UKRAINE: Russia military intervention underway in Crimea, in flagrant violation of international law

Developing

Background

“Ukraine: Russian military interventiom underway or likely, as Putin follows Hitler’s playbook in the Crimea,” The Trenchant Observer, February 27, 2014.

“U.S. should revoke MFN status and impose sanctions on Putin and Moscow if Russia intervenes in Ukraine,” The Trenchant Observer, February 25, 2014.

“Russia’s Prime Minister Medvedev claims direct threat to Russian citizens, laying basis for Russian military intervention in Ukraine,” The Trenchant Observer, February 24, 2014.

Russia is currently carrying out a military intervention in the Crimea, in an open act of aggression against the territorial integrity and political independence of the Ukraine, thereby violating the bedrock principle prohibiting the threat or use of force contained in Article 2(4) of the U.N. Charter.

The lies and subterfuges being employed by Vladimir Putin and Russia hark back to the lies and subterfuges of Adolf Hitler when he secured the annexation of the Sudetenland through the threat of military intervention, scheduled to occur a day after the infamous Munich Pact was signed on September 29-30, 1938.

Putin publicly calls for a de-escalation of tensions in the Crimea, as Russian helicopters cross into Ukraine and Russian troop transports land at airports secured by Russian soldiers wearing unmarked uniforms. The president of the regional parliament is replaced by a Russian citizen following the seizure and occupation of the parliament building by similarly disguised Russian soldiers wearing military uniforms with no insignia. Meanwhile, Putin is conducting large-scale military exercises in western Russia including areas adjacent to the border with the Ukraine.

International law is absolutely clear in its prohibition of the threat or use of force against the territorial integrity or political independence of any country. This is a principle of jus cogens or mandatory law from which there can be no exception by way of agreement. Even if treaties between Ukraine and Russia granted Russia a right of military intervention, which they do not, their provisions would be void under the jus cogens principle contained in Article 2(4) of the U.N. Charter.

The use of Russian military personnel who are in the Crimea pursuant to treaties between Ukraine and Russia does not authorize them to act outside of the specific terms of the treaties, and any such actions such as those currently underway constitute acts of aggression.

Russia cannot come to the assistance of Russians in the Crimea to protect them against illusory threats whch have no basis in reality, and when the only threats in the Crimea are those that are being made by the Russians themselves.

The Russians, under international law, cannot intervene militarily to restore order in the Crimea, especially when it is they who have disturbed and are disturbing law and order on the Crimean peninsula.

No seizure of the Crimea by Russian military forces will ever be recognized under international law. Putin might well recall the cases of Lithuania, Latvia and Estonia, which were invaded by the Soviet Union in 1940 but were never recognized as part of the Soviet Union under international law.

The Russian threat is not likely to subside in a matter of days or weeks, absent Putin’s recognition that he has made a enormous geopolitical mistake and absent a decision by him to quickly back down. In Czecholslovakia, it will be recalled, the Soviet Union made a number of thrusts and feints over several months, before finally invading the country on August 20, 1968.

If Putin does not desist from his present couse of action, he will become the Leonid Brezhnev of our times. He should also bear in mind that actions such as military intervention in the Ukraine, whatever their short-term popularity in Russia, will only hasten the day that the Maidan comes to Red Square.

For information on the latest developments, see the following articles (list will be updated):

(1) “+++ Minutenprotokoll zur Krise in der Ukraine +++: Grenzposten verschanzen sich vor russischen Marinesoldaten,” Der Spiegel, 28. februar 2014 (12:59 Uhr).

Äußerstt angespannte Lage am Freitag auf der Krim: Über Nacht haben unbekannte Bewaffnete zwei Flughäfen besetzt. Russische Militärhelikopter kreuzten die Grenze zur Ukraine – und Marinesoldaten umstellen einen ukrainischen Grenzposten. Die Ereignisse des Tages im Minutenprotokoll.

(2) Julia Smirnova (Sewastopol), “‘Jetzt kämpfe ich auch gegen den Faschismus!'” Die Welt, 28. februar 2014 (17:09 Uhr).

In Sewastopol auf der Krim ist ein gewaltiges russisches Militärpotenzial versammelt. Es kam zu ersten Besetzungen durch ethnische Russen. Sie fühlen sich bedroht. Unsere Reporterin hat sie getroffen. Von Julia Smirnova, Sewastopol

(3) “Konflikt auf Halbinsel Krim: Ukraine protestiert gegen “Verletzung des Luftraums”, Süddeutsche Zeitung, 28. Februar 2014 (21:11). [outstanding overview of latest developments]

+++ Angeblich mehr als 2000 russische Soldaten auf der Krim gelandet +++ Ukraine fordert Russland zur Einhaltung bilateraler Verträge auf +++ Gestürzter Präsident: Russland soll “Chaos und Terror” unterbinden, aber nicht militärisch eingreifen +++ UN-Sicherheitsrat tritt zusammen +++

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In response to the Russian military intervention in the Crimea, President Obama went on TV at 6:00 p.m. EST to state that if Russia intervenes in Ukraine there will be “costs”. Coming from the weakest foreign policy leader of the U.S. since before World War II, those words are hardly likely to make Putin flinch.

“Costs” and consequences that can be initiated immediately, in the U.S. House and Senate, include drafting legislation that would repeal the most-favord-nation treatment given to Russia in 2012, and the drafting of legislation imposing stiff sanctions on Russia and high Russian officials responsible for the military intervention in the Ukraine.

Secondly, the EU can draft stiff sanctions legislation against Russia and Ruusian leaders.

Third, diplomats representing their countries at the U.N. can begin drafting a General Assembly resolution condemning Russia for its military intervention in Ukraine, and lobbying delegations from different countries for their support. To be sure, a Security Council resolution should be drafted and put to a vote. However, given the certainty that Russia will veto any such resolution (no reason not to put it to public discussion and a vote), it will be useful now to work on generating support for the General Assembly resolution, which should follow as soon ss possible following a Russian veto of the Security Council draft resolution.

The naivete of the Obama administration in dealing with Russia has been underlined in recent days by the inability of any officials as late as yesterday to imagine a Russian military intervention in Ukraine.

Given the weakness and incompetence of Obama and his administration, we can only hope that countries like Poland, Germany and France can help Europe take the lead in resolving the current crisis. Financial support from the U.S. will in any event be required as part of any solution to the conflict.

While Obama shows disdain for international law through his actions and his inability to articulate its norms even in support of vital U.S. objectives abd interests, the situation is different in Europe. There, politicians are not afraid to say the words “international law”. Indeed, the entire EU is built on international law. Moreover, the prohibition against the threat or use of force was born from the horrors which followed the experience of the annexation of the Sudetenland in 1938 and the invasion of Poland in 1939.

What hangs in the balance with the Russian military intervention in the Ukraine, now, is nothing less than the prohibition of the threat or use of force contained in Article 2(4). To seek a resolution to the current crisis without building every argument on that central fact, would be to miss the entire point. To allow the Russian intervention to stand would be to open the doors to countless new conflicts and wars in the future.

The Trenchant Observer
(Der Scharfsinniger Beobachter)
(l’Observeur Incisif)
(El Observador Incisivo)

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.