Russia projects itself as a guarantor of international law, a just and maybe slightly conservative country that stands for the validity of international law and its principles as agreed in 1945 in the UN Charter and related acts. Its deeds, however, do not always support this noble task. Kadri Liik, senior policy fellow at the European Council on Foreign Relations, has aptly pointed out (in the context of domestic politics) that in Russia “the right things happen for the wrong reasons”. So does Russia actually speak the “language” of international law and justice, or do the right words serve the wrong causes? The example of the war with Georgia, during which Kosovo was often cited as a precedent, fits the purpose of a small case study on that question. Who is guilty of the “dual morality” in those cases—the West, as Russia always claims, or Russia itself?
International Legal Framework
The provisions of the UN Charter and accepted international law strictly prohibit the use of armed force. This regulation is widely accepted and breaching it is broadly condemned by the international community. Article 2 (4) may be considered the core of the Charter and the prohibition of the use of force against another country is a peremptory (jus cogens) norm of international law. Neither humanitarian nor (even more questionable) pro-democratic intervention is acceptable as an exception to this prohibition.1
At the same time, as mentioned in the Charter itself and, for example, the R2P (responsibility to protect) principle, human life and dignity are the core values of international law and order. The protection of human rights is an obligation of all members of the international community. When it comes to the use of force as a means for fulfilling that obligation, both views—a conservative and a more liberal one—may be justified. The prohibition of the use of force is absolute in its essence and the consequences (including misinterpretations and violations) of opening the door to more exceptions are unpredictable. So, in principle, the conservative view is justified and should not be perceived, a priori, as biased or manipulative.
The Russian Position
Russia has, at least since the collapse of the Soviet Union, always been against narrowing the scope of this prohibition. In its official statements, it condemns Western states for using human rights or pro-democratic arguments to justify violation of the principles of state sovereignty and non-intervention. In cases of discretionary decisions (human rights vs. sovereignty), Russia has often put sovereignty first (e.g. Kosovo, Syria).
Assuming that the Russian position per se is justified, let us look more closely at its thinking on international law. In Russia human rights have always been interpreted a little differently than in the West. The differences have been justified by, for example, a different political ideology (in Soviet Russia) or cultural differences.2
There is indeed a historical (or cultural) difference in understanding the relationship between the individual and the ruler: while in the West the relationship is seen as “contractual”, in Russia it derives from the idea of “giving oneself over” to the Tsar (who was akin to the God).3 If the subjects of international law are considered to be only or primarily states, not individuals, it is understandable that the principle of state sovereignty and the right to self-determination prevail over human rights and humanitarian values.
The following thought of one Russian international-law scholar well illustrates Russian attitudes on the question: “It follows from the principle of sovereignty that the State’s relationship with its own population is a domestic question, regulated at the national level. It is necessary to depoliticize and de-ideologize the use of human rights in inter-State relations.”4 This, according to Russia, the West with its dual morality is failing to do. But how “dual” is Russia’s own morality when it comes to its actions?
Russia has claimed that intervention in and acknowledging the independence of the breakaway Georgian territories of Abkhazia and South Ossetia was an analogous case to Kosovo. Indeed, in both, regional and national tensions date back centuries and the interventions were not authorised by the UN Security Council.
In Kosovo negotiations had been going on for about a year, several agreements had been made and breached by Serbia, and diplomatic solutions were rejected by the Federal Republic of Yugoslavia before NATO began air strikes in 1999. In discussions in the UN Security Council, Russia warned that NATO’s actions would set a dangerous precedent and “a virus of a unilateral approach would spread”.5 So Russia took a conservative approach—it interpreted the ban on using armed force and the principle of non-intervention broadly and stressed the importance of state sovereignty. The other side stressed the moral imperative “to act forcefully in the face of gross violations of human rights”.6
The then UN Secretary-General, Kofi Annan, admitted that the question was not unambiguous but said that “what is clear, is that the enforcement actions without Security Council authorization threaten the very core of the international security system founded on the Charter of the United Nations”.7 So Russia was not wrong in condemning the intervention, whatever the motives. But does it persist in its principal views and act accordingly?
Russia’s main arguments in justifying the use of force in Georgia were:
a) protecting civilians of South Ossetia, and
b) protecting Russian citizens abroad.
The first argument is clearly humanitarian, and identical to the main argument in the case of Kosovo. Unlike in Kosovo, however, in this case Russia prioritised humanitarian considerations over the principles of state sovereignty and non-intervention. So were the circumstances more exceptional in Georgia?
Like Kosovo and Serbia, Russia and Georgia had a long history before the war. Georgia is one of the countries that Russia classifies as the “near abroad”, in which it had already taken back control in the 1990s. Russian troops took up presence on Georgian soil, peace agreements were concluded determining the role of Russian “peacekeepers” in securing the peace in Abkhazia and South Ossetia, and Georgia joined the Russian-led Commonwealth of Independent States and Collective Security Treaty.
At this point Russia established an awkward and legally very ambiguous pattern: it facilitated rebellious tendencies, supported certain political forces and, when the situation was out of control, received an invitation from president Shevardnadze to go and help sort it out. In fact, indirect force also falls within the scope of the prohibition of the use of force and the principle of non-intervention. It is impossible to claim that facilitating rebellious sentiment and supporting political forces in another country is not an intervention in the domestic affairs of that country. Accepting that Russia intervened by invitation (an accepted exception to the prohibition of the use of force and principle of non-intervention) in this situation would lead to an absurd interpretation that it is tolerable to force the invitation, even by breaching the law, and then legally come to “help”.
Relations between the neighbours deteriorated again after Mikheil Saakashvili came to power in Georgia and began to take a clear pro-Western course.8 First, Russia claimed that Georgia had carried out genocide against the people of South Ossetia. As it became clear that this could not be proven, these allegations became less frequent.9 By comparison, in the case of Kosovo, the displacement of people and atrocities against Kosovo Albanians were evident.
A 2009 report to the Council of the European Union by the International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG) brings out two reasons humanitarian arguments are not appropriate in the case of Georgia: insufficient grounds and Russian geopolitical interests. “Among major powers, Russia in particular has consistently and persistently objected to any justification of the NATO Kosovo intervention as a humanitarian intervention. It can therefore not rely on this putative title to justify its own intervention on Georgian territory. And as a directly neighbouring state, Russia has important political and other interests of its own in South Ossetia and the region. In such a constellation, a humanitarian intervention is not recognised at all.”10
What about the second argument: protecting its own nationals? This is the only justification, next to self-defence and UN Security Council authorisation, that Russia officially accepts as a basis for an exception to the prohibition of use of force.
Actions resting on this argument are somewhat questionable and, if allowed at all, should be limited in scope and duration and very strictly focused on rescuing and evacuating nationals.11 The IIFFMCG report concludes that this was not the case in Georgia: “In the case at hand, the action was not solely and exclusively focused on rescuing and evacuating Russian citizens, but largely surpassed this threshold by embarking upon extended military operations over large parts of Georgia.”12 The proportion of ethnic Russians or Russian citizens in Georgia was small, so the argument seemed even more like a random excuse for intervention.
That explains the “passportisation” campaign carried out before the conflict (since 2004). Russia began to grant passports and citizenship to people in Abkhazia and South Ossetia through a simplified procedure. Russia claimed that, along with acknowledging their independence, this was a means to help the regions’ populations.
The IIFFMCG report concludes that the naturalisation was illegal because the granting of citizenship took place in a situation where the naturalised persons did not have any connection to the “receiving” state, nor was there any other accepted basis in international law. So the vast majority of naturalised people are not legally Russian citizens and the argument of protecting them is void.
Based on that example, we may conclude that the one principle that Russia has followed is pragmatism. The morality, however, seems rather dual.
To paraphrase Kadri Liik’s proposition, it seems that in Russian foreign policy the wrong things happen for (at least rhetorically) the right reasons. Could the wrong things be replaced with the right ones and Russia actually become a protector of international law and order?; and, if so, how? For that, I think, Russia needs to find a real national idea based not on imperialism or doubtful interpretation of history but on something more persistent, something deriving from its people, rich culture and traditions.
Of course, identity and personal development cannot be imposed from outside. But examples are influential. So the best we can do to have a better neighbour at some point is to set an example: to live up to human rights and democracy, not only in words but also in deeds. Luckily, this is also the only thing that can guarantee our security and sustainability as a society. Thus, it gives us a solid basis for saying that our morality is not dual.
1 The Charter of the United Nations: A Commentary. Second Edition. Vol 1. Edited by Simma, B. et al. Oxford University Press Inc., New York, 2002, pp. 130–2.
2 “The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe”. Mälksoo, L. The European Journal of International Law. Vol. 19 (2008), No. 1, pp. 211–32.
3 Ibid., p. 218.
4 “International Law in Russian Textbooks – What’s in the Doctrinal Pluralism?” Mälksoo, L. Göttingen Journal of International Law. Vol. 1 (2009) No. 2, pp. 279–90.
5 “NATO’s Armed Intervention in Kosovo and International Law”. Nanda, V.P., U.S. Air Force Academy Journal of Legal Studies, Vol. 10 (1999–2000), No. 1.
8 Report to the Council of the European Union, 30 September 2009 by the Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG).
11 E.g. US the interventions in Panama and Grenada, and even the failed US attempt to free hostages in Iran, were considered illegal, but Israel’s 1976 operation at Entebbe airport in Uganda was quite widely approved in the international community.
12 IIFFMCG report.
This article was published in ICDS Diplomaatia magazine.