Illegal But Not Unlawful: What Crimea says about Putin's Russia

Rome, 8^th April 2014

 

 

Illegal But Not Unlawful: What Crimea says about Putin’s Russia 

 

 

On 18^th March before the assembled deputies of both houses of the country’s parliament, Russian President Vladimir Putin signed into law an annexation treaty with the recently proclaimed independent republic of Crimea. The setting—the Kremlin’s marbled and gilded tsarist-era St George’s Hall—was gaudy and awkward at times, but on the whole stately and not undignified.

 

Of course, the United States and European Union have repeatedly called both the treaty and the referendum that preceded it ‘illegal’ and ‘illegitimate’. But everything about the symbolism of that afternoon in the Kremlin seemed designed to convey quite the opposite message: that this was the act of a state governed by the rule of law.

 

This seems deliberate and part of a broader strategy. Writing last week in Foreign Policy, Katie Engelhart noted the elaborate lengths to which Putin has gone to give his annexation of Crimea an aura of legality. [1]  

 

Because the Russian constitution actually bans the admission of new territories without Moscow’s signing a formal inter-state treaty from which they hope to secede, on 28 February the Duma introduced a bill that would have done away with the need for such a treaty in cases where: 1) a state had failed to maintain law and order in the territory seeking admission (as, in fact, Russia claimed Ukraine failed to do in the aftermath of the Kiev revolution); 2) and where the people had expressed their desire for admission to the Russian Federation through a ‘democratic referendum’.

 

As Engleman points out, however, the Council of Europe’s legal commission strongly criticized the proposed legislation as unconstitutional. Surprisingly, perhaps, this was enough to prompt the Russian leadership to drop the bill and opt for another route to legalize Crimea’s annexation.

 

This was by having Crimea declare independence from Ukraine, which it duly did just before the referendum on accession to the Russian Federation on 16 March. As an independent sovereign state, Crimea was then able, two days later, to sign its own accession treaty with Moscow without any reference to Ukraine.

 

That the West still called all of this illegal did nothing to diminish Putin’s solicitude for the law. On the contrary, as Engleman notes, he immediately sent the treaty to the Constitutional Court for judicial approval and to the Duma’s upper and lower houses for ratification by the legislature. Both bodies enthusiastically endorsed it.

 

And Engleman is surely right in suspecting that this annexation will be but the first of many: the same legal script could be followed in Abkhazia, South Ossetia and Transnistria which are all already ‘sovereign states’ in theory but Russian territories in practice.

 

If I object to anything in Engleman’s analysis, however, it’s her idea that Putin’s new-found preoccupation with the law is just a charade, a feigned ‘legalism’ designed to win domestic support for the annexation and mollify the West.

 

She writes, for example, that this is all ‘part of a broader trend of sham legalism that was a hallmark of Soviet despotism and remains firmly entrenched in the Kremlin today.’ For confirmation she cites Maria Lipman, chair of the Carnegie Moscow Center's Society and Regions Program:  ‘Putin has this obsession with the letter of the law, with no regard to the spirit.’

 

To me, there are two problems with this view. The first is that it’s not Putin’s punctilious observance of the legal niceties that explains the popularity among ordinary Russians of his activities in Crimea citizens—national feeling seems to have sufficed. As for the West, the Kremlin must have noticed that it’s beyond mollification on this one.

 

There’s a problem with the notion that Russia is just reverting to type. The Soviet Union never tolerated referenda of the kind Putin relied on in Crimea. Neither did it remotely tolerate anything like the cycle of elections that have become the norm in post-Soviet Russia. And no tsar ever made the duma as essential a partner in power as Putin has done—and certainly not Nicholas II whose 1905 Manifesto brought the first Russian parliament into existence.

 

Rather, the assumption that Putin’s legalism is purely a charade is wrong—a failure to understand what’s really going on in Russia that has come about through the constant imposition of Western analytical categories on Russian history and experience.

 

I have compared Putin to the eighteenth-century empress Catherine the Great before. Apart from extending Russia’s frontiers deep into Poland and down along the shores of the Black Sea, Catherine is also remembered for her legal reforms. An autocrat, certainly, Catherine none the less conceived of her powers in terms that perhaps throw some light on the way Putin understands the origins and purpose of his own.

 

Consider, for example, how Russia-expert Geoffrey Hosking describes Catherine’s ‘vision of the rule of law’:

 

She believed that law is a means by which the state mobilizes the resources of society to augment its own strength and wealth and to provide for the welfare of the population. It was not in her eyes an impersonal force mediating between autonomous and sometimes competing social institutions, but rather an instrument through which the monarch exercise authority and puts moral precepts into effect.

 

Hosking then quotes the empress herself. According to Catherine, ‘In a State, that is, in a Collection of People living in Society where Laws are established, Liberty can consist only in the Ability of doing what everyone ought to desire, and in not being force to do what should not be desired.’

 

This seems a decent description of Putin’s own inclinations, where recent laws outlawing the promotion of homosexual activity or stricter bans on the use of ‘offensive language’ in print or online are presented as protecting the wider Russian community from harm.

 

Perhaps, like Catherine, Putin sees such laws as helping Russians to do what they ‘ought’ to desire and, in that sense, as liberty-promoting—a notion outrageous to us but which, as Hosking points out, nevertheless has its roots in the European Enlightenment. 

 

Episodes like last month’s Crimea treaty-signing remind us that, like Catherine, Putin also seems to believe it important to have, as Hosking puts it, ‘the law validated by representatives of her peoples.’

 

This might also describe the Duma’s role in Putin’s Russia.

 

We see a rubber stamp. From the point of view of the Russian legal tradition embodied in Catherine’s reforms, however, the Duma might be said to play an essential role in the ritual of power, giving visible expression to the covenant between ruler and people whose object is not the promotion of the rights of individuals or the relative welfare of competing social groups but the health and prosperity of the nation as a whole.

 

This isn’t a pantomime emptily aping reality; it’s a ceremony designed to imbue it with significance. Ask a Catholic priest about the difference.

 

Where does this leave us?

 

Let’s go back to the Kremlin. Dressed in a slim black suit and flanked by the double-headed eagle of the presidential insignia, Putin came across as a kind law-giving basileus serenely restoring order to his kingdom with a flourish of his pen and his own unassailable strength of will. All in all, we’re a long way from the bare-chested, tiger-hunting strong-man we’ve come to expect.

 

I think this is a sign of things to come. Expect more law-making from Putin’s Kremlin—but don’t necessarily expect Russia to become more liberal as a result. And to understand what it all means, do expect to turn to Russian, rather than Western, historical experience.

 

Russia isn’t the West. It’s Russia.

 

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[1] Englehart’s article is here: (http://www.foreignpolicy.com/articles/2014/03/24/putin_legalism_crimea_annexation)