Ukraine that has all grounds to lawfully use force against Russia as a lawful self-defense.

 

UN Security Council considers the matter

 The UN Security Council meeting to discuss Ukraine

It is a fact that Russian military forces have taken over Ukrainian border posts. It is a fact that Russia has taken over the ferry terminal in Kerch. It is a fact that Russian ships are moving in and around Sevastapol. It is a fact that Russian forces are blocking mobile telephone services in some areas. It is a fact that Russia has surrounded or taken over practically all Ukrainian military facilities in Crimea. It is a fact that today Russian jets entered Ukrainian airspace. It is also a fact that independent journalists continue to report that there is no evidence of violence against Russian or pro-Russian communities. Russian military action is not a human rights protection mission. It is a violation of international law and a violation of the sovereignty and territorial integrity of the independent nation of Ukraine, and a breach of Russia’s Helsinki Commitments and its UN obligations”, told Samantha Power, U.S. Ambassador to the UN on March 3, 2014 during the meeting of the Security Council.[3]

Resort to armed force in international relations may be justified only in several circumstances envisaged in the UN Charter, in particular, in case of (1) individual /collective self-defense, (2) when the use of force is authorized by the  UN Security Council and (3) when there is a consent of a State to use force on its territory.

 

Self-defence

Under Article 51 of the UN Charter, a State may exercise the “inherent right” to self-defense only in response to an actual or imminent armed attack. Such a State should ensure that the undertaken measures are necessary and proportionate, and, as per the UN Charter, shall notify the UN Security Council of any such actions taken. Similarly to individual self-defense, collective self-defense may only be resorted to in response to an armed attack. Measures taken are considered necessary when there are no other reasonable ways to resolve the current crisis, and proportionate when only that amount of force that is necessary to put forth an effective defense may be employed. As no armed attack has ever been launched from the territory of Ukraine against Russia, no grounds to resort to self-defense ever existed.

 

Security Council authorization under Chapter VII of the UN Charter

Under Article 39 of the UN Charter, the UN Security Council has the sole authority to authorize the use of force by States and IGOs. It must specify in a clear way the extent, nature, and objective of any sanctioned military operation. In exceptional cases, when the UN Security Council fails to exercise its primary responsibility for the maintenance of the international peace and security because of lack of unanimity of its permanent members, the UN General Assembly can make appropriate recommendations to resolve it. Here, the use of force was not authorized by the UN Security Council as well as  no appropriate recommendations were made by the General Assembly.

 

Consent of a State

Russia claims that the legitimate President of Ukraine requested the Russian Federation to introduce troops into Crimea. In his interview dated March 03, 2014, Mr.Putin claimed that Yanukovych as a legitimate President of Ukraine, requested him to use the Russian military troops to protect life and freedom of the citizens of Ukraine. However, this statement has no legal grounds. Firstly, under the Constitution of Ukraine, only the Parliament of Ukraine is authorized to give consent to introduce troops of a foreign State to Ukraine, not the President. Secondly, Yanukovych was resigned by the Ukrainian parliament. Thought the legality of his resignation may be doubtful, it is, in any event, within the internal affairs of Ukraine and Russia has no right to interfere into internal affairs of any State, and Ukraine is not an exception. Moreover, taking into account that in international law there is no obligation for a State to recognize neither a new State, nor a new government, it does not matter at all, if Kremlin recognizes the new Ukrainian government and considers it legitimate or not. In addition, we also should not forget that (1) Yanukovych’s government lost effective control over events in Ukraine; (2) he is accused of crimes against humanity and is a person under investigation; (3) his current place of residence and status are unknown.

 

Protection of nationals abroad

Moscow also justifies all the activities in Crimea by the need to protect the citizens of Russia there. In international law there is a concept of “defense of the nationals” abroad. Pursuant to this concept, a State may enter another State without consent in order to protect its nationals against an imminent threat, at least where the territorial State is unwilling or unable to protect those nationals itself. In international law this doctrine is also known as a “responsibility to protect” (R2P). Under R2P doctrine, an international community has a “responsibility… to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”.

Generally, this doctrine is based on the following principles. Firstly, the primary responsibility for the protection of the population abroad lies with the State on which territory this population is situated. Only when a government of this State is unable or unwilling to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing, the international community has a responsibility to take action. Secondly, the use of force is a measure of last resort meaning that the international community must apply a range of diplomatic, humanitarian and other peaceful measures. And only when these measures have no effects in question, the international community has a responsibility to act. And lastly, this use of force may be recognized as legal once it is purported to halt or advert genocide, war crimes, crimes against humanity or ethnic cleansing.

The justification to use force to protect the nationals of Russia in Crimea is absurd. There is no record of any injury or death of any citizen of Russian or Russian military as a result of the internal conflict in Ukraine. Taking into account that Russia has issued Russian passports to 143,000 Ukrainians, making it much easier for Russia to point to sizable numbers of “Russian citizens” who might come under threat,[4] and the fact that international community does  not positively approve the “protection of nationals doctrine” as being lawful, the idea to deploy military troops seems to have no logic. Moreover, no war crimes, genocide and crimes against humanity are committed at the territory of Ukraine. And we should not forget that in any event the use of force is a measure of last resort and Russia has neither use, nor propose to use any other range of peaceful measures.


What currently is happening in Ukraine is a military intervention that is taking place in violation of the principles of international law, in particular, the principle of non-use or threat to use force against political independence and territorial integrity of another State, the principle of territorial integrity and inviolability of State borders, the principle of non-interference into internal affairs of another State and a number of other international instruments. These are things that are unacceptable for the 21st century. And today it is a high time for the international community of States to understand that imperial and ambitious plans of Kremlin shall be stopped. Today only international pressure and firm position of the EU and the USA can stop further escalation of the conflict in Ukraine.

  • “Hence, according to the Nicaragua test, a State exercises effective control over military actions when it finances, organizes, trains, supplies, and equips persons conducting them, as well as selects military targets and plans the whole military operation. ”

    You have misread the case. What the Court actually said is:

    “115. The Court has taken the view (paragraph 110 above) that United
    States participation, ***even if*** preponderant or decisive, in the financing,
    organizing, training, supplying and equipping of the contras, the selection
    of its military or paramilitary targets, and the planning of the whole of its
    operation, is still ***insufficient*** in itself, on the basis of the evidence in the
    possession of the Court, for the purpose of attributing to the United States
    the acts committed by the contras in the course of their military or
    paramilitary operations in Nicaragua. All the forms of United States
    participation mentioned above, and even the general control by the respondent
    State over a force with a high degree of dependency on it, would
    not in themselves mean, without further evidence, that the United States
    directed or enforced the perpetration of the acts contrary to human rights
    and humanitarian law alleged by the applicant State. Such acts could well
    be committed by members of the contras without the control of the United
    States. For this conduct to give rise to legal responsibility of the United
    States, it would in principle have to be proved that that State had effective
    control of the military or paramilitary operations in the course of which the
    alleged violations were committed.”

    In short, all of the things you mention are insufficient, inasmuch as the Court is concerned, for establishing that a party has effective control.

    • Anna

      Firstly, the effective control test was taken into consideration in this article as the ICJ for the first time ever provided a definition of what effective control means in terms of attribution of the particular conduct to the State.

      Secondly, please refer to para.116 of the same case.

      “[t]he Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras , but for its own conduct vis-a-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the complaints relating to alleged violations of humanitarian law by the contras , regarded by Nicaragua as imputable to the United States, but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras. The lawfulness or otherwise of such acts of the United States is a question different from the violations of humanitarian law of which the contras may or may not have been guilty. It is for this reason that the Court does not have to determine whether the violations of humanitarian law attributed to the contras were in fact committed by them. At the same time, the question whether the United States Government was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the contras is relevant to an assessment of the lawfulness of the action of the United States” (ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits) , Judgment of 27 June 1986, para.116).

      In other words, the Court held the USA should bear responsibility not for the actions of contras but for their own conduct regarding Nicaragua.

      Lastly, here is a point of view of Antonio Cassese on this case.

      “With regard to military actions and operations by contras involving the use of military force in Nicaragua against the territorial sovereignty and political independence of that state, the Court found that the US bore responsibility as a result of its ‘ training, arming, equipping, financing, supplying or otherwise encouraging, supporting and aiding ’ the contra forces. Such responsibility followed from the violation by the US of the obligation not to intervene in the affairs of other states as well as the obligation not to use force in breach of the customary rule of international law corresponding to Article 2(4) of the UN Charter”