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How Putin Distorts R2P in Ukraine

Russia is attempting to cloak aggressive action through the mantle of humanitarian intervention, says James P. Rudolph.

By: /
7 March, 2014
By: James P. Rudolph
Attorney in California and Washington, D.C.

To justify Russia’s recent incursion into Ukraine, its President Vladimir Putin alongside others in the Kremlin have invoked the “responsibility to protect” (R2P). Russia’s reliance on R2P is understandable, but it should be seen for what it is: an attempt to cloak aggressive action through the mantle of humanitarian intervention.

R2P has three pillars. First, each individual state has the primary responsibility to protect its populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. Second, the international community should encourage or assist states to exercise this responsibility. And finally, the international community has the responsibility to use appropriate diplomatic, humanitarian, and other peaceful means to protect populations threatened by these crimes. When a state manifestly fails in its protection responsibilities, and peaceful means are inadequate, the international community must take stronger measures including the collective use of force authorized by the UN Security Council under Chapter VII.

First and foremost, then, Ukraine—not Russia—has the primary responsibility to protect its citizens from large-scale atrocities such as genocide, crimes against humanity, war crimes, and ethnic cleansing. Nowhere, in any of the news coming out of Russia or Ukraine, do you hear about these kinds of atrocities. If anything, we hear that ethnic Russians in parts of Ukraine feel discriminated against, especially with respect to the use of the Russian language. A law passed after the overthrow of Ukrainian President Viktor Yanukovych, for example, removed Russian as one of the official languages of Ukraine. Yet, as reported in several media outlets, this law has already been rescinded. In other words, Ukraine appears to be neither unable nor unwilling to protect its population from crimes that might lead the international community to invoke R2P.  In fact, the pro-Ukraine protesters, many of whom were ethnic Russians, appeared to be driven by a desire to forge closer ties to the West and its emphasis on human rights and democratic principles.

Second, the international community, through the European Union and the International Monetary Fund, has already been assisting Ukraine, which faces some daunting financial hurdles. Ukrainian officials insist that without $35 billion in loans, it faces certain default, so the government in Kyiv, as a condition precedent, has recently committed to urgent anti-corruption reforms.  Economic troubles, it goes without saying, can exacerbate underlying political and ethnic tensions, so this assistance is wholly consistent with R2P’s emphasis on economic and social justice as a way of preventing conflict.  Thus, Russia cannot claim that it is propping up a government on the verge of economic collapse.

Third, and finally, the use of force must always be a last resort. Put simply, appropriate diplomatic, humanitarian, and other peaceful means must be employed first. Many diplomatic efforts have been attempted in the last several days, most recently in Paris where an attempted face-to-face meeting between the Ukrainian foreign minister and his Russian counterpart failed to materialize. But even if Moscow claims that diplomatic efforts have been tried and found wanting, there is the final section of this last R2P pillar staring Mr. Putin in the face: the use of force, with the exception of self-defense, must be authorized by the UN Security Council.

To be sure, Russia has not yet used force in Ukraine, but its troops already have crossed into Crimea. This violates Ukraine’s sovereignty and the 1994 Budapest Memorandum, according to which Russia agreed to recognize and respect Ukraine’s territorial integrity and political independence. To get around this difficulty, Mr. Putin has pointed to a letter from Ukraine’s former President Yanukovych, whom he considers to be the rightful leader of Ukraine, asking Moscow for its help. Russians are, as Mr. Putin sees it, welcome guests. But the dominant mood in Ukraine regarding Russia’s intervention, as noted by Olga Dukhnich in the New York Times, is not of joy, but fear.  Indeed, the voices of those clamoring for more aggressive Russian intervention are being amplified by Kremlin myrmidons and propagandists.

To avoid breaking international law, Mr. Putin must use the Security Council if he wishes to apply some kind of Russian solution to the problems in Crimea. Conveniently, Mr. Putin, in a New York Times op-ed penned in September 2013, already has said as much. “We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos,” Putin wrote. “The law is still the law, and we must follow it whether we like it or not.” And the law says that Russia shall respect Ukraine’s territorial integrity and independence.  Wanting the law to apply to Syria, but not to Ukraine, smacks both of hypocrisy and a potentially deadly double standard.

In the final analysis, then, it appears that the R2P elements themselves have knocked into a cocked hat the arguments Mr. Putin and his foreign minister, Sergei Lavrov, have been pushing: that Moscow must protect ethnic Russians in Ukraine from reactionary, nationalist, and anti-Semitic forces because Ukraine cannot do so.

R2P has a place in the world of international law and human rights, especially as a catalyst for action when mass atrocities are occurring. But this is categorically not the case in Ukraine.

Attempts, like President Putin’s, to misapply and distort the concept should therefore be resisted.

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