The most dramatic moment at Monday’s Security Council meeting on Ukraine came when the Russian representative, Vitaly Churkin, produced a letter, purportedly from ousted Ukrainian President Victor Yanukovych, inviting Russian military intervention. This seemed to indicate a shift in Russia’s legal justification for its actions in Ukraine. The resolution adopted by the Russian legislature authorizing the use of force referred to the alleged threat to the personnel stationed at the existing Russian bases in Ukraine, while at the previous Security Council meeting on 1 March, Mr Churkin appealed primarily to a request from government of Crimea. It appears that Russia has now decided to rely much more heavily on Yanukovych’s consent. Not only did Mr Churkin emphasise it at the Security Council; President Putin, in his press conference on Tuesday, laid great stress on it:
“[W]e have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”
This shift, which has already attracted some attention in the international law blogosphere, is an understandable move. For the reasons explained by Daniel Wisehart in his post on Tuesday, both self-defence and the invitation of the Crimean government are patently inadequate as legal justifications for Russia’s use of force. There is no evidence of an armed attack on the Russian bases in the Crimea, nor can it be seriously maintained that the consent of the government of a sub‑national unit within a State can legalise military intervention, especially when the intervention is opposed by the federal government.
In contrast, it is much easier for Russia to use Yanukovych’s consent to muddy the waters. For it has been argued, with at least some plausibility, that the international community has accepted the legality of foreign military intervention in support of a ‘legitimate’ national government, despite the fact that it has lost effective control of the state. The use of force by ECOWAS in Liberia in 1990, and in Sierra Leone in 1997, could be given as examples. In Liberia, the incumbent President, Samuel Doe, dispatched a letter to ECOWAS requesting assistance at a time when his forces controlled only a small part of the capital city, Monrovia. And in Sierra Leone, after being overthrown by a military coup, the democratically elected President Ahmad Tejan Kabbah had already fled the country (just as Yanukovych has done) before he requested ECOWAS assistance to restore him to power. Despite these facts, in both cases military action met with support rather than censure from the international community.
However, this may well be a wrong reading of these precedents. It has been contended, by authors such as Marco Gestri and Olivier Corten, that in neither case did ECOWAS in fact rely on the consent of the ineffective government. In the case of Liberia, it seems that neither ECOWAS nor the participants in the later Security Council debate referred to Doe’s invitation. In Sierra Leone, ECOMOG peacekeeping forces were already present at the time of the coup; the use of force appears to have been justified as self-defence against attacks on these troops by the pro-coup forces, not on the basis of the deposed President’s consent. So it is doubtful whether international law in fact allows the use of force at the request of a deposed government, even if it is democratically or constitutionally legitimate.
Of course, even if this is allowed in international law, it is unclear whether Yanukovych can claim the mantle of democratic or constitutional legitimacy. Although he was democratically elected President in 2010, on 22 February this year, the equally democratically elected Parliament voted to remove him, 328 votes to 0. However, the Parliament has 449 members in total, and thus this vote fell short of the three-quarters majority which is apparently required by the Ukrainian constitution. Yanukovych – and Putin – assert that this action was unconstitutional, and hence an illegal coup. I agree with Daniel that it would be undesirable for the legality of military intervention to depend on potentially obscure points of domestic constitutional law.
Another basis on which Russia might justify its continuing recognition of Yanukovych, and thus the legality of its response to his request for the use of Russian forces, is to argue that his ouster was brought about by illegal intervention in Ukraine’s internal affairs by Western powers. At the Security Council meeting on 1 March, Mr Churkin asserted that such intervention had taken place:
“Why do those street demonstrations [against Yanukovych] need to be encouraged from abroad by members of the European Union? Why did the representatives of several countries of the European Union need to appear at these meetings, which were ignited by protests against a decision taken by the Ukrainian leadership? Why did some officials need to talk about stirring up the public and opposition leaders? Why did there have to be such crude interventions in the internal affairs of a sovereign State?”
There are precedents in which governments brought to power by foreign intervention have been subject to widespread non-recognition: notably, the ‘People’s Republic of Kampuchea’ government established in Cambodia following Vietnamese intervention in 1978–79. However, that regime was brought to power by the full-scale use of force, not by the less grave forms of intervention referred to in the Russian representative’s speech. Further, it appears clear that it was domestic opposition, not EU meddling, which was responsible for Yanukovych’s downfall. So even accepting, for the sake of argument, that the EU or EU member states breached the prohibition on intervention in the internal affairs of Ukraine, this does not justify Russia’s continuing recognition of Yanukovych, and certainly does not legalize its military intervention on his request.
President Putin stated, at his press conference, that Yanukovych ‘has no political future,’ while insisting that he remains the legal and legitimate President of Ukraine. The political embarrassment of association with a failed and discredited leader was presumably what delayed Russia’s decision to rely whole-heartedly on his consent. It has now put aside these concerns in order to make use of its best legal argument – although one which still fails to convince.