Legal Trolling: Russian Lawfare in the Context of Ukraine
By Craig Forcese
22 Feb 2022
Forced to revise my international law class on the fly as events develop in Ukraine, I share here some quick observations about the Russian legal posture in the emerging conflict in the region. In doing so, I depend heavily of the insightful scholarship of Professor Roy Allison (2017) and (2020).
A. Russia in its Far Abroad: Expedient Traditionalist
Russia’s approach to international law under Putin is inconsistent. At the global level, it has positioned itself as a “traditionalist” or “restrictionist” power, emphasizing “sovereignty” and limitations on the use of force without UN Security Council authorization. Its approach to sovereignty – as a hard shell excluding intrusion by international law in domestic affairs – has often been aimed at international human rights rules and also has animated a resolute hostility to regime change, of the sort that has been embraced by at least some Western democracies (such as the United States).
Likewise, it has resisted US-led construals of the right to self-defence in international law against non-state actors like ISIS. It has rejected, for instance, the notion in Syria that force can be used in self-defence against non-state actors engaged in an armed attack and located on the territory of a state that is unwilling or unable to suppress that attack. At the same time, it has emphasized the competency of regimes like that of Assad to invite third states (namely, Russia) to exercise force on their territory.
These postures are obviously defensive, a reaction to what Russia regards as the intrusive and expansionist Western views of international law. At the same time, Russia has been egregious in its failure to observe other well-accepted rules in international law in Syria, such as international humanitarian law. Russia’s embrace of “traditional” international law is, therefore, selective, tactical, and expedient.
B. Russia in its Near Abroad: Opportunistic Peddler of Nonsense
Whatever (wobbly) claim Russia might have to traditionalism in international law collapses in the approaches it has adopted in the former component states of the Soviet Union. Putin regards some (if not all) of these states as “not really states”, or, if states, then encumbered by limitations on their sovereignty because of their presence in Russia’s supposed sphere of influence. To this degree, Russia might reasonably be called a revisionist or even nostalgic power, with its benchmark as the pre-World War II concepts of imperial suzerainty or, as some have suggested, the Yalta Conference concept of spheres of influence. Some commentators have also found in Russia’s current posture echoes of the (utterly without foundation in international law) Brezhnev doctrine, justifying military intervention in backsliding socialist nations in Eastern Europe.
In its attempt to recoup that sphere of influence, Russia has adopted an approach to international law best described as “throwing everything up against the wall”. This opportunism comes in several (sometimes inconsistent) forms. First, it embraces expansive views on some international law principles that, in a more global context, it wishes limited. Second, it invokes recognizable international law concepts, while omitting or deemphasizing pre-requisites on the proper exercise of those concepts. Third, it makes things up. In all instances, it muddies discussion by accepting, rejecting, or manufacturing facts shamelessly.
1. Making Things Up
Russian discourse at times seems to imagine Russia as the possessor of a russophone ethnic or regional exceptionalism, enabling intervention in the former component units of the Soviet Union, such as Georgia or Ukraine, to correct an historic injustice or anomaly (the collapse of the Russian/Soviet empire) and/or as the defender of a broadly-defined community of ethnic Russians. Neither of these concepts is a basis in modern international law to interfere with another sovereign state, although this imagery does bear a striking resemblance to the Nazi discourse in 1930s Germany (which among other things, justified the dismemberment of Czechoslovakia to “defend” ethnic Germans in Sudetenland). This tradition is also consistent with the pan-Slavism of earlier period of Russian history, and with the Soviet tradition of variable interpretations of international law, depending on whether the matter in question involved a socialist state or not.
2. International Law, But Without the Pesky Details
Alternatively (or in addition), Russia has selectively invoked actual principles of international law, but unpersuasively and without must interest in the actual contours of these rules. For example, Russia has justified the annexation of Crimea as an illustration of the right of self-determination, sometimes pointing to Kosovo (which Russia does not recognize as a state) as justification.
External self-determination (that is, separating from an existing state) is properly a right exercised by peoples responding to colonization by an imperial power. It is also plausibly invoked in response to alien subjugation, domination or exploitation. Finally, there is some support for external self-determination as a last resort when, as Canada’s Supreme Court put it, “a people is blocked from the meaningful exercise of its right to self-determination internally” (that is, participation in representative institutions) (para 134). In addition, self-determination depends on the expression of that people’s will, through a free and fair democratic process.
Outside of Russia and a handful of its satellites, the international community has resisted the idea that Russia’s annexation of Crimea met either the justification standard for self-determination, or the process requirement of a fair referendum process. Not least, that referendum took place while Russian forces occupied the territory, even if at the time Russia denied these troops were Russian state soldiers.
In this last respect, Russia muddies the water further, often denying the participation of state troops, describing then as, eg, volunteers or local people. It seeks to leverage, in this manner, international rules that generally bind states only to conduct attributed to it – and attribution to a state of the conduct of non-state actors requires effective control over that non-state actor.
3. Expansionist International Law
Along the way, Russia has also adopted a breathtakingly broad view of its entitlement to use force against, and effectively absorb (de facto or de jure) the territory of, former Soviet republics. The starting premise in international law is that states may not use force against the territorial integrity or political independence of other states. The two recognized exceptions to this rule are UN Security Council authorization or self-defence. In the far abroad, Russia has adamantly objected to expansive concepts of “self-defence” invoked by the United States, and has defended regularly the primary role of the UN Security Council as arbiter of legitimacy when it comes to use of force.
In its near abroad, however, Russia has cycled through a dizzying array of expansive approaches to use of force, often presented in a half-baked manner (almost as if they were simply meant to sow discord and uncertainty). These have included a “humanitarian intervention” style justification, conflated also with expansive self-defence arguments. In the latter instance, Western governments fear Russia will embrace “false flags”, such as an attack on Russian troops that is faked or simply asserted. Russia may try, in other words, to play on the legal distinction between aggressor and defender. An aggressor enjoys no rights in international law. Russia, for instance, would not enjoy a right of self-defence against the self-defence exercised by a state subjected to Russian aggression. Moreover, even if it did, self-defence is limited by rules such as necessity (force is the only plausible response to an ongoing armed attack) and proportionality (only as much force may be used as is needed to stop this ongoing armed attack). It is not clear how earnest Russia might be in observing these principles.
4. The Lawfare Slam Dunk
In this last respect, current events as of 22 Feb 2022 in Ukraine may represent a mash-up of Russia’s pretextual approach to international law. Russia has already adopted an approach of “passportification”, unilaterally declaring citizens of contested regions de facto Russians entitled to Russian citizenship. Now going further and recognizing the Donbass territories as independent through some convoluted justification (likely, again tied to an improbable self-determination claim), Russia may now treat these territories as being attacked by Ukraine (and those regions of the Donbass that continue to be held Ukraine, as occupied by Ukraine) in violation on the prohibition on the use of force by one sovereign state against another. The “independent” territories may then invite Russian support in their exercise of their own putative “self-defence” against Ukraine. In Russian hands, that “self-defence” may embrace precisely the sort of “regime change” in Kyiv, through the use of force that Russia decries elsewhere.
In sum, Russia is probably best described as having an expediently traditionalist view of international law in its far abroad, and as shamelessly opportunistic closer to home. In the result, Russia is in the process of disturbing a bedrock principle of the post-World War II international order, consistently although not perfectly honoured: that states cannot acquire territory from states through conquest.*
* Criticism of Russian contortions in international law should not be taken as an apologia for doubtful US approaches, or those of other states. “Whataboutism” of this sort, however, would ignore the fact that the United States (and most other states) have not bent or broken international law in service of territorial acquisition, even if they sometimes take positions enabling doubtful uses of force or interventions in foreign states. This may appear to some to be a distinction without a difference, but I disagree, given the destabilizing implications of conquest as a means of territorial settlement. The return of conquest as a legitimate means of territorial acquisition would open the proverbial Pandora’s Box.