Orwellian Rulings of the Russian Constitutional Court on the Donetsk, Kherson, Luhansk and Zaporizhzhia Provinces of Ukraine

With its historical denialism, Newspeak and propaganda, Russia’s aggression against Ukraine has given new life to George Orwell’s evocation of how political language can be used to obscure or misrepresent reality. Does the same hold true for legal language? On 30 September 2022, following the illegal pseudo-referenda organised by Russia in the occupied areas of the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine, President Putin attempted to illegally annex these provinces by signing four treaties with the Russian-installed governors. In accordance with the national legislation on the admission of a new subject to Russia (see here and here), the Russian Constitutional Court (hereinafter, the RCC) was requested to check the constitutionality of the treaties in question. On 2 October 2022, the RCC speedwise ruled that they were in line with the Russian Constitution. On 3-4 October 2022, the Federal Assembly ratified them. My blog post provides a brief analysis of the RCC’s reasoning, which was identical in all four rulings (see here, here, here and here).

Facts

At the outset, the RCC held that it must focus solely on questions of law rather than appraise the political expediency of treaty-making. Through the back door of ‘legal expediency’, it did, however, consider some factual circumstances that had led to the conclusion of the treaties under review. No special research was deemed necessary, as facts were believed to be ‘obvious and indisputable’ and ‘self-sufficient for a systematic understanding’ of the situation.

After a cursory mention of ‘arbitrary’ Soviet decisions of using ‘lands with the predominantly ethnic Russian population’ to create large parts of Ukraine, the RCC jumped to the 2014 ‘anti-constitutional coup in Kyiv’, which, judges argued, worsened the plight of ethnic Russians in Ukraine. According to the RCC, the Ukrainian authorities pursued a policy of ‘aggressive nationalism and anti-ethnic-Russian neo-Nazism’.

Did the RCC rectify the truth? The short answer is yes. Firstly, the Bolsheviks did not create Ukraine. Quite the contrary, they destroyed the Ukrainian National Republic. Neither under the Ukrainian census, nor under the last Soviet census, did ethnic Russians constitute the majority of the population in the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces. Secondly, the ousting of President Yanukovych is regarded as constitutional by many Ukrainian lawyers, including drafters of the Ukrainian Constitution. Their legal arguments are based inter alia on the protection of human rights, the rule of law and state sovereignty (see e.g. here and here). Thirdly, some of the world’s leading scholars on the Holocaust and World War II criticised the Kremlin’s equation of Ukraine with the Nazi regime as factually wrong. As a matter of law, Article 436¹ of the Ukrainian Criminal Code prohibits any production or distribution of Nazi symbols and propaganda of Nazi regimes. Finally, the nationalist political party Svoboda got 2.15 per cent of votes on the nationwide party list and therefore did not reach the electoral threshold in the latest parliamentary elections.

The RCC’s distortions of facts were enabled by its deliberate choice to limit the sources of information to opinions ‘repeatedly and publicly expressed’ by the parties to the treaties under review, i.e. (pro-)Russian goodthink. Positions of Ukraine and international organisations, notably the UN and the Council of Europe, were not examined at all.

Self-defence

When it comes to Russia’s full-scale invasion of Ukraine, the RCC referred to Ukraine’s Military Security Strategy and desire to join NATO as proofs of a planned attack on Donbas and thus a threat to the territorial integrity of Russia and the lives of Donbas residents and Russian citizens. Relying on the mutual assistance agreements between Russia and the Russian-installed governors of the occupied areas of the Donetsk and Luhansk provinces of Ukraine, the RCC emphasised that Russia had no choice but ‘to launch a pre-emptive special military operation, which, given the inevitability of the threat, actually also represents Russia’s exercise of its inalienable right to self-defence (Article 51 of the UN Charter)’.

The RCC, mesmerised by the Kremlin’s imperialist narratives, could not bear that Ukraine as a sovereign state is free to join any international organisation. The above-mentioned Military Security Strategy does not envisage any attacks on Russia. Rather, this document is about the protection of Ukraine’s territorial integrity within its internationally recognised borders.

By blackwhiting the right of Russia to individual and collective self-defence, the RCC turned international law on its head. It is, after all, Ukraine that has exercised the right to self-defence since 2014 when Russia began its aggression against the neighbouring state. Furthermore, the RCC’s reliance on pre-emptive self-defence put the finishing touches on the U-turn in Russian approaches to jus ad bellum: from dyed-in-the-wool conservatism to opportunistic permissiveness.

The confusion deepens over the judicial statement that Ukraine is ‘externally controlled by the collective West’. Did the RCC mean an effective control, overall control or other forms of control? A related question, which the RCC also failed to clarify, concerns the target against which President Putin launched the ‘special military operation’: was it Ukraine, an alliance of states or an understanding of freedom?

Self-determination à la russe

To justify the illegal pseudo-referenda, the RCC relied on the right to self-determination, as set forth in the UN Charter, the International Covenant on Civil and Political Rights and Resolution 2625 (XXV) of the UN General Assembly. At the same time, it completely disregarded other relevant instruments, such as Resolution ES-11/1 of the UN General Assembly, the Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border and the Memorandum on Security Assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons, all of which reaffirm Ukraine’s sovereignty, territorial integrity and state borders. Conceptually, the RCC did not spell out why the mysterious ‘people’ of the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine were proper right-holders of self-determination. The RCC also ignored that the right to self-determination shall be exercised without any external interference, as stipulated in Resolution 2625 (XXV) of the UN General Assembly. By way of comparison, in its 1995 ruling on Chechnya the RCC mentioned the right to self-determination, as set forth in this resolution, but prioritised the paragraph on territorial integrity. The RCC shot itself in the foot in 2022, as its interpretive doublethink may result in Russia’s fragmentation.

International Humanitarian Law

The RCC felt uneasy with the oldthink of international humanitarian law, making every effort to blur the lines between war and peace. It goes without saying that no examples of Russia’s atrocities were given. At the same time, the RCC referred, in general terms, to attacks by Ukraine on civilian objects and civilians. Crucially, this alleged misconduct was not labelled as alleged violations of international humanitarian law or alleged war crimes. In addition, Russia’s full-scale invasion of Ukraine was couched as a ‘special military operation’, warfare merely amounted to an ‘extraordinary situation’ and the occupation of Ukrainian territories was nothing but ‘liberation’. Speaking the language of empire, the RCC treated Ukraine as a colony rather than an equal adversary of Russia.

War is Peace

The RCC paternalistically noted that the Russian people believed in goodness and fairness and that Russia as a pravovoe gosudarstvo could not turn a blind eye to ethnic and linguistic discrimination and mass violations of the rights to life and health on territories ‘with which inhabitants the population of Russia has strong historical, cultural and human ties’. The conclusion of the treaties under review was, according to the RCC, ‘a necessary and the only available legal measure’ to put an end to ‘unlawful actions of external forces that cause death […] and injuries to citizens on these territories’ and in Russia and thus ‘to establish a peaceful life’, even if such a decision ‘would have to be accompanied by the use of forces and measures of a different kind’. In terms of constitutional law, judges relied on the ‘principle of maintaining confidence in actions of the state’ and the obligation of Russia—and a very high degree of discretion to choose ‘legal measures’—to protect the rights to life and health as supreme constitutional values. The RCC stressed that the treaties under review aimed to establish peace as the key condition for safeguarding these values and were not mechanisms for solving international (territorial) disputes. Hence, the RCC found no violations of Article 1(1) of the UN Charter, Article 2(4) of the UN Charter, as clarified in Resolution 2625 (XXV) of the UN General Assembly, or the Russian constitutional provision on the peaceful co-existence of states, the maintenance of international peace and the non-interference in the internal affairs of states. Put differently, war is peace. By way of comparison, in its 1995 ruling on Chechnya the RCC highlighted that state integrity was a guarantee of the constitutional rights of all citizens.

Allegations of Genocide

To a great extent, the RCC duckspeaked the Kremlin’s propaganda but omitted some of its notorious elements, particularly allegations of genocide against Donbas residents, which was a pretext for the ‘special military operation’. This omission seems to be a reaction to the application filed with the International Court of Justice, in which Ukraine instituted proceedings against Russia on the interpretation, application and fulfilment of the Convention on the Prevention and Punishment of the Crime of Genocide. Ukraine claimed inter alia that the above-mentioned allegations were false. On 3 October 2022, shortly after the RCC’s rulings, Russia submitted its preliminary objections to the jurisdiction of the principal judicial organ of the UN, arguing that the case had nothing to do with the Convention.

A Dissent?

The RCC shall consist of eleven judges, but only ten signed the rulings: Chairman Zorkin, Judge Bushev, Judge Gadzhiev, Judge Kazantsev, Judge Knyazev, Judge Kokotov, Judge Krasavchikova, Judge Mavrin, Judge Melnikov and Judge Zharkova. On 27 September 2022, Judge Aranovskiy, known for crimethink in his separate opinions, stepped down without any explanation. Given that judges of the RCC are no longer allowed to publish or publicly rely on their separate opinions, this resignation may have been a form of expressing disagreement with the anticipated rulings. Nevertheless, it should be recalled that Judge Aranovskiy did not attach a dissenting opinion to the Crimean ruling in 2014, when the publication of such opinions was permitted.

Conclusions

The RCC’s reasoning is a farce. Judges cynically manipulated constitutional and international law and steered clear of any unwanted (assessments of) facts. More specifically, the RCC repeated and developed the Kremlin’s preposterous delusions about self-defence and self-determination and fallacious versions of the Ukrainian past and present, in addition to cloaking the attempted illegal annexation in the rhetoric of peace and human rights. Imperial thinking, deeply embedded in the judicial reasoning, left no room for the terminology of international humanitarian law. Having lost its judicial independence, the RCC became a part of the collective Putin, for whom ignorance is strength. If judges were afraid of speaking truth to power, they could have resigned wordlessly, as the conduct of Konstantin Aranovskiy suggested. Instead, they willingly turned themselves into instruments of authoritarianism and lies under the guise of legal interpretation. Last but not least, the RCC was conspicuously silent about any allegations of genocide against Donbas residents, which signals that Russian lawyers started to drop this no longer convenient casus belli into the memory hole, as there are worrying prospects that Russia would otherwise lose the Allegations of Genocide case in The Hague.