Why did Moscow take such careful steps to ensure its annexation of Crimea didn’t break Russian law?
- By Katie EngelhartKatie Engelhart is the London-based correspondent for the Canadian newsmagazine Maclean's.
There’s been no shortage of commentary on how Russia’s invasion of the Crimean peninsula in late February was a flagrant violation of international law. Less attention has been paid to whether it was a breach of national Russian statutes too. By some simplified accounts, President Vladimir Putin sent in the troops, then annexed Crimea willy-nilly — without so much as a nod to Moscow’s legal process.
But that’s not entirely true. Russia’s invasion and annexation of Crimea may have violated world order, and the Crimean referendum may have been a fraud carried out at the barrel of a Russian gun. Nevertheless, for the last three weeks, Russian politicians have been working feverishly to add a sheen of legality at home to Moscow’s activities abroad. It’s part of a broader trend of sham legalism that was a hallmark of Soviet despotism and remains firmly entrenched in the Kremlin today. "Putin has this obsession with the letter of the law, with no regard to the spirit," says Maria Lipman, chair of the Carnegie Moscow Center’s Society and Regions Program.
Indeed, Putin has managed to "legally" justify his country’s first absorption of new territory since the collapse of the Soviet Union. In doing so, he has perhaps revealed a blueprint for future incursions into other parts of the former Soviet space. As if on cue, politicians in the pro-Russia breakaway region of Transnistria (part of Moldova) asked Moscow to draft legislation that would join the territory to Russia, and the eastern Ukrainian city of Kharkov has called for a Crimea-like referendum of its own. In addition, a Russian diplomat has reportedly expressed concern about the safety of ethnic Russians in Estonia.
If or when Russia would make another Crimea-style move remains to be seen. But what’s certain is that Russia now has a tested domestic process for realizing its revanchist claims.
In late February, the Russian troops flooding into Crimea — seizing buildings, encircling airports, and blockading thoroughfares — stood in violation of Russia’s Constitution, which does not allow for a foreign state to simply be tacked onto existing Russian borders. For a new territory to be absorbed into the Russian Federation, the state to which the territory belongs (in this case, Ukraine) has to agree — and a formal interstate treaty must be signed.
From day one, politicians in Moscow made vague legal references to a Russian duty to "protect" ethnic Russians in Crimea from "ultranationalist and extremist forces" in Kiev. These hazy allusions to Russia’s supposed obligations within the post-Soviet sphere inspired many an analogy between Putin and Hitler — specifically Hitler’s annexation of Austria in 1938, which was justified as a means of protecting ethnic Germans. Putin also declared that Russia had the right to take action in Crimea and that Crimea had the right to secede from Ukraine, despite many arguing that international law says no such thing. "There is no internationally recognized right of ‘external’ secession, [as in] separation from the parent state of a region (whatever the talk of self-determination)," emphasizes Roy Allison, a lecturer in the international relations of Russia, Eastern Europe, and Eurasia at Oxford University. "Much less is there a right for states to annex parts of their neighbor states."
Yet the Duma wanted annexation to be legal, at least according to the letter of Russian law, and set about to make it so. A hastily proposed draft bill was introduced to the parliament on Feb. 28, which would have amended existing law to make it easier for Russia to annex foreign territories that are inhabited by ethnic Russians. The bill, reported the Moscow Times, would have recognized situations in which a sovereign state was not "effectively protecting the rights of its citizens" and, in these circumstances, would allow a foreign territory to "join Russia on the basis of a referendum." In other words, if a state were neglecting or endangering Russian speakers (as Moscow claimed Ukraine was doing in Crimea), then Russia could do away with the legal requirement for an interstate agreement. Russia’s state-owned news agency RIA Novosti reported that the bill was "widely interpreted as a signal that Moscow may be planning to gain control over … Crimea."
Europe, unsurprisingly, was not pleased by Russia’s moves on the legal front. Quickly, the Venice Commission of the Council of Europe, an advisory body of constitutional law experts, passed a draft opinion declaring the bill "not democratic" and "not in line with the Constitution of Ukraine." To the surprise of some, Russia ceded on March 17, citing the Venice Commission’s decision as it withdrew the proposed bill. It was a superficial appeasing nod to European legal procedure. Lipman at Carnegie Moscow, however, says, "It doesn’t matter because in the meantime, Russia found a way to ‘legally’ annex Crimea without any such piece of legislation."
The other way came through Crimea’s referendum. The date of the vote was moved from March 25 to March 16, and the ballot was changed so that the referendum was a vote on accession to Russia, rather than a simple up-or-down vote on Crimean autonomy. When the referendum passed, Russia was able to quickly recognize Crimea as a "sovereign and independent" state (much as other countries have done with new states like South Sudan or Kosovo) — thus theoretically doing away with the need for negotiations with Kiev, as stipulated under the Russian Constitution. This "sovereign" state of Crimea then asked to become part of Russia, and Moscow said hurrah in the form of a treaty annexing the region.
On March 18, Putin addressed both chambers of the Russian parliament with an hourlong speech. In it, he announced the union of Crimea and Russia — that is, when he could get a word in edgewise. Putin was interrupted numerous times by thunderous applause and ecstatic ovation: "cheers and tears," reported Reuters.
Moscow declared the annexation treaty in effect at the moment of its signing.
Subsequent "due process" was also ostensibly observed and tracked in excruciating detail by Russian news outlets. The draft treaty signed by Putin and Crimean leaders was passed to Russia’s Constitutional Court for review; that court worked through the night and declared the accession to be legitimate by the following morning. A day later, Russia’s lower house rubber-stamped the union. On March 21, the upper house did the same. Russia has reportedly begun issuing passports to Crimean residents.
It all happened so quickly that critical details — like what currency Crimea will use (likely the ruble) and what time zone it will follow (probably Moscow time) — still need to be worked out. There has also been little time in which Crimean opponents of the move to join Russia could air their concerns.
And here’s where others of new legal measures Putin has pushed will come in handy. On Jan. 30, Putin signed a new law allowing his government to block (without a court order) any websites that contain "extremist" material or that call for unauthorized public gathering. Over the last few weeks, under this law, several major opposition news organizations and blogs that have criticized Russia’s Ukraine maneuverings were blocked. A statement from Russia’s state communications monitoring agency explained, "These sites contain incitement to illegal activity and participation in public events held in violation of the established order."
Moreover, a month prior, Putin had signed a law that criminalized public calls "for action to violate the territorial integrity of the Russian Federation." This might mean that citizens of Crimea — now "Russians," by the Kremlin’s logic — could be imprisoned for speaking out against the annexation.
In other words, Putin’s legal edifice regarding annexation has built-in reinforcement.
Why bother with this pretense of legality? In part, it might have been because Putin wanted to play domestic politics in his favor. In being able to claim that he was acting in accordance with Russian law, it was all the easier for him to paint the United States and Europe as infringing on domestic affairs. (As it stands, many analysts believe that a majority of Russians support the Crimea annexation.)
This also ties into Putin’s eagerness of late to point out "Western double standards" — for instance, the United States supporting Kosovo’s independence, but not Crimea’s. Putin and his aides have declared repeatedly that Russia’s actions regarding Crimea are "in full accordance with democratic procedures and international law" — the former of which is now at least somewhat true — while the West is inconsistent in its respect for principles like self-determination and sovereignty. Crimea is thus a proxy in a broader ideological contest, in which Russia’s new laws are weapons for battling with the West.
But this insistence on "legal" process is likely also a forward-looking move: a strong signal to other pro-Russia territories of what will follow if they too hold referendums. On Thursday, Foreign Minister Sergei Lavrov added a footnote to Russia’s de facto appropriation of Crimea when he said Russia would continue to employ "political, diplomatic and legal methods" to protect ethnic Russians abroad. It is now certainly possible that Russia will use the tools and machinations again, to "legally" absorb other territories like Transnistria, or South Ossetia and Abkhazia (in Georgia). Already, on Thursday Russian ministry officials discussed the plea of politicians in Transnistria for a Russian annexation.
When the Crimea annexation was presented to the Russian parliament’s lower house, it passed almost unanimously — with only one objector voting against the bill. "The best intentions have led us to a big mistake," Duma dissenter Ilya Ponomaryov later tweeted. "I vote against the war."
Lipman says Moscow’s savvy, unchallenged moves are nothing new — part of a pattern that will likely keep repeating in both foreign and domestic policy. "[N]onsense egregious lawlessness is declared legal," she says, "and all you are left to do is rage and feel your powerlessness."