Russia’s annexation of Crimea in 2014 has become a turning point for the Kremlin’s relationship with the West. While inside Russia the event is largely viewed as a “restoration of historical justice,” in the West it is perceived as a violation of Ukraine’s sovereignty and territorial integrity and essentially as the first rewriting of Europe’s borders since World War II. As Russia’s belligerent behavior in the international arena continues to raise concerns, Russia analyst Thomas Hodson investigates the Kremlin’s attempts to manipulate the language of international law to justify its actions.
March 16, 2014: Perevalnye, Crimea, Ukraine. Soldiers in unmarked green army uniforms (later confirmed as the Russian military) seen in Crimea while the residents of the peninsula cast their votes in the referendum on whether Crimea should join the Russian Federation or remain as an autonomous republic in Ukraine. Photo: Michal Burza / TASS.
Author’s note. This article is based on a dissertation that I wrote for a Master’s degree in Russian and Post-Soviet Politics at the School of Slavonic and Eastern European Studies, University College London, in 2017. The purpose was to examine the Kremlin’s manipulation of the language of international law and desire to equate—both legally and morally—its actions in Georgia, Ukraine, and elsewhere with Western involvement in Kosovo, Iraq, and Libya. A key theme was the notional divide between the “native speakers” of international law, who make the rules, and the “non-native speakers”—with Russia in the latter camp yet striving to join the former. This abridged version looks at how the Kremlin developed a verbal strategy that drew parallels between the independence of Kosovo and the annexation of Crimea. In the process, Moscow revived the Cold War practice of simultaneously criticizing and co-opting the other side’s rhetoric, and staked a claim to “native speaker” status in international law.
[Part one is available here]
Russia and Crimea
Whereas Moscow’s recognition of independence of South Ossetia and Abkhazia in 2008 could crudely be described as a tit-for-tat reaction to Kosovo’s declaration that same year, the annexation of Crimea in 2014 was an order of magnitude greater in many respects, not least in international law. In the case of Crimea, independence was swiftly followed by annexation. While the West and many other countries saw this as an irredentist violation of Article 2(4) of the UN Charter and a challenge to the rules-based international order, for the Kremlin it was about “historical justice” and the unification of “Greater Russia” after the peninsula’s “unlawful” transfer to the Ukrainian SSR in 1954.
Despite the unprecedented (in post-war Europe) nature of the land grab, the Russian leadership was still extremely careful to place its actions in the context of international law. More than that, the “Kosovo precedent” that had been used in respect of South Ossetia and Abkhazia was utilized again, demonstrating a near pathological need to present all Russian military action as reactive, never aggressive. This makes sense from a neorealist, “survivalist” perspective: it is not in Moscow’s survival interests to frighten regional allies, such as Belarus and Kazakhstan, into forming closer alliances with the West or China. Therefore, the Kremlin is always careful to state its case with reference to international legal precedents, underlining that it is acting in accordance with pre-established norms.
The arguments of humanitarian intervention and the emerging international norm of R2P were cited once more, but given the lack of any actual mass violence in Crimea, the language was couched very much in preventative terms. Russia had supposedly “saved” the Russian-speaking population from something akin to genocide, with Russian Foreign Minister Sergei Lavrov quoting Ukrainian right-wing politician Dmitro Yarosh: “If we want Ukraine to prosper, Russians should be destroyed or ousted from Crimea.” The reference to preventative action and R2P was again taken from the verbal playbook of the West, this time on Libya in 2011, when NATO bombing raids were justified on the grounds of averting a massacre in Benghazi.
In 2008, Moscow had sought to equate South Ossetia and Abkhazia with Kosovo, presenting Georgia as an aggressor. This time around, Moscow not only pinned the “aggressor” label on Kyiv by painting the pro-Maidan authorities as “fascists” and “terrorists,” but also argued, in purely legal terms, that its military had been invited into Crimea by the “legitimate” government (in the words of Vladimir Putin: “We have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the [Russian] Armed Forces to protect the lives, freedom and health of the citizens of Ukraine”). What is more, the people of Crimea had supposedly voted to join the Russian Federation in a “democratic” referendum.
These “democratic” elements were missing in the Kosovo case, the Kremlin was keen to point out. Hence, Moscow’s feeling of “moral superiority” over the West—a deep construct of its national identity that frequently informs foreign policy rationale—was again supplemented by a sense of “legal superiority.” The Soviet-style nature of the referendum, unsanctioned by Kyiv, was irrelevant to the Kremlin. The point was that a referendum had taken place at all—unlike in Kosovo in 2008, Russia’s leaders were keen to stress. The legitimization strategy here was the same as in the case of South Ossetia and Abkhazia: to frame a politically motivated objective in language that the “native-speaker arbiters” of international law would not be able to refute without contradicting themselves.
Vladimir Putin’s “Crimea speech” on 18 March 2014 cited Kosovo no fewer than six times. In it, Putin spoke about the “precedent” set by the West: “The Crimean authorities referred to the well-known Kosovo precedent—a precedent our Western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate... They say we are violating norms of international law. First, it’s a good thing that they at least remember that there exists such a thing as international law—better late than never.”
The references to Kosovo and international law indicated the Kremlin’s desire to be seen to be (a) acting within pre-defined legal parameters and (b) not creating a precedent itself, but rather reacting to one already created. The message to both domestic and global audiences was that the repeated undermining of the true “arbiter” of international law—the UN Security Council—had created legal anarchy, with many commentators, some Western, concurring [1] Moscow did not break international law, read the subtext, because international law was already broken. A plate cannot be smashed twice, so to speak.
Post-Crimea repercussions
In the immediate euphoria of the return of Crimea, the Russian authorities assumed that pro-Russian sentiment would spread across south-eastern Ukraine, an area briefly referred to by its imperial-era monicker “Novorossiya” (“New Russia”). However, it soon became clear that Crimea, with its ethnic Russian majority (the only such region in Ukraine), was the exception not the rule. The result was a civil conflict in the Donetsk Basin (Donbass) between pro-Russian separatists, backed militarily by the Kremlin, and Ukrainian government forces, backed verbally and with some non-lethal aid by the West.
On May 11, 2014, the regions of Donetsk and Luhansk in eastern Ukraine held secession referenda, which, unsurprisingly, resulted in a large majority in favor. Soon after, the leaders of the self-declared “people’s republics” of Donetsk and Luhansk announced their desire to become part of the Russian Federation. Moscow, however, balked at the prospect of further sanctions, isolation and even potential conflict with Western countries. Economically the consequences of annexing Donbass were likely to be far greater than in the case of Crimea, and geopolitically the absorption of the region into Russia would be counter-productive. Instead, a “frozen conflict” disguised as a peaceful solution would be a more preferable outcome, so as to forever stymie Ukraine’s European ambitions.
What is interesting is the verbal justification employed by the Kremlin for accepting Crimea into the Russian Federation, yet rejecting Donbass; for once again it echoes Western rhetoric on Kosovo. When asked about the referenda in Donetsk and Luhansk, Sergei Lavrov replied: “I believe that Crimea was a very special case, a unique case from all points of view [...] The situation in the southeast of Ukraine is different. There is nothing like the unity we saw in Crimea. Some would like their land to re-emerge as a new territorial entity called Novorossiya, while others wish to stay in Ukraine but enjoy greater rights.”
Like the West on Kosovo, the Kremlin was keen to present Crimea not as a precedent, but as a “unique case.” It was aware of the danger of encouraging other separatist movements across the former Soviet space, even pro-Russian ones. Its language on Donbass reflected that fear. In response to a question about Russia’s “abandonment” of Donbass, Lavrov this time stated: “After the Donbass referendum, the leaders of these self-proclaimed republics did not refuse to have a dialogue with Kyiv. It was this dialogue that led to the Minsk Package [...] I think it is very important for the documents that were signed and approved by the Security Council to be implemented [...] We need to preserve this legal and international framework and safeguard it in all possible ways from attempts to undermine it...”
Moscow’s verbal strategy here was to reassert the primacy of international law and the authority of the UN Security Council, as it had always done with regard to Kosovo. In justifying the geopolitically motivated annexation of Crimea, the Kremlin had cited the West’s “Kosovo precedent.” In the case of Donbass, however, there could be no talk of a “Crimea precedent.” Instead, Moscow insisted that the Minsk Agreements endorsed under UNSC Resolution 2202 (2015) be implemented, at least in theory. It was another example of “code switching,” with Russia once more acting as a “multilingual speaker” of international law, applying seemingly contradictory interpretations to suit foreign policy objectives.
International law as a verbal tool
International law, despite the name, seems to have little actual legal effect when it comes to restraining powerful states if national honor, pride or interests are at stake. Instead, international law has become a vehicle—more specifically a language—for states to justify their actions and claim that they are “civilized,” regardless of how they actually behave. For Moscow, it was the West’s behavior during the unipolar period following the collapse of the Soviet Union that redefined international law. Through its actions in this period, specifically in the former Yugoslavia and the Middle East, the West allegedly created international legal anarchy, which the Kremlin seized upon to pursue its own geopolitical aims. Moscow did so by consciously co-opting the West’s legal rhetoric, thus creating a defensive mechanism against criticism—the so-called “whataboutist” argument. Far from being a new tactic, it revived a Cold War paradigm: in 1968, for instance, the Kremlin sought to justify the invasion of Czechoslovakia with specific reference to US operations in Latin America.[2]
In international relations, the language of law is seemingly more important than law itself. For it is through language that law finds its interpretation. Law, like language, is a social construct. Truth is in the eye of the beholder. And just as fundamentalists can find whatever they want in religious texts, so too can states find anything they like in the body of international law. What the Kremlin sought—and naturally found—were precedents supposedly created by the West. Even if such precedents do not actually exist, they are brought into being through the manipulation of language, the language that is international law. It is likely that Moscow would have declared South Ossetia and Abkhazia independent and annexed Crimea even without verbalizing the “Kosovo precedent.” But its moral and pseudo-legal argument for doing so was certainly buttressed by the latter event.
The Kremlin has an instrumentalist interpretation of international law, perceiving it as a tool for achieving practical purposes, rather than as a codified set of rules. This instrumentalism is twofold: it seeks to vindicate Russian actions with reference to Western precedents, while simultaneously admonishing the West for creating such precedents: “Take a look in the mirror” is always the subtext of the argument. It is a tit-for-tat approach to international relations that has a long history, from the expulsion of diplomats to the imposition of sanctions.
Rather than cause a paradigmatic shift in the Kremlin’s interpretation of international law, Kosovar independence rekindled a phenomenon from the bipolar era, when it was customary, even normative, for the two superpowers to frame their actions in terms of precedents set by the other, with each side claiming “moral superiority.” In an age of ideological warfare, being seen to be “morally right” mattered. Today it is perhaps even more important, especially for the weaker side that is no longer a military superpower. Modern Russia seeks to present itself as a “moral superpower,” the upholder of values and traditions long discarded by the decadent, liberal West. International law is a verbal tool, even a weapon, in that struggle, and part of the ongoing information war.
So why did Moscow feel entitled to act as it did in relation to Georgia and Ukraine? The answer seems to me to lie in the emergence, following the independence of Kosovo, of a “dual normative order.”[3] For Moscow, there now exist two frameworks or “playbooks” of international law—one that is still rooted in the authority of the UN Security Council, and one that has been violated, and hence voided, by the West. The Kremlin feels able to “code switch” between the two as it sees fit: the first playbook allows it to oppose Kosovar independence and ignore separatist referenda in eastern Ukraine in the name of territorial integrity; the second lets it carve up Georgia and annex Crimea in the name of self-determination. The West effectively supplied the Kremlin with the “verbal toolbox” it needed to rationalize its contradictory positions in its “near” and “middle” abroad.[4]
The “dual normative order” and the practice of “code-switching” between legal frameworks look set to become entrenched, and the consequences could spread, especially in view of China’s increasing engagement with international law. Beijing has already rejected a ruling by The Hague seeking to invalidate its territorial claims in the South China Sea, and is uneasy about the prospect of any unilateral action on North Korea.
In July 2014 Vladimir Putin stated: “International law [...] should not be applied selectively to serve the interests of individual select countries [and] should be interpreted consistently. It is impossible to interpret it in one way today and in a different way tomorrow to match the political goals of the day.” Yet “selective application” is an accurate two-word summary of the Kremlin’s own philosophy in the wake of Kosovar independence. Under Putin, a lawyer himself, Moscow has sought to shape and customize international law around geopolitical aspirations.
[1] See, for instance, John Mearsheimer’s article Why the Ukraine Crisis Is the West’s Fault: https://www.foreignaffairs.com/articles/russia-fsu/2014-08-18/why-ukraine-crisis-west-s-fault
[2] See Word Politics: Verbal Strategy among the Superpowers (1971) by Thomas M. Franck and Edward Weisband
[3] Russia, the West, and Military Intervention by Roy Allison (OUP, 2013), p.216
[4] “Near abroad” is a term used in the Russian language with reference to the Commonwealth of Independent States; by analogy, the Balkans and the Middle East are sometimes called Russia’s “middle abroad”
