Russia’s Crimea Caper: One More Nail in the Non-Intervention Coffin

Both Russia and those opposing its intervention in Crimea are making claims regarding the legality of its acts. Russia is asserting the right to use force in Crimea and, if necessary, in eastern Ukraine. The U.S., Canada, and European states counter that doing so is an act of aggression. Indeed, in Foreign Minister John Baird’s opinion, this aggression was comparable to Hitler’s seizure of the Sudetenland from Czechoslovakia in 1938.

While that comparison may be far-fetched, there is little doubt that the Russian intervention (actual and threatened) is a breach of international law. The threat or use of force against “the political independence or territorial integrity” of any state is an act of aggression prohibited under the UN Charter. States are permitted to use force against other states only in self-defense; there is no threat to Russia, and its actions are therefore illegal

Sadly, however, these largely specious arguments are available to Russia, and will find sympathy elsewhere, precisely because they are familiar.

Yet the clarity of the original rule has been muddled, and the non-intervention norm steadily eroded over the past several decades. Some responsibility for that fact lies also with those who now condemn Russia.

Russia’s veto at the UN means it can shield itself from Security Council condemnation; and its military might and economic integration (with European economies in particular) likely rule out any effective response. Other states may have little choice other than to accept de facto the Russian intervention.

But beyond its negative and largely destabilizing impact in Crimea and the Ukraine, the intervention can be seen as one more example of a global order that is shifting to accommodate (albeit not yet formally) the non-UN authorized use of force by the great powers. In recent decades there have been several such instances, justified on various grounds—many of which Russia now relies on in defense of its intervention.

Of course, the classic self-defense argument itself was pushed beyond reason in the U.S. justification for its invasion of Iraq, which broadened the notion of anticipatory self-defense in ways that could allow any state to attack another state deemed hostile. But where self-defense is not at issue, as in the Crimean case, justifications for the use of force rely on one of two arguments: first, a denial that any aggression has occurred, and second, humanitarian motives.

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The first group of arguments might contend that the territory in question isn’t ‘foreign’ (just a lost bit of the mother/father land), or that the legality for the presence of foreign troops is provided by an ‘invitation’ from the legitimate authorities.

Irredentist claims for territory underlay Hitler’s reoccupation of the Saarland and seizure of the Sudetenland; more recently, Saddam Hussein claimed that Kuwait was a lost Iraqi province to justify his 1990 invasion. Russia has not yet justified its action based on Crimea’s historic attachment to Russia (perhaps conscious of how discredited irredentist arguments appear). It has, however, argued that it is responding to an invitation both from (now former) President Yanukovych, whom Russia claims is still the constitutional head of state, and by the Crimean Parliament, which enjoys substantial devolved authority in Ukraine.

Here Russia is on familiar and perhaps firmer ground. The U.S. relied on an invitation as one reason justifying its invasion of Grenada in 1983; and a Lebanese invitation was cited as justification for the U.S., French and Italian presence in Beirut in 1982-84. The U.S. and UK presence in Iraq from 2003 until elections for an Iraqi government in 2005 was justified on grounds of the consent of the local provisional authority (which they appointed). As well, although the ISAF (NATO forces) presence in Afghanistan was mandated by the UN, the U.S. relies on its agreement with the Afghan government for much of its offensive warfare against the Taliban. France relied on the consent or request of local rulers, many with dubious democratic credentials, to justify several interventions in west and central Africa.

The legitimacy of the ‘invitations’ in these cases might be greater than that relied on by Russia. Still, the salient point is that a claim of legitimacy in all these cases was or is contested locally, and is itself a source of conflict.

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The second line of argument has two strands, both grounded in supposedly ‘humanitarian’ concern. President Putin spoke of his worries for the safety of Russians, presumably meaning both ethnic Russians as well as Russian citizens in Ukraine (including the many thousands of Russian military stationed in Crimea under an agreement with the Ukraine). Concerns to protect one’s nationals were asserted by the U.S. in Grenada in 1983 and Panama in 1989, and by the French in Africa on several occasions. Though Putin’s claim of a threat to Russian nationals is doubtful, so too were U.S. and French claims in previous cases.

The second strand to the humanitarian argument is the more familiar claim of a right to intervene to halt real or threatened mass atrocities (now termed the ‘responsibility to protect’, or R2P). The UN has properly authorized such action in a few cases, but NATO controversially took action in Kosovo in 1999 without such authorization, as did Russia in South Ossetia/Georgia in 2008. The U.S., France and (initially) Britain also threatened air strikes on Syria on such grounds in 2013. Russia and other states claim that in 2011 NATO exceeded its UN mandate in Libya, which was granted to protect civilians but (they argue) was used to aid the Libyan opposition depose Qaddafi.  Russia has not yet explicitly invoked R2P, but there can be little doubt it would do so if it carries out threatened action in east Ukraine.

Placing the Russian action in this wider context is not intended to justify its act of aggression, which must be condemned.  Sadly, however, these largely specious arguments are available to Russia, and will find sympathy elsewhere, precisely because they are familiar.

The Chinese have reacted ambiguously to the Russian intervention, neither fully endorsing nor condemning it. In light of the Chinese government’s announcement of yet another large increase in defense spending this week, one imagines that they are making careful notes.

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