Aggression and the ‘Civilizational Turn’ in Russian Politics of International Law

When waking up on 24 February, a glance at the news made it clear that our worst fears have been realized: Russia is waging an aggressive war against Ukraine. On the same day, we spoke with Lauri Mälksoo about Russian aggression, attempts by the Kremlin to justify its illegal violence, and the “civilizational turn” in Russian politics of international law. Lauri Mälksoo, professor of international law at the University of Tartu (Estonia), is considered one of the most distinguished experts on Russian approaches to international law. His much-received book with this very title was published with OUP in 2015.

Dear Lauri, against the background of your many years of academic research on Russian politics of international law: to what extent did the Russian decision to invade Ukraine surprise you?

There was a game-changer in the current Russian decision to invade Ukraine: the tactic of steady high-level pre-warnings that the US and other leading Western States gave before it, based on their intelligence, namely that Russia was about to militarily attack Ukraine. For example, in 2014, Russia managed to catch Ukraine and the rest of the world by surprise, using its already existing military bases in Crimea, with the camouflage of its forces, organizing a snap referendum, etc. Now in 2022 the Western pre-warnings made such a covert tactic of takeover difficult to implement. The Western tactic also made it harder to create convincingly a so-called false flag operation a la Soviet ‘shots of Mainila’ against Finland in 1939. The recognition of Donetsk and Luhansk ‘People’s Republics’ by Moscow would not in itself have been so surprising as Russia already used this technique in Abkhazia and South Ossetia in 2008. But a large-scale and overt Russian war against Ukraine as a country as it was unleashed on 24 February 2022 still surprised me. Our generation has been raised and trained in the spirit that Article 2 para 4 of the UN Charter is the most important legal norm of international relations. Any overt violation of this norm remains shocking.

The Russian invasion is a crystal-clear aggression. Nevertheless, Vladimir Putin invoked international law in his televised speech on 24 February to justify his own violence as ‘self-defence’. What does Putin’s justification of war tell us about current Russian politics of international law?

In the same televised speech, Putin also said that many international norms have in the meantime been violated and become obsolete. He also referred to the principle of the balance of power of which I wrote critically in the Crimean context in an EJIL essay in 2019. Moreover, beside referring to international law, Putin referred to truth and justice, essentially suggesting to his Russian audience that these were on Russia’s side in this war, whatever else would be said. President Putin knows enough about international law to know that Russia has had a relatively restrictive concept of self-defence and has been a constant criticizer of US attempts – for example during the Presidency of George W. Bush – to extend the right to self-defence to pre-emptive situations, i.e., not only ‘if an armed attack occurs’ (Art 51 of the Charter). At the same time, Russia’s military doctrine mentions that Russia is entitled to use force for the defence of its citizens abroad. For me, the decision to invade Ukraine has nothing to do with genuine right to self-defence as we know it in international law since 1945; it is a risky decision to attempt to change the course of world order. Putin invoked in his speech Russia’s necessity on a global scale: if Russia retreats further geopolitically, it will no longer have an independent future, etc. However, we should keep in mind that this precisely is how Adolf Hitler argued, from Nazi Germany’s perspective, about the Soviet Union in 1941; namely, that pre-emptive strike was necessary for certain higher reasons. Such a thinking is not compatible with international law and States’ rights as we know them.

In your book Russian Approaches to International Law (2015) you wrote about a ‘civilizational turn’ in Russian rhetoric. What exactly do you mean by this?

Russia has since at least the 19th century had a permanent internal argument about the question whether it is a European country or not. The civilizational rhetoric emphasizes Russia’s differences from Europe and the West and portrays the West – currently especially the US – as immense civilizational danger. Seeing the world in terms of civilizational conflicts makes having universal international law quite difficult, perhaps impossible as ‘thick’ international law. Thus, Article 2 para 4 may be a universal norm in the UN Charter but a ‘country-civilization’ may still not want to respect it in its geopolitical backyard if it feels that a dependent nation is illegitimately (from civilizational perspective) drifting away from its Grossraum. It seems to me that President Putin’s core accusations against Ukraine are also of this kind: accusing them of betraying one’s genuine civilization (being by fate in the same Grossraum with Russia). Another area of international law in which the civilizational rhetoric has come to play an important role is human rights. Already in the Orthodox Declaration of Human Rights (2006) which was initiated by the current Patriarch of the Russian Orthodox Church, Kirill, is expressed a civilizational critique of ‘Western’ human rights.

To what extent does the recent Russian aggression prove this ‘civilizational turn’?

At the surface, the main justification about the Russian invasion in Ukraine may be geopolitical and military such as stopping NATO’s further enlargement. But it also has strong civilizational components, e.g. President Putin’s previous articles arguing that Russia and Ukraine are essentially one and the same nation. Putin would not argue such a thing about the Baltic States, for example. But about Ukraine, Putin argues essentially that the country is or must remain a ‘Russian state’. (Historically, the Versailles Peace Treaty of 1919 had a chapter on ‘Russia and the Russian States’.) In such ‘civilizational’ cases, treaties too acquire a different meaning than foreseen in universal international law. For example, Russia ratified its border treaty with Ukraine in 2003 in which Moscow recognized as Ukrainian Crimea, Donbass and everything else based on the borders at the time of the dissolution of the USSR. But for Moscow, there was an unwritten assumption in these treaties: Ukraine would remain part of the geopolitical family, part of the Russkyi mir. When this assumption was about to change in what the Ukrainians call the revolution of dignity, previous treaties with Ukraine lost their validity for Moscow. I would say that the civilizational (re-)turn in Russia has not been a single event but a process which has lasted already more than 10 years now. Already in the case of Georgia in 2008 I think that Moscow’s thinking was not only influenced by purely military and geopolitical ideas (NATO, etc) but also civilizational ones. To simplify, there should be no other supreme master than Moscow in the Christian Orthodox world.

Already regarding the illegal annexation of Crimea in 2014, you wrote that Russian actions and rhetoric contradict everything that Russian international law scholars had written on the legality of the use of military force. Can you explain this in more detail?

What I meant was that between 1999 (NATO intervention against Yugoslavia) and 2008 (Russia’s 5 days’ war with Georgia) and 2014 (Russia’s invasion of Crimea and covert invasion of Donbass), Russia’s experts of international law had strongly accustomed to speak about jus ad bellum in the way that the US is the country which presents the danger to the UN Charter. The examples of Kosovo 1999, Iraq 2003 and Libya 2011 were repeatedly mentioned in this context. Russian experts of international law used to take a very conservative line on jus ad bellum. At the time, they probably could not imagine that Russia itself would cross the universally agreed lines of jus ad bellum. But the specific feature of Crimea 2014 was that Ukraine as country was taken by surprise and the Ukrainian army did not resist militarily (in Crimea; it started to resist in Donbass though); this enabled Moscow to keep a parallel narrative that Crimea was not about use of force but self-organization, self-determination, etc. Nevertheless, I think that since 2014 and especially now Russian international lawyers are simply confused because the government has taken U-turns in its rhetoric on jus ad bellum: from quite conservative approach to permissive, at least in one’s civilizational ‘backyard’.

To take a broader historical perspective: how does Russian international legal doctrine traditionally relate to the idea of ‘aggression’?

Unlike post-World War II Germany, Russia in my estimation never came to a fully honest conclusions through of the origins of World War II. President Putin has actively rejected the negative role of the Soviet Union with the secret protocol of the Nazi-Soviet Non-Aggression Pact of 1939 or justified it in the sense that the annexations carried out in 1939/1940 gave to the USSR necessary strategic depth when Germany attacked in 1941. I imagine that people like President Putin must also think that in big questions of international order, might ultimately does make right. In the end, what made the world ‘forget’ by 1945 about the Nazi-Soviet Non-Aggression Pact’s secret protocols and for example the fact that the USSR had been expelled from the League of Nations at the end of 1939, because of its war against Finland, was that the Soviet Union was stronger; it won and co-created the new world order in 1945. I am afraid President Putin may now think similarly about Ukraine: we’ll create new facts, you will criticize us a lot and fight back but when we are successful, there will eventually be acceptance of such new facts. Moreover, as permanent member of the UN SC, Russia (who is not party to the Rome Statute) does not accept the idea that aggression could be defined by some sort of independent international body or prosecutor. A propos civilizational influences, Baron Michel de Taube in his Hague Academy lectures in the 1930s pointed out that according to some Byzantian Emperors and teachings, all wars that Byzantium started were by definition just. Taube says that it was a different theory from West European (Catholic) bellum justum theory. This point deserved a reflection.

Besides the claimed self-defence, historical narratives also play a major role in Putin’s justification of war.

I think the main reason why Putin started the overt war against Ukraine is that historically speaking he is concerned about further disintegration of Russia. If Ukraine can be successful as country and be a genuine democracy (which today’s Russia isn’t), it means that not all ethnic Russians or Russian speakers need to live in the same State which was historically a huge Empire. It is in this, deeply historical, sense that Putin sees his current decision to go against Ukraine militarily.

It is important to distinguish between the political elites in the Kremlin and other Russian voices. With regard to Russian legal scholars: are there any openly critical voices about Russian aggression?

Of course, there are Russian intellectuals and international lawyers who are currently deeply shocked about the decision to attack Ukraine, beyond the annexation of Crimea and the initially covert operation in Donbass. But I suspect that it is very difficult for them to speak up publicly on this matter right now, for various reasons.

To conclude with a prognosis: How do you see Russian politics of international law developing in the future?

We could ask the same question not just about Russia but about the world (of international law) in large. What will become of the United Nations in these circumstances? Also, in Putin’s speech, there was a warning that Russia might use unprecedented responses if outside powers would intervene in the conflict with Ukraine. We may ask how far the world has come to, so that we must endure these kinds of threats (and this is not even the first time). In anticipation of events in Ukraine, Putin’s press secretary Peskov once said that Russia never attacked another country. This is not true historically, of course – for example, when the territories of Estonia and Latvia moved from Sweden to Russia in 1721, the Great Nordic War which introduced these changes was started by Russia in 1700. Right now, I would simply say that a lot in terms of future will depend on the outcome of this war. For example, I am very curious about how States will vote at the UN GA. In 2014 (re Crimea), 100 States out of 193 UN member States sided with Ukraine but a surprisingly high number of States either abstained (e.g., China) or did not even vote. Prohibition of the use of force is a fundamental norm in international law and if States are unable to show solidarity in cases when such a basic norm is violated, this puts the very foundations of the international organization in question.