The European continent is currently witnessing the most severe security crises since the tragic events surrounding the dissolution of the Republic of Yugoslavia. The post will discuss the legal bases for Russia’s use of force on the Crimean peninsula.
On 1 March 2013 the President of the Russian Federation submitted an appeal to the Council of the Russian Federation for authorization to use armed force ‘[i]n connection with the extraordinary situation that has developed in Ukraine and the threat to citizens of the Russian Federation, our compatriots, the personnel of the military contingent of the Russian Federation Armed Forces deployed on the territory of Ukraine (Autonomous Republic of Crimea)’. The same day the Council granted authorization to the Russian President to deploy forces in the Ukraine. I will discuss two possibilities that could be invoked to justify Russian deployment of force despite of the general prohibition to use force under Article 2 (4) of the Charter: (i) self defence and (ii) intervention by invitation.
1. Self-defense according to Article 51 of the Charter
One of the recognized exceptions to the prohibition of the use of force is the Art. 51 of the Charter, allowing a State to use force in response to an armed attack.
The first question that has to be assessed is whether an armed attack has occurred against Russia. There has been no deployment of Ukrainian troops whatsoever on Russian territory. However, the Russian Federation seems to seek to legitimize its authorization of force on the concept of self-defense, invoking that Russian military personnel and Russian citizens on the Crimea were threatened. The legal question here is whether a state may refer to the concept of self-defense in order to protect its citizens and military personnel outside its proper territory.
The infamous UNGA Resolution 3314 on the Definition of Aggression shows that the concept of armed attack is not exclusively linked to the territory of the attacked State. Art. 1(d) of UNGA Res. 3314 reveals that a state can be object of an armed attack occurring outside its proper territory – i.e. an ‘extra-territorial armed attack’, including as an ‘act of aggression’ “[a]n attack by the armed forces of a State on land, sea or air forces, or marine and air fleets of another State”. N.B. that this provisio only speaks of the various types of forces of another State – i.e. the attacked State – that have to be concerned. As the acts mentioned in Art. 1 (a) and (b) UNGA Res. 3314 clearly require to occur ‘against the territory of another State’, Art, (1) (d) e contrario applies also extra-territorially. However, such acts must trigger the threshold of an armed attack; as Nolte and Randelzhofer rightly point out in their Commentary on Art. 51, it has to be established ‘[…] that the use of force is not insignificant’ (Nolte/Randelzhofer, in: Simma (ed.), The Charter of the United Nations A Commentary, 3rd Edition, Art. 51, MN25). The ICJ has noted in the Oil Platform case that the mining of a ship might already trigger this threshold (ICJ Oil Platforms (Iran v. United States) Judgment of 6. November 2003, para. 72).
Russia as the State invoking the right of self-defense bears the burden of proof here – as was rightly stated in the Oil Platform Case (Ibid., para. 57)- to show that Ukrainian acts against Russian military personnel are of such a gravity to constitute an ‘armed attack’. Although there have been statements of Ukrainian officials warning Russian troops in Crimea to remain in the territories where they are allowed to operate (http://en.itar-tass.com/world/721161), there are currently no reports whatsoever that the Russian fleet stationed in Crimea had been the object violent acts before the President of the Russian Federation was authorized to deploy force in the Ukraine. An armed attack against Russian military personnel in Crimea did not occur and cannot be invoked in order to justify the Russian resort to armed force.
Russia seems to be more concerned, however, about the safety of its citizens in Crimea. It is disputed among States and academics whether there exists a right to invoke the concept of an armed attack regarding the protection of nationals residing extra-territorially. Sir Humphrey Waldock in his infamous 1952 General Course at The Hague on ‘The Regulation of the Use of Force by Individual States in International Law’ (81 RdC 1952, 455) claimed that States had a right to use force to protect their citizens abroad under three conditions: ‘There must be (1) an imminent threat of injury to nationals, (2) a failure or an inability on the part of the territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury’ (ibid.,p. 467).
Randelzhofer and Nolte deny the existence of such a right since the security of the attacked state is not threatened when its citizens are attacked outside its borders and because such a right would have the potential of ‘blurring […] any contours of the right of self-defense (see e.g. for a similar view Crawford, Brownlie’s Principles of Public International Law, 8th Edition 2012, p. 754). Dinstein, however, shares the view that nationals abroad may form the object of an armed attack in the sense of Article 51 of the Charter, ‘if the attack against [such] nationals is mounted primarily because of their link of nationality [to the attacked state]’ (Dinstein, War Aggression and Self-Defence, 5th Edition 2011 at 218) and refers to an impressive amount of State practice supporting his view (Ibid at 257 et seq.) ranging from the Israeli liberation of hostages in Uganda in 1976 to the American Invasion in Panama 1989 and the Russian invasion in Georgia in 2008. Only the last case will be discussed here, as it seems most relevant for the current situation. Gray argues that in the events surrounding the Russian intervention in Georgia to protect its nationals ‘[…] western States did not oppose this doctrine as a matter of principleֹ’ but ‘ challenged Russia’s motives and the proportionality of the Action’ (Christine Gray, “The Use of Force and the International Legal Order”, in: Malcom D. Evans (ed.), International Law, Third Edition, 2010, 615 at 627).
A blog post is certainly not the right place to resolve this complicated issue. However, even when arguendo that such a right would exist de lege lata, it would seem very difficult to justify Russia’s current action. Although there are divergent views between Western and Russian media on what is currently happening to Russian nationals in Crimea there seem to be no reports that would clearly establish that Russian nationals in Crimea or other parts of the Ukraine have been threatened. The Russian federation only generally asserts ‘a real threat to the lives and health of Russian citizens’ but fails to establish in concreto how Russian citizens are endangered by the governmental transition that has occurred in the Ukraine on 23. February 2014. Therefore, in my opinion, the Russian authorization of force cannot be justified by the concept of self-defense under Article 51 of the Charter.
Even when one does not concur with this conclusion, Russian actions would have to comply with the requirements of necessity and proportionality in order to be lawful under Article 51 of the Charter. One fails to understand, how actions like the surrounding of Ukrainian military bases in Crimea, should contribute protecting Russian nationals, given that there are no claims that they have been threatened by Ukrainian forces .
2. Intervention upon Invitation
Another, albeit, unwritten exception to the general prohibition of the Use of Force is the case of an ‘intervention upon invitation’. Russia does now seem to base its actions on the consent of Ukrainian authorities rather than on the protection of Russian nationals. Mr. Yanukovich who is currently in Russia still considers himself as the ‘lawful head of state of the Ukraine’ and could be involved to legitimize Russian action. Furthermore, the new Prime Minister of the autonomous region of Crimea has issued a statement requesting Russian assistance in order to restore peace and calm (translated by google). I will therefore discuss whether a. Mr. Yanukovich or b. the Prime Minister of Crimea could validly invite Russia to intervene in the Ukraine and thereby justify Russian use of force. Assessing the legality of an intervention upon invitation is complicated, as the State practice surrounding the issue is partly unclear. However, despite all this uncertainty Conclusion 5 of UNGA Committee on the Problem of Hungary should be borne in mind:
“ The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government.” (GAOR: ELEVENTH SESSION SUPPLEMENT No. 18 (A/3592 at p. 79).
The ICJ has in the Nicaragua case also pointed out the importance of governmental consent to intervention by noting:
“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance.” (ICJ Nicaragua, op.cit. , para. 246)
The question at hand is whether Mr. Yanukovich still represents the Ukrainian government, given that the Ukrainian parliament adopted a resolution on 22. February 2014 requesting Mr. Yanukovich to resign and elected Mr. Turchinov as his successor the next day. I do not want to take a stance whether it was legal under Ukrainian constitutional law or the interim agreement of 21. February 2014 () that the former opposition had previously concluded with Mr. Yanukovich, while he was still in power.
I think one might simply deny the validity of Mr. Yanukovich’s consent for the lack of effective control of the situation in the Ukraine. Effective authority would seem to be of primordial importance in determining who is entitled to validly speak out an invitation (cf. in that regard Malcom M. Shaw, International Law 6th Edition, 2008, p. 1151). This line of argumentation even holds true if one considers, and this is not my personal interpretation of the events, that Mr. Yanukovich has been overthrown by an illegal Coup d’État. In times of turmoil and upheaval with competing claims for legitimacy, effective control would seem the sole factor that can be determined and verified objectively. Predictability is crucial for the legality of an intervention upon invitation as ‘ no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government’ (GAOR, op. cit.). Support to an overthrown legitimate government could solely be given multilaterally by the UNSC acting under Chapter VII of the Charter (Olivier Corten, The Law against War, 2010, pp. 284 et seq.).
The case is even clearer for the Prime Minister of Crimea. It is not disputed by all actors – including the Russian Federation – that the Crimea is part of the Ukraine (cf. in that regard statement by the UNSC President of 28 February whereby ‘[s]upport was expressed for the unity, territorial integrity and sovereignty of Ukraine’. The author of an invitation to intervene must be the highest state organ available (Nolte, Intervention by invitation, in: R. Wolfrum, MPEPIL, at para. 23). One cannot see how the head of a federal entity of a State could issue such a declaration. A valid invitation would have to emanate from the central government. Thus Russia cannot claim that use of force in Crimea can be justified by the invitation of the local government.
Therefore, the Russian use of force in Crimea is illegal under international law. One might add that the concept of a Humanitarian Intervention, whose recognition by positive International Law remains doubtful, would not change this result. Russia has so far not invoked this concept. As this State has opposed the validity of humanitarian interventions on numerous occasions, it seems doubtful that it will do so in the future. However, even if one accepts the validity of this doctrine under international law, a humanitarian intervention would not be applicable here. It is only in situations where a civil population is subjected to crimes against humanity or genocide that a third state might be entitled to act on the behalf of the civilian population. There is no evidence that such perilous acts have been carried out against the Russian speaking population in Crimea or elsewhere on the Ukrainian territory. It rather seems the case that by supporting the Russian speaking population in Crimea, Russia is supporting the ethnification of a political dispute in the Ukraine