11 March 2022

Russians

“That dream-like feeling of the arm, raised to strike destruction, feebly sinking down.” Not only the supreme commander suddenly had this mysterious feeling. The entire invasion army, until then so superior and unstoppable, felt it too. Why? Hard to say. They had neither won nor lost the battle. They were still on the advance. They were about to occupy the capital of the invaded country. And yet they had already lost. Their doom was already sealed, theirs and that of their empire, “on which at Borodino for the first time the hand of a morally stronger adversary had been laid.”1)

It is a Russian book that tells this story. I was twelve when I first read it and hardly understood a word. My Russian grandfather expected this of me: I was old enough, I could read after all, so what should I read if not this book of books? So I read it, in German translation. My Russian grandfather had been 16 when he fled from the Red Army all alone across Siberia and China to Europe, and had little patience with the idea that I might be too young for it. An old man with a waistcoat, a tie and a pocket watch, who insisted in his Russianness throughout his Bavarian exile with the melancholy friendliness of the emigrant, who sang odd chizhik pizhik songs to us children and blessed us with the sign of the cross on the forehead when we parted, and whom we did not understand, but loved very much.

It is a European book, a universal book. In the society it describes, there are French, Germans, Balts, Russians who run about and commit dreamy mischief and foolishness and, from the lowliest ensign up to the Emperor Napoleon, haven’t the foggiest clue of what is going on. But one side has invaded the other, and the other defends itself. And that is what gives the whole flurry its direction and its momentum and weaves it into a huge narrative, and at the end one empire falls and another finds strength and glory, and history is written. At least that’s how it’s told, in retrospect, half a century after the facts. It is a book of the 60s of the 19th century, in this respect itself history.

We have no temporal distance to the war in Ukraine: this is the present. And yet: isn’t the Ukrainian nation, so much in discord with itself until recently, indeed being built in the unifying struggle of the morally stronger against the aggressor and invader? And don’t we, as Europeans, feel a tremendous increase in strength ourselves? All these things that seem suddenly conceivable and possible? All the particularities and quarrels and misgivings suddenly melting away and a European nation, if not an empire, emerging to powerfully assert itself in the global game of the great powers?

Many would like that. Not me. I dread the idea of a European empire. I dread the idea of any empire. But what do I know. I am just another guy that runs about and commits mischief and foolishness, and at a very remote corner of the action, too. And yet: one side has invaded the other, and the other defends itself. We cannot know what story future historians will tell of this time. But we do know, to adapt Clemenceau’s famous words at Versailles in 1919 about Belgium and Germany, that they definitively will not say that Ukraine has invaded Russia.

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In support of the Centre of Policy and Legal Reform, a leading Ukrainian think tank, the Director of the Constitutional Law Program, Dr. Yuliya Kyrchenko, has issued a request for technical assistance from constitutional law experts from other countries, in relation to the following issues in democratic states (with a focus on states where there was actually a war/conflict):

  1. legal regulation of martial law in the aspect of restriction of human rights;
  2. the activities and organization of parliaments during wartime;
  3. the activities and organization of public administrations during wartime; and
  4. activities and organization of justice during wartime.

Please contact Julia Kyrychenko (juliakyr@gmail.com) or Sujit Choudhry (suj@choudhry.law).

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This war is no Stahlgewitter and forge of nations. It is a terrible crime. What is happening in Kharkiv and Mariupol is mass murder by military means. People are fleeing by the hundreds of thousands, from Ukraine and from the Russians, and many of them to Berlin. The criminal’s name is Vladimir Putin, and unlike Napoleon, he threatens with nuclear bombs. Whether and to what extent the Russian people want and legitimize Putin’s policy, including his threat of nuclear war, cannot be determined, absent democracy. But as far as we know, he does have enough support in the population that he can rely on his orders being obeyed. As long as that is the case, this all remains collectively attributable.

And yet: “the Russians” are also a lot of individual people who run about and commit dreamy mischief and foolishness and are afraid and lied to and seek to enrich themselves and to stay out of trouble. Or they do none of that but resist and protest, taking risks we Western European cushion warriors cannot even begin to imagine. There are obviously too few of those to change the direction of the attack. But nevertheless they exist. People are fleeing Russia too right now. They need protection. Will they find it with us now?

A Russian voice

Legal academia is a global community of those who seek to enhance in discourse knowledge about the law in the world. Does that world still include Russia? What should this community do with its Russian members? I have interviewed a Russian law professor from an (so far) internationally respected Russian law school today. I cannot mention his name, that would be too risky.

What is your situation right now? 

My situation can be much better. Independent teaching and research in law, and especially public international law, is de facto criminalised. Many people in the academia, including myself, are shocked and frustrated. There is no way to do research and have academic discussions in secret chats filtering every word. Also, many people are very vulnerable economically. And leaving the country is a privilege of the few.

What can you tell us about your personal situation at this moment?

I am abroad without much resources. My bank cards stopped working and I receive every day letters terminating services, including academic. Russian students also experience significant difficulties everywhere. This is collective responsibility and current sanctions are indiscriminate. But all this is very minor issue in comparison with thoughts of Ukrainian friends. This is the reason why it’s utterly difficult to complain.

How is the war in Ukraine perceived among legal academics in Russia in general? Is there still such a thing as a shared perception of reality among Russian and Western members of the academic community?

It’s difficult to say, as there is no credible research on this. Also, almost the entire legal academia is public and its leadership is totally dependent on the state. For this reason, one shouldn’t take „official“ statements of academic superiors too serious. My view is that in 2014 after the occupation of Crimea and the start of the conflict in Donbass those who opposed the official line were clearly in minority. What prevails today is science due to fear. Of losing one’s job and even being prosecuted. Today it is different. It’s no more a hybrid war. And of course instinctively people cannot openly support the war which is so manifestly wrongful. So I would say majority don’t believe and don’t support aggression, but there are just few who openly called this out. Still there are thousands of signatures under the open letters against the war with legal qualifications of Russian lawyers including academics. Yes, the difference with Western community is unfortunately still striking. The most disappointing is the culture of fear and self-censorship. And it did not start today.

Is it a difference on facts or on the law?

Yes, official Russia and the West have absolutely different factual realities regarding Ukraine. Or more precise, Russian leadership lives in a parallel world. The most striking example is the characteristics of the Ukrainian government as nazi, and it seems that some people really believe in this dehumanising myth. Legal academics however have much more sources and skills of critical thinking to avoid such delusions than the general public. As fas as the law is concerned, the problem started with Russia’s own legal system that was brutally raped in 2020. Scholars, the academic community were helpless to prevent this, although a huge majority was against dismantling of the constitution. If Russian democracy were not destroyed (with tacit acceptance in the West) we would not have a war in the middle of Europe today.

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Am FB Rechtswissenschaften, Professur für Völkerrecht und Europarecht (Prof. Dr. Simon), ist im Rahmen des SFB/Transregio 138 „Dynamiken der Sicherheit. Formen der Versicherheitlichung in historischer Perspektive“ befristet bis 31.12.2025 eine

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(Teilzeit 65 %, Entgeltgruppe 13 TV-H) zu besetzen. Voraussetzung: abgeschl. rechtswissenschaftl. Hochschulstudium. Eingangsfrist: 15.04.2022
______________________________________________________________________Die vollständige Ausschreibung finden Sie über https://uni-marburg.de/stellen-wiss oder über den nebenstehenden QR-Code, Kennziffer fb01-0005-wmz-2022.

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Are there any legal academics of good standing who actively try to come up with serious theory designed to justify Putin’s actions, the way Carl Schmitt did in the 30s? Or is it all based on fear and distorted perception of reality?

So far no. We don’t have ANY serious academics texts justifying legally Putin‘s assault on Ukraine. What we have are official statements like the one of the Russian associations of international law or very few blogposts which either develop tu quoque or „what about“ arguments or create illusionary discourse in the “Western” academia. So Putin doesn’t have his Carl Schmitt, but unfortunately he has Goebbels. This is Putin’s propaganda replacing legal analysis. I would say that in 2014 there were at least some serious attempts to justify Putin’s action in Ukraine.

And those who did justify that are silent now? Do you observe a change of mind?

Yes, there is a clear change in many, if not most of them. There are even a few people who said „yes, you were right back in 2014“. Most of them are however silent, and generally these people are silent. Silence is much easier to justify (also to oneself) than jubilation of evil.

Western academia is severing ties with Russia now, disinviting scholars, canceling cooperations, freezing grants. What effect does that have on legal academia in Russia?

Those steps are predictable and understandable, although it is difficult to agree with many of them. The tiny part of Russian academia which actively participates in international exchange is the least supportive of Putin’s policy of isolating of Russia. Many scholars are now subject to double victimisation in Russia and abroad, and often without grounds. Yes, perhaps Russian society, including academia, is to the most part passive and submissive to dictatorship (we should not forget that it is very long story of more than 20 years). However, it defies logic to condemn repressions and target the very victims of these violations. So I believe there should be a smarter policy without antagonising and alienating European Russians. Still, it should be a clear zero tolerance policy with regard to those who support the war, and I hope one day legal academia in Russia will be rebuilt. Russia has brilliant lawyers, and it our common interest they will survive.

The week on Verfassungsblog

Last week, the EU activated a directive on the basis of which refugees from Ukraine can obtain a temporary residence permit in an EU member state without red tape. DANIEL THYM explains the new legal situation. For MARIO SAVINO and FRANCESCO LUIGI GATTA, the EU has learned its lesson from the 2015 crisis. GRAŻYNA BARANOWSKA contrasts the situation at the Polish-Ukrainian border with the ongoing humanitarian disaster on the Polish-Belarusian border.

To protect member states from Russian state propaganda, the EU recently banned news sites Russia Today and Sputnik. BJÖRNSTJERN BAADE considers this a problematic precedent. FREDERIK FERREAU argues that media law should be further developed at the Union level along German lines. SOFIA RANCHORDAS, GIOVANNI DE GREGORIO and CATALINA GOANTA discuss how Google, Facebook, Twitter and Co. are getting involved in the (dis)information war.

In light of the pivot in German foreign and security policy, DANIEL HINZE argues for a long overdue clarification of the defense constitution. ALEXANDER THIELE deals with the suspended compulsory military service in Germany and the question of whether leaving the country could be restricted in case of a state of defense in Germany, too.

Due to Russian aggression, there is much talk of a new Cold War. However, the view of Russia’s legal and rhetorical legitimacy as well as its geopolitical support does not stand up to comparison with the Cold War of the 20th century, argues GABRIEL ARMAS CARDONA. Nonetheless, we are witnessing a turning point, finds CLAUDIA WEBER, and perhaps even a break with traditional great power politics.

International law does not condemn states to stand idly by and watch the Russian onslaught. Quite the opposite, says STEFAN TALMON: Supplying weapons is the least Germany could do at this point. STEFANIE BOCK analyzes how Putin could be held accountable under international criminal law. And CAROLINE VON GALL argues that Russia’s membership in the Council of Europe shouldn’t just be suspended, but terminated.

The unity with which the EU and its member states have defended their fundamental values in recent days is certainly a positive development. But their decisiveness, at least as far as Poland is concerned, still leaves a lot to be desired, finds TOMASZ TADEUSZ KONCEWICZ. With regard to the sanctions against “Russian” EU citizens and the lack of legal protection against them, DIMITRY VLADIMIROVICH KOCHENOV worries about fundamental values in general and the rule of law in particular.

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Am FB Rechtswissenschaften, Professur für Völkerrecht und Europarecht mit öffentlichem Recht, Prof. Dr. Sven Simon, ist zum nächstmöglichen Zeitpunkt befristet auf drei Jahre eine

Promotionsstelle

(Teilzeit 50 %, Entgeltgruppe 13 TV-H) zu besetzen. Voraussetzung: abgeschlossenes rechts-wissenschaftliches Hochschulstudium (Erste Juristische Staatsprüfung). Eingangsfrist: 15.4.2022
______________________________________________________________________Die vollständige Ausschreibung finden Sie über https://uni-marburg.de/stellen-wiss oder über den nebenstehenden QR-Code, Kennziffer fb01-0006-wmz-2022.

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GERD WINTER recognizes in the two climate decisions of the Federal Constitutional Court a transition from a legal model of preservation to a legal model of natural resource management.

Does the “right to be forgotten” protect privacy not only against search engines, but also against news sites? This question arose for the ECtHR in the Hurbain v. Belgium case this week. CHRISTOPHER DOCKSEY analyzes the outcome.

Finally, the next online symposium in our 9/11 series launched this week. The contributions of DANIEL SPRICK, FLORENCE NAMASINGA SELNES, QUINTA JURECIC, CHARLES FRIED and GREGORY FRIED, SOPHIE DUROY and DAVID DYZENHAUS are about human dignity and how the liberal state can find its way back to its basic values.

That’s it again for this week. All the best to you, please support us on Steady, and may you and all of us be spared exile or, if not, for short time only or, if not, at least be well received in these dark and uncertain times.

Max Steinbeis

References

References
1 Lev N. Tolstoy, War and Peace, vol. 2, part 2, ch. XXXIX, quoted from the German translation by Werner Bergengruen