Thursday, March 20, 2014

Response to Prof. Eric Posner's blog entry "VLADIMIR PUTIN, INTERNATIONAL LAWYER"

The orignal blog entry by Prof. Eric Posner is here.

The English version of Putin's speech contains slight edits here in an effort to create the same images in the mind of the reader as those when the speech is read in its original Russian.  The official English version of the speech is here.

Now on to the blog entry.  Prof. Posner's comments are in bold, mine are in red.


From his speech to the Duma (with my [i.e., Eric Posner's] annotations in [black] brackets):
However, what do we hear from our colleagues in Western Europe and North America? They say we are violating tenets 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. [So there!] [Unlike Prof. Posner, I am not surprised at this sarcastic reference to Grenada, Panama, Kosovo, Afghanistan, Iraq, Syria, Lybia, CAR, Palestine, and most other U.S. invasions or similar actions in other countries, often done in violation of UN Charter and/or other international law.]
Secondly, and most importantly – what exactly are we supposedly violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the Armed Forces in Ukraine.  However, strictly speaking, he has not taken advantage of this permission yet.  Russia’s Armed Forces did not enter into Crimea; they were already there in accordance with an international agreement.  True, we strengthened our position there[without entering?][immaterial; the agreement allowed entry]; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our Armed Forces in Crimea, which is set at 25,000, because there was no need to do so. [But Russian forces appear to have roamed about Crimea in violation of this agreement as well as the UN Charter.] [But to the extent that any proof could ever be found that this was so, it was in response to the "protesters" in Kiev having been trained and then persistently fed, stirred up, and supported by the West in the same covert manner.  Putin is not a fool.  When the West double-crosses him and plays dumb, he is not going to sit and allow it to happen. I have not seen anyone in the West holding Kiev to the same standards.]
Next. As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination [true]. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine took advantage of this right, yet the residents of Crimea are being denied it. Why is that? [Why indeed?]
Moreover, 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 and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say. [I'm afraid so.]
I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” [Right.] End of quote.  They wrote this, disseminated it all over the world, beat everyone into submission, and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why. [Exactly.  Putin is arguing against double standards.  Clinton and Bush essentially taught Putin how to pursue one's interests in spite of any international law that may be in the way.]
We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties.  Is this some kind of legal argument? The ruling of the International Court says nothing about this. [True; it is legally irrelevant.] This is not even double standards; this is some astonishing, primitive, blunt cynicism. One should not try so crudely to make everything suit their interests, calling the same thing white today and black tomorrow. According to this logic, we have to make sure every conflict leads to human losses. [The U.S. position is that forcing Kosovo's population to remain a part of a country whose government tried to massacre it would be wrong, and numerous efforts were made to broker a compromise before secession took place. Putin argues that it would be ridiculous to make Crimea wait for its population to be massacred before seceding.][A similar argument can be made regarding Crimea, after 80+ corpses in Kiev under murky circumstances, with no investigation conducted and the bodies hastily buried.]
I will be straightforward – if the Crimean local self-defence units had not taken the situation under control, there could have been casualties as well. [This is doubtful, as there were no massacres anywhere else in Russian-speaking Ukraine that did not benefit from "local self-defense units".][Not that doubtful in light of the 80+ corpses in Kiev under murky circumstances, with no investigation conducted and the bodies hastily buried.] Thank God this did not happen. There was not a single armed confrontation in Crimea and no casualties. Why do you think this was so? The answer is simple: because it is very difficult, practically impossible, to fight against the will of the people. Here I would like to thank the Ukrainian military – and this is 22,000 fully armed servicemen. I would like to thank those Ukrainian service members who refrained from bloodshed and did not smear their uniforms with blood.
Other thoughts come to mind in this regard. They keep talking about some Russian invasion of Crimea, some sort of aggression. This is strange to hear. I cannot recall a single case in history of an invasion without a single shot being fired and with no human casualties. [But because the military force was overwhelming.] [Not true.  Baseless inference.  I spoke by telephone with at least three different Crimeans residing there in different regions.  The "military force" was only around military installations and strategic installations.  The locals overwhelmingly welcomed the "forces" after Maidan, as described in the NY Times article referenced by Prof. Posner in a recent blog entry.]
Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades.  With the disappearance of the bipolar parity of forces on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. [True] Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the strong arm, the principle "might makes right. [Hmm][In the original, Putin did not use the words "rule of the gun".  He merely referenced the principle "he who has the force (power), makes the rule." This is another reference to all the instances where the U.S. disregarded UN and international law when starting a war.] They have come to believe in their exclusivity and exceptionalism [ahem] [unlike Prof. Posner, I can't be surprised or disagree with Putin here.  While exceptionalism in the U.S. is not expressed the same way as in Russia, there is no difference at the core between Russians and Americans both viewing themselves as exceptional and exceptionally "useful" to the rest of the world], that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle “If you are not with us, you are against us.” To make this aggression look legitimate, they force the necessary resolutions from international organizations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall. [Hmm][True. - This was the case with at least Kosovo, Afghanistan, Iraq, and Libya.]
[Prof. Posner] In other words, we did not act illegally but if we did, you did first. [This is indeed the only way to deal with nation-superpowers not subject to any enforcement mechanism.] The subtext, I think, is that the United States claims for itself as a great power a license to disregard international law that binds everyone else, and Russia will do the same in its sphere of influence where the United States cannot compete with it. [In other words, Putin has learned from the West, and from Clinton and Bush in particular.] [Russia's stated reason "to protect our compatriots" is arguably no worse than the pretext of "weapons of mass destruction" with respect to the U.S.' invasion of Iraq; but admittedly, Russia's PR/Marketing employed to sell its actions to the world still falls far short of that of the U.S.   One reason for this may be that Lenin killed too many lawyers back in the day, the effect (including lack of exceptional lawyering) lasting for well over 70 years now; plus a lack of PR/marketing/sales experience, such being unnecessary in the planned economy.]

Brilliant Article on Crimea by a long-time bi-lingual and bi-cultural U.S./Russia Journalist V. Posner

Mr. Posner's bio: click here.  For the original version of the article (in Russian), click here.
Crimea's Reunification with Russia and Other Matters
In reality, the reunification (or annexation -- the term depends on one's political persuasion) of Crimea with Russia is, in a way, the result of the now over-20-year relationship between Russia and U.S.  I am excluding Europe here because Europe represents only a geographical rather than a political unit. There was a time when Europe dreamed of a uniform Constitution, a "United States of Europe," capable of competing with the U.S. and China.  But those dreams have remained mere dreams.
When the USSR became history, it was tacitly understood, although not necessarily formally acknowledged, that Russia had lost (while America won) the Cold War.  So America came to expect that (a) the losing side would behave as such, that (b) it would begin to profess the western way and be receptive to the western mentality, and (c) that, even if it were to grow slowly bit by bit, it would never rise to its historical power.  Those expectations were not meant to be fulfilled.  Russia did not become receptive to either the western values or the western mentality.  This was not because Russia remained (and still remains) a captive of its Soviet past, but for a much deeper reason: the origins of Russia lie in the Eastern (Byzantine) Christianity, in contrast to the West, with its origins in Ancient Rome and Western Christianity.  Between the two mentalities and sets of values there lies a great abyss, likely unsurpassable. That's what I'd like to say first.
Second, Russia began to rise from its knees much faster than expected. This was at least in part due to the unexpectedly high oil prices.  Third, pretty soon it became apparent that Russia was not going to act as a country that was the loser.  The first clear sign of this appeared during the conflict that led to the decision to bomb Yugoslavia, a decision Russia strongly and vehemently opposed.  It bears remembering that neither the UN nor the EU gave their "ok" to these bombings.  The U.S. decided to do it, and the U.S. did it, telling Russia something like "it's ok, we can manage our affairs without you" (and I'll note parenthetically that the forced separation of Kosovo from Serbia, recognized by the West, did open the Pandora's Box, no matter what anyone wants to say now).  If we trace the chain of events starting with Kosovo, we will find an entire "bouquet" of disagreements between U.S. and Russia, whereby the U.S. would always act from the position of power (the most vivid example is NATO's advance to Russian borders in violation of the promise made by U.S. Sec. of State Baker to Gorbachev back in 1989).  Aggravation continued to grow on both sides: on the one side because the other did not "behave properly," and on the other side because it was shown no respect and was treated openly as a second-class citizen (read Putin's 2007 speech in Munich).
During this whole period of time, the United States tried (and not without success) to push Russia out of what Russia considered its traditional sphere of influence, including the Caucasus, Central Asia, Near East, and Eastern Europe.  Russia had no answer (read: force) to this, although its skillful use of America's mistakes enabled it to raise its rank in parts of the Arab World, such as Syria and Iran.  But what Russia could not tolerate under any circumstances was U.S. attempts to take Russia's place in the "brotherly Slavic nation" of Ukraine.  And the issue was not about just the fear that Ukraine would become a NATO member, with NATO forces appearing at the South-Western Russian border.  The issue was, and continues to be, the deep psychological perception that Ukraine is "ours" and Ukrainians are "our people."  Indeed, try to picture for a moment that Mexico just had a revolution, and a leader like Chavez took power and invited Russia to station part of its military along the U.S.-Mexican border.  Can you?  Do you see the picture?
In the meantime, the events taking place in Ukraine were destabilizing the country further and further.  It began under Kuchma and then continued under Kuchma.  The switch to Yushenko not only did not save Ukraine, it brought the country into total chaos.  During the next presidential election, Yushenko got only 5% of the vote, and that says it all.  It is clear that the election of Yanukovich, whom I consider to be a petty thief whose place is a prison cell and not presidential chair, was the result of a "protest" vote.  Under Yanukovich, the statehood of Ukraine got further reduced, virtually to zero.  Corruption in Ukraine reached such levels that corruption in Russia looked like child's play in comparison.  The negative attitude of the Ukrainian people continued to grow, and so...
All of this was perceived by Russia as another illustration of what has really been taking place in the world for the past 20 years: that the West (read: the U.S.) pushes its agenda while totally disregarding, by its actions (not words), any interests of Russia.  In this particular case, it did so in a territory that for centuries was part of the so-called "Russian World."  Only extremely short-sighted (without putting it more harshly) person could even doubt that there would be a response.  And a response did follow.  I cannot rule out that it was this particular outcome that was pursued, -- a serious new escalation that can be used to return, at least to some extent, to the psychological state of the Cold War.  I am not saying that this is the case, but I can't rule it out either: Putin's new role as "the most influential politician of the year", etc., has become all too visible.
And Crimea?  Need I even remind the reader that Crimea was never part of Ukraine?  The USSR Supreme Council that was to ratify Khrushev's decision to transfer Crimea from the Soviet Russian Republic to the Soviet Ukrainian Republic voted in favor of the decision with only 13 votes.  That entire Council, however, consisted of 27 members, so that there was no quorum (the other 14 were simply absent).  But the matter is not even about nitpicky lawyering.  Neither is it about the Kosovo precedent (although it is definitely a precedent, see above).  The point is that any negotiations with the West would be useless, that the West would backstab Russia no matter what, and that it is time to let the world know that one cannot treat Russia's national interests the way they have been treated.  That Crimea (not to mention Sevastopol) historically and ethnically was part of Russia and that Crimeans in their overwhelming majority leaned towards Russia was absolutely clear anyway.  And so the decision was made.
Next, we can engage in lots of discourse about "for" and "against." But I insist that any such discussion has to be based on knowledge and clear understanding on what actually was and what actually is.
On a personal note, I will add the following: the unbelievable involvement of the West in what is happening has nothing to do with its aspirations to protect human rights in Ukraine, nor with any noble desire to help the "poor Ukrainians," nor with any alleged goal to protect Ukraine's territorial integrity.  It has everything to do with strategic geopolitical interests.  And Russia's actions, in my view, are not at all guided by any necessity to "protect Russians, Ukrainians, and Crimean Tatars," but are guided by the same thing: geopolitical and national interests.
As for my personal feelings, I will say this: I don't like either of the two sides.  In the words of Shakespeare's Mercutio, "A plague o' both your houses!"