Self-Determination as Faux Remedial Secession in Russia’s Annexation Policies
When the Devil Wears Justice
“Circumstances require us to take decisive and immediate action. The people’s republics of Donbass turned to Russia with a request for help. In this regard … I decided to conduct a special military operation. Its goal is to protect people who have been subjected to bullying and genocide by the Kiev regime for eight years.”
(Putin’s declaration of war on Ukraine, 24 February 2022, translated by The Spectator).
These are certainly the words of a madman, according to some initial reactions by western diplomats commenting on Russia’s decision to invade Ukraine. But what is folly if not a difference of perspectives? Just as those who were dancing were ‘thought to be insane’ by those who could not ‘hear the music’, so Putin’s words declaring the ‘special military operation’ may sound unhinged to inattentive ears. Yet they reveal fine legal strategy. This post will provide an overview of such strategy, arguing that it conceals ‘remedial secession’ arguments behind self-determination. The post will then show that such arguments are unjustified in the situation of eastern Ukraine.
The Devil’s Advocate: Russia’s Approach to Self-Determination
Russia’s military campaign probably overestimated local support and underestimated Ukraine’s resistance, but assuming it started out of lunatic evil instincts would be naive. It is clear by now that the plan was long in the making and, notably, imbued with international law. Based on Putin’s address to the nation notified to the United Nations (UN), the intervention in eastern Ukraine aimed to halt the Ukrainian government’s alleged genocide against Russian nationals, the progressive Nazification of the country, and, more generally, the ‘absolutely unacceptable threat for Russia’ that is the expansion of the North Atlantic Treaty Organization (NATO). This was qualified as responsibility to protect and exercise of self-defence (Article 51 UN Charter). The operation is not a random, irrational display of force driven by imperialistic goals; rather, it is the fruit of a sophisticated strategy narrated through carefully crafted legal arguments – driven by imperialistic goals.
Shortly after the start, the emphasis quickly shifted from the language of self-defence to that of ‘humanitarian intervention’ against genocide, and the recognition of the independence of the ‘Republics of Donetsk and Luhansk’ smoothly transitioned to their annexation to the Russian Federation, sanctioned by the two referenda of September 2022. This argument is far from new; it is the same argument that was used to justify the ‘humanitarian interventions’, recognition, and tentative annexation of Abkhazia and South Ossetia in 2008, and Crimea in 2014, and reflects Russia’s long-standing approach to self-determination. As experts explained, the right to self-determination was conceived as a tool for a pan-socialist project to disenfranchise territories from bourgeois governance first, and from Western imperialism later. As a result, secession to join the Russian Federation is encouraged, while secession from it is not.
These two aspects – political and human rights-based – emerge clearly from current narratives that depict Russia as having the moral and legal responsibility to help realising self-determination of populations subject to atrocities at the hand of filo-Nazi NATO affiliates. An example is the ‘humanitarian policy of the Russian Federation abroad’ revealed by Presidential Decree No. 611/2022, according to which ‘humanitarian interventions’ are necessitated by the ‘attempts to belittle the significance of Russian culture and Russian humanitarian projects (…) discredit the Russian world (…) [and] numerous gross violations of human rights, more frequent cases of ignoring the [UN] Charter.’ The first argument (not without merit) is that many superpowers commit peace-threatening human rights violations, while also spreading inaccurate, one-sided anti-Russian propaganda; the second argument (which, ironically, reversely realises those fears) is that Russia is the benevolent defender of UN values from the wrongdoings of the ‘others’.
In Ukraine, the proposed narrative offers a ‘Nazi’ government attacking the local Russophone population desperately trying to escape this fate and join the Russian Federation. Narratives and reality are, of course, strictly intertwined and it is often difficult, if not impossible, to discern where the truth lies without being influenced by inherent biases and partiality of perspectives, especially in complex multi-ethnic regions affected by longstanding territorial disputes. Local populations are neither monolithic nor aligned with black-or-white, cold-war reminiscent views of the world. The decision to deploy a relatively small army and consequent difficulties and military defeats indicate that the Russian government had overestimated the veracity of its own narrative.
The Devil in the Detail: Self-Determination as Concealed Remedial Secession
The law behind the politics deserves attention. The analysis of the legal justifications described above discloses that from Georgia to Ukraine, the language of self-determination is used to advance remedial secession arguments. This doctrine accepts that the right to external self-determination confers the right to unilaterally separate from the parent state when a ‘people’ suffers serious and systematic human rights violations, under specific conditions. Russia explicitly endorsed remedial secession in its intervention in the International Court of Justice (ICJ) Kosovo case, although it did not accept its applicability to Kosovo.
This doctrine is controversial, and there are many compelling arguments against it, including that the principle of territorial integrity should always prevail. However, there are also good arguments in favour, both moral and legal, and the recent judgement of the Supreme Court of the United Kingdom on Scottish independence, which almost accepted remedial secession’s validity de plano, demonstrates that this doctrine is gaining traction and continues to resurface in the legal discourse when it comes to territorial modifications.
Notwithstanding its status under international law, the historical precedent and official language show that Russia seeks to justify the annexation of Ukraine’s eastern provinces through remedial secession, namely through a humanitarian intervention to support local Russian populations in their struggle for independence from a genocidal oppressor. One may, thus, apply the remedial secession doctrine to determine whether – by this rule – Russia’s legal position would hold.
The Devil’s Own Hell: The Aggression on Ukraine Fails Remedial Secession Standards
As the Russian Federation argued in the Kosovo case, remedial secession should be ‘limited to truly extreme circumstances, such as an outright armed attack by the parent state, threatening the very existence of the people in question’. However, Russia’s allegations of genocide seem to be rhetorical propaganda. As Quénivet noted, the Organization for Security and Co-operation in Europe has been monitoring the situation since 2014 and ‘has never reported anything remotely resembling Russia’s claims’, and in March 2022 the ICJ stated that there was no evidence substantiating the allegation that genocide had been committed on Ukrainian territory (para. 59).
The lack of this primary condition may be sufficient to exclude a right to secede in the situation de quo. Yet, other reasons concur. The doctrine of remedial secession as expression of external self-determination requires the intention to secede to be genuinely and freely expressed by the majority of the affected population. Russia claims that the intervention was solicited by separatist groups’ representatives, but this fails to demonstrate the will of the majority of the local population. Two referenda in September 2022 were overwhelmingly in favour of annexation to the Russian Federation, but were conducted under military occupation and without independent observers, and declared ‘invalid and illegal under international law’. The referenda were arguably manipulated to achieve the desired outcome, as voting demographics were engineered through forcible transfers, mass deportations, and a ‘Program of Voluntary Resettlement’.
Because of its remedial nature, separation should be the last resort, and less radical solutions should be attempted first. In his speech in February, the Russian President declared that for ‘eight years (…) [Russia has] done everything possible to resolve the situation by peaceful, political means. All in vain.’ This demonstrates the effort to fit remedial secession requirements but fails to deliver concrete evidence or examples. Arguably, the invasion’s rapid escalation all the way to Kyiv was – at least – disproportionate and excludes good faith efforts. The preconditions for a right to remedial secession are thus not met.
Two last arguments can be added in favour of non-recognition of remedial independence/annexation. First, under the remedial secession doctrine, the new entity’s recognition can be subordinated to commitment to respecting minority rights of residual ethnic groups. This is contradicted by documented violations of human rights and humanitarian law, including the mentioned attacks against Ukrainian civilians and even children. Second, remedial secession should be upheld through collective recognition, and not individual intervention. In the words of the ICJ (para. 59), that the Genocide Convention authorizes unilateral use of force in another state’s territory to prevent or punish genocide ‘is doubtful’. Even if it did, preference should be given to collective actions and the hypothetical legality of extraterritorial unilateral measures would be subject to prior referral to the competent UN organs (Article VIII Genocide Convention), provided their inaction.
This analysis shows that even by accepting remedial secession as valid under international law, Russia’s aggression against Ukraine would not be justifiable. None of the conditions are met, and the reaction has to be considered disproportionate, unlawful, and non-recognisable. Portraying Russia as the irrational villain of the story would be wrong; instead, the country’s strategists attentively framed operations through arguments, language, and instruments of international law, and precisely thanks to this, violations can be exposed.