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Putin has declared war, but not just against Ukraine, with his proposed constitutional changes

Halya Coynash

Russian President Vladimir Putin has added Zakhar Prylepin, Russian writer and Donbas fighter to the so-called ‘working group’ for the constitutional amendments he announced on 15 January.  Prylepin’s inclusion is a grave affront to all Ukrainians, however the changes Putin is planning are likely to have even more serious ramifications for Ukraine.  While well-known Ukrainian journalist Vitaly Portnikov is doubtless correct in saying that Putin’s plans are akin to a declaration of war against Ukraine, they are also an assault on international law and, therefore, a challenge to the European structures and leaders who are increasingly seeking so-called ‘dialogue’ with Russia.

Most western commentators have viewed the announced changes in terms of the role Putin is likely carving out for himself after his fourth official presidential term ends in 2024.  Since nobody imagined he planned to relinquish power, how he retains it may prove less momentous than the fundamental shift in Russia’s position that he declared.

Putin is proposing to guarantee in Russia’s Constitution the priority of that document “in our legal realm” This means that the requirements of international legislation and agreements, as well as the decisions of international bodies can function on Russian territory only in that part which does not result in restrictions of human and civil rights and liberties, and does not contradict our Constitution”.

Putin began moving in this direction back in 2015 when a law was passed allowing Russia to flout the European Court of Human Rights by claiming that it’s judgements are in violation of Russia’s Constitution.  In November 2016, literally the day after the International Criminal Court’s Office of the Prosecutor recognized Russia’s occupation of Crimea as an ‘international armed conflict’, Putin announced that Russia would not be joining the International Criminal Court.  International media widely reported that Russia was leaving ICC which was not strictly correct. Since it had never ratified the Rome Statute and was not, therefore, a member, he could only petulantly say they didn’t want to join. In October 2019 he did, however, revoke an additional Protocol to the Geneva Convention on the protection of victims of international armed conflict which Russia’s Soviet predecessors had ratified.  

Russia may have become accustomed to flouting international commitments with relative impunity, however liability for war crimes, crimes against humanity, etc, cannot be removed by simply declaring withdrawal from or unwillingness to ratify international agreements.  Russia can refuse to cooperate as much as it likes with an ICC investigation, however any individuals suspected of involvement in war crimes could still end up before the Court.

Until now, Russia’s outrageous opt-out clause when it didn’t wish to comply with a European Court of Human Rights [ECHR] judgement has been used very infrequently.  This, however, will almost certainly change after the new constitutional amendments that Putin is proposing. 

As Portnikov points out, Putin will ensure that Russia’s illegal annexation of Crimea is firmly set down in this revised Constitution, with this also binding the hands of Putin’s successors.  Russia’s President has thus, Portnikov says, “programmed the conflict between Russia and Ukraine for years or decades, even after he renounces power.  This conflict will now be strengthened not only by the military, economic and political scope of the Russian regime, but fixed in Russia’s legal field, in its Constitution.”

Portnikov goes on to suggest that these changes “will allow the Kremlin to prepare for new conflicts and seizures and no longer fear either international condemnation or Ukrainian suits.”

In relation to individual applications to the European Court of Human Rights, this is probably true.  The Court, after all, cannot recognize Crimea as anything but Ukrainian territory and Russia will therefore claim that its judgements breach its Constitution, even if the latter was passed in full awareness that it was violating international law and international agreements.

With other international bodies, the situation will hopefully not be as simple as Putin is assuming and not only because a country cannot so easily shrug off charges of war crimes, etc.  Putin may be declaring war on Ukraine through this move, but he is also placing Russia in conflict with the United Nations, all international bodies and democratic countries.  This is true as a general principle, since no country can be allowed to claim its ‘right’ to violate international law.  The situation, however, will become especially acute if, as expected, Russia seeks to ‘enshrine’ its illegal land-grab in the Constitution.  The west’s reaction to Russia’s invasion and annexation of Crimea was pitifully weak in 2014, and became even weaker in June 2019 when the Parliamentary Assembly of the Council of Europe capitulated to Russia and allowed its return, despite all the reasons for the sanctions against it being still in place.   Those who supported Russia’s return then and who advocate ‘normalization’ of relations with a country waging undeclared war against Ukraine repeat, mantra-like, the claim that ‘dialogue is needed’.  What dialogue would they propose – save a second shameful Munich Agreement -  once Russia flagrantly asserts its ‘sovereign right’ to spit on all international law?   



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