The Fog of Law: Crimean Annexation and Lessons on the Boundaries of Self-Defense

Zhandos Kuderin, Associate Editor, Michigan Journal of International Law

After the former President of Ukraine, Viktor Yanukovich, made a decision not to sign an association deal with the European Union in favor of a deal with Russia, the protests began in the capital, Kiev. The protests and the ensuing movement, known as “Euromaidan”, eventually succeeded in ousting the incumbent President after a Parliamentary vote.[i]  The events led to some dramatic events involving the region of Crimea. Russia refused to recognize the legitimacy of the new government in Ukraine and sent troops to Crimea. The Crimean regional parliament held a referendum on whether to join Russia.[ii] The vote was overwhelmingly in favor of such a move, even if there are still concerns about its fairness.[iii] Meanwhile, on March 18, 2014, President Vladimir Putin signed a treaty of absorption of the Republic of Crimea and Sevastopol into the Russian Federation.[iv] Within two months since the invasion of Crimea, Russia annexed Crimea.   It is clear that Russia’s actions and involvement in the events that tore Ukraine apart raise important questions about international law.[v] One of the less discussed questions is whether Ukraine had a legitimate recourse to self-defense against Russia. There is rarely a straightforward answer in international law, but with self-defense, the fog of law gets so much thicker.   The starting point is Article 2(4) of the U.N. Charter, which prohibits threat or use of force against the territorial integrity of a State.[vi] Article 51 preserves the inherent right of self-defense against an armed attack, until the Security Council takes measures to “maintain international peace and security.”[vii] Therefore, for a claim of legal self-defense, a State must have suffered an armed attack. There is no exact definition of the concept, but the ICJ stated that it must reach a certain gravity of scale.[viii] An armed attack is the most grave form of the use of force, compared to less grave forms.[ix] The ICJ explicitly has held that assistance in the form of weapons or logistical support does not reach the requisite gravity of scale.[x] The court further noted that organizing or encouraging the organization of irregular forces or armed bands, or organizing, instigating, assisting or supporting civil strife by a State on the territory of another State, do not reach the gravity of scale to constitute an armed attack.[xi]   What to make of Crimea? Russia had troops on the ground. President Putin acknowledged presence of the Russian troops in Crimea prior to the annexation referendum.[xii] Russia’s actions quite clearly represent an occupation of the territory of another State.  During occupations of South Korea in 1950 and of Kuwait in 1990, the international community clearly viewed them as armed attacks, as evidenced by the Security Council resolutions.[xiii] Nevertheless, no shots were fired in Crimea and there is no evidence of any violence by the Russian troops. Is the unauthorized presence of foreign troops in one’s territory enough to invoke the right to self-defense? We can look again at the US activities in Nicaragua during the 1980s that led to the ICJ case between the States. The ICJ court ruled that the U.S. assistance to Nicaraguan contras, including financial, logistical support and training did not constitute an armed attack.[xiv] Russia’s actions are different for several reasons. Firstly, as stated above, Russia had troops on the ground.[xv] Moreover, Russia has occupied the entire region of a sovereign State in order to facilitate that region’s annexation to Russia. If one rejects the argument that Russia’s actions constituted an armed attack, then we move into a dangerous territory in terms of what purpose the international law serves. Would any of the powerful States hesitate to call such actions as an armed attack? What if Russia sends its troops to Alaska to facilitate Alaska’s return into Russia’s fold? It is a direction of foreign policy that, unfortunately, reverts us to the realist view of international law, where the powerful obey the law when they want to and bend the rules when they need to.[xvi] Regardless, it is quite clear that Russia’s actions in Crimea show us the imprecise boundaries of what an armed attack is.   There is another pertinent element of self-defense: necessity.[xvii] As understood today, necessity means that a State must exhaust all non-forcible measures before resorting to using force as self-defense.[xviii] Putting it simply, self-defense must be a measure of last resort under the circumstances. The necessity element also requires that the armed attack is still ongoing at the time that the self-defense measures are taken,[xix] i.e., it cannot be retaliatory. What necessity means is flexible and context-specific. However, when Russian troops moved into Crimea, at least one scholar argued that self-defense was not necessary and that diplomatic measures were available, including a possibility of a brokered peace by the US.[xx] However, in the 7 months since the events, none of diplomatic measures were successful. The UN Security Council failed to even condemn the annexation referendum due to Russia’s veto power,[xxi] and Crimea was eventually annexed by Russia.   The question remains of how one should define necessity when a State is faced with an undesirable status quo. Concluding that Ukraine’s situation does not involve necessity leads us again to the issue of questionable foreign policy that powerful states might employ with respect to the weaker ones. But we are also stripping injured states of the few weapons they hold: legality and legitimacy. As weak as most injured states might seem in the face of military might, the legality and legitimacy of self-defense can lend the injured states at least some measure of self-help. It also sends a positive message to the states that international law recognizes and supports their struggle. However, if one views the situation in Ukraine as satisfying the “necessity” requirement, that raises questions about other contested territories, such as Transnistria, the long disputed former part of Moldova which became a breakaway state and has been under the protection of Russia for nearly 20 years. Could Moldova successfully argue that it has a legitimate claim of self-defense against Russia, even though the territory has been de facto independent for such a long time? The preferable answer seems no. The international community may not want States to take such matters into their own hand because of the possibility for major repercussion, especially in the modern interconnected world of international trade. Resolution of such difficult issues should involve the larger international community.   That leads us to another important issue lost in discussions of Crimea. Article 51 of the U.N. Charter provides a clear and ultimate authority to the Security Council to take actions to restore international peace and security. The language is clear that States are precluded from further self-help once Security Council has taken measures under its control.[xxii] As stated above, Russia prevented a resolution just condemning the Crimean referendum. It is clear that no action will be taken by the Security Council. A common sense answer suggests that a State may continue to act in self-defense until the Security Council has taken effective measures to address the situation.[xxiii] Nevertheless, that raises additional questions about what are effective measures if a member of the Security Council has a direct interest in the issue. Undoubtedly, there have been too many instances where the Security Council actions were marred by political interests of its Members,[xxiv] but the Crimean situation seems to present a different beast: a clear-cut geopolitical interest. Any action by the Security Council would be compromised by Russian interests. Thus, even if the Security Council does take measures in relation to Crimea, can Ukraine refuse to abide by them and continue exercising self-defense? The Charter suggests that it would be a violation of international law and Ukraine might get labeled as an aggressor and subject to sanctions.[xxv] That does not seem a satisfying answer. Even if the Security Council action is in the best interests of international peace and security, but not of an injured state, that only augments concerns about the realist foreign policy of powerful states. Such an outcome also lends legitimacy to aggressor’s actions, as the aggressor state would be the one cooperating with the Security Council while the injured state ends up vilified. The way the Security Council is constructed, it was perhaps inevitable that such a situation would eventually arise. It comes at the expense of Ukraine’s self-defense and also of the collective security interest in international peace.   Crimean annexation was one of the biggest geopolitical events of the last decade. It sent shockwaves through the international community and signaled a dangerous reversion to a realist thinking in international law. It also provides us with useful lessons on the limitations of the current thinking on self-defense. In the context of Crimea, this is largely an academic exercise. However, with the signals that Russia might take similar actions with respect to Estonia, Kazakhstan and other countries it wishes to keep in line,[xxvi] the significance of the analysis rises. There is need for clarification and expansion of the boundaries of self-defense to allow those countries an extra protection of self-help. Otherwise, smaller, more vulnerable states may face difficult situations upon invasion by other nations.