On Wednesday, 15 January 2020, Vladimir Putin proved once again to his global and Russian audiences that he is the master of strategic surprises at least when it comes to the timing of his unexpected moves. During his annual speech to the Federal Assembly, he proposed changing the Russian Constitution in a fundamental way that would allow him to stay in power under a number of different forms past his current term of 2024. Such potential changes had been long anticipated as a way of prolonging his political life, but announcing them so early in the game has taken even the keenest Russia watchers aback. While the world is focused on trying to figure out how those changes will affect the structure of power within Russia itself, the primary change that Putin has proposed – amending the Russian constitution to reflect its supremacy over international treaties – will impact not only what Russia post-2020 will look domestically, but even more importantly – how it will behave internationally. This is not an overnight whimsical decision of Putin’s, but the latest stage in the evolution of a long process of Russia’s selectively detaching itself from the international legal system and its established norms, that was first manifested openly with its hybrid aggression against Ukraine, and then continued with Russia’s brutal involvement in Syria and elsewhere across the globe. Each step of the way the Kremlin has been able to justify and “make legal” its most heinous crimes against its neighbors and humanity, as a whole, by manipulating international law through a process known to the experts as “lawfare”. The leadership of Russia in its various imperial iterations – from the Tsars to the Soviets – has always been extremely skillful in leveraging the law to expand their interests internationally, and suppress dissent domestically. Still, there has rarely been a ruler in Russia’s history who has taken the letter of the law so seriously, as Putin does, while completely disregarding its spirit. Under Putin the law has been twisted into its malicious twin – lawfare – to become one of the central domains of what we now call Russian hybrid warfare.
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Russian lawfare has not been only manifested on the battlefield, but has also been elaborately underpinned theoretically by a host of Russian legislators and security officials, making it effectively a matter that transcends the framework of the law itself, and touches upon all aspects of Russia’s activities. Putin’s call for having Russia’s constitution supersede international law, for example dates back to 2015, as the leading Russian practitioners in the field jumped onto the lawfare battlefield to provide scientific substantiation of Putin’s policy initiative. For example, in a now obscure, but extremely detailed legal article dating back to December 2015, the Chairman of Russia’s Investigative Committee, Aleksander Bastrykin argued vehemently in favor of such a change, by calling the limiting by international law of Russia’s sovereignty “a legal subversion”. Bastrykin, of course, blamed it on the “American and foreign experts” whom he accused of skillfully injecting the norm of the supremacy of international law over Russia’s national legislation into the first RF constitution that was adopted in 1993. His, and other of his top-level colleagues’ writings over the course of the last four years did not remain only at the level of legal theory, but found their practical implementation in the various steps that Russia has taken to push against international law when it goes against its own expansionist interests or authoritarian domestic agenda. For example, this allowed the Russian state to disregard multiple legal rulings against itself at various international courts – from those in favor of the Yukos shareholders, the company broken by Putin in 2004, to those won by Russian citizens at the European Court of Human Rights.
Finally, on 17 October 2019 Putin decided to formally pull Russia out of Protocol 1 of the 1949 Geneva Convention that provides for the protection of the victims of international armed conflict. With the Russian army constantly committing atrocities against civilian populations in Ukraine and Syria, and active in more and more countries across the Global South, the world should expect more of those international crimes to be committed by the Kremlin in the coming years, with any attempts at an international investigation to be dismissed as “abuse of the commission’s powers for political purposes on the part of unscrupulous states”, as Putin’s letter put it.
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The Kremlin’s lawfare so far has remained largely un-contested, due to Russia’s enjoying veto power at the UN SC, and the general fluidity of the international legal system that allows some of its norms and rules to be bent and twisted by powerful authoritarian regimes. With these new changes of the constitution, the Russian leadership will be able to further shield itself from international legal prosecution. Putin’s victory by manipulating Russia’s domestic law and his domestic re-shuffling is designed to prolong artificially his political life and allow him to exert even more control over the Russian domestic political system. There is little, if anything that the West can do to counter the effects of that domestic re-shuffling. The West can, and must do more, however, to prevent the Kremlin from becoming invulnerable to the norms of international law, or other states will follow suit and challenge those norms in their own perceived spheres of influence, with all the dramatic consequences for the rule of law and human rights globally.
Mark Voyger, scholar at the Penn Biden Center for Diplomacy and Public Engagement, Washington, D.C.