The black hole of the quasi states

This paper is devoted to the new challenge for international security system – the rise of quasi-states. Though, these state-like entities exists for more than two decades, the Ukrainian crisis and the declarations of independence of Donetsk and Lugansk People’s Republics brought the word attention to these “black holes” of geopolitics and international legal framework.

In the first part the article sheds the light on the problems of statehood and international recognition of state as the core issues of the quasi-sates vague existence. Further, it examines the violation of human rights as one of the crucial features of the process of their formation and current functioning on the example of Pridnestrovian Moldavian Republic (Moldova), Abkhazia and South Ossetia (Georgia). It pays the special attention to the case of newly-formed Ukrainian quasi-states in terms of human rights infringements and the amnesty for the separatists.

Finally, the paper argues for implementing the transitional justice mechanisms as the one of the solutions which may heal the wounds suffered by the communities affected by the creation of quasi-states and also as one the tools which might occur useful for facilitating frozen conflicts and legal status of quasi states. 1. Quasi-states vs. failed states

Peace, justice and security are inter-related, overlapping layers of the post-conflict environment in the modern world. Post-war reconstruction appears to be one of the most significant values in the course of non-recurrence of violence in the fragile states, emerging from an armed conflict. One of the possible solutions of the post-conflict societies in the aftermath of a bloodshed is to implement transitional justice mechanisms (TJ), either of the judicial or non-judicial character. Nonetheless, some war-torn societies cannot apply backward-looking justice to heal past wounds (such as criminal prosecutions, truth-seeking processes, reparations programs or the maintenance of the collective memory), since their home states face a new challenge – quasi-statesi, effectively barring the state- or nation-building processes of a certain post-violence society.

These carefully politically crafted entities claim to be a sovereign subjects of international law, dismembering the previous state – and what has to be underline - because of lack of capacity to enter into foreign relations, serving just as de facto, but definitely not de iure states. Needless to say, this term cannot be confused with some fragile states, coming from the so-called ‘global south’, unable to protect human rights, which usually fail to develop the essential state structures for normal functioning – in spite of their numerous weaknesses, they continue to be fully accepted actors of international scene [1, p.68-71]. The annual list of the “failed states”ii, entitled The Failed States Index is prepared by non-governmental organization The Fund for Peace. In 2013 the five most collapsed states were: Somalia, Congo (D.R.), Sudan, South Sudan and Chad [2], however it must be noted that probably the situation will change profoundly in 2015 year due to the rise of Islamic State and dismembering of Syria and Iraq. Although in the case of quasi-states their legal and factual position is the reversal of the situation of failed states. They might be treated as the mirror image of the failed states. As the latter are widely discussed amongst scholars, officials and policy makers since the 90. of XX century, the problem of state-like entities has focused the attention of the broad audience just in the last decade. Even though most of these entities have exist for more than two decades, the recent turbulences in the post-Soviet space – war in Georgia in 2009 and pending Ukrainian crisis in 2014 – are forcing the international community to work out the new approach towards the problem of this “geopolitical black holes”: Pridnestrovian Moldavian Republic (Moldova), Nagorno-Karabakh (Armenia/Azerbaijan), Abkhazia and South Ossetia (Georgia) or the recent quasi- entities ‘born’ in the Eastern Ukraine - Donetsk People’s Republic and Lugansk People’s Republic. This theoretical framework might be also implemented to the short- lasting life of the Republic of Crimea before it became the part of Russian Federation [3].

To properly understand the phenomenon of quasi-states it seems necessary to thoroughly analyze the two notions referring to the existence of state: statehood and international recognition

The statehood and international recognition of state

It is widely accepted that the process of birth of the state is the political phenomenon, only described, but not regulated by the international law. The classical definition of state was proposed in the beginning of twentieth century by German representative of school of juridical positivism Georg Jellinek, who formulated the theory of the State as “the organization of sedentary people which has original sovereign power” [4, p.9]. In this definition he pointed out three elements indispensible for the existence of state: defined territory, permanent population and effective government [5, p.266]. The same criteria are generally accepted as the legal constituents of statehood due to the Article 1 of the 1933 Montevideo Convention of the Rights and Duties of States: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states [6]. In comparison to the theoretical structure, this international treaty introduced the fourth sine qua non condition of legally-effective statehood: capacity to enter into relations with other states. However, the same Convention clearly states in the Article 3 that international recognition of the newly- formed state has only the declaratory dimension: The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence (...) [6]. It means that state itself exists even if it was not recognized by other members of international community. This declarative character of recognition was confirmed by Resolution of Institut de Droit International in 1936 [7] and in Opinion No. 1 of The Arbitration Commission of the Conference on Yugoslaviaiii in 1991 [8].

These provisions create a serious practical and theoretical problems, because state unrecognized by the prevailing number of UN members cannot in fact effectively enter into relations with other states. To make the situation even more vague it is claimed that there is a negative obligation burdening the states of not recognizing the factual states

resulting from the infringement of ius cogens (peremptory norms). This customary rule was re-confirmed in Draft Articles of Responsibility of States for Internationally Wrongful Actsiv. Article 41 pt. 2 of this documents stipulates that: No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. Article 40 refers to the obligations stemming from the peremptory norms of general international law [9]. Therefore it is forbidden to recognize illegal situation and its consequences resulting from the illicit use of force in the form of war of aggression or from the wrongful secession [10, p.2]. Thus, only states obeying some fundamental standards of international community – for instance provisions of the Charter of United Nations, Final Act of Helsinki and Charter of Paris – can be lawfully recognized [11, p.6]. The analyses of abovementioned provisions leads to the conclusion that international community cannot lawfully recognize the quasi-states, which effects in their disability to enter into international relations therefore they are not “states”, but like-states entities. This situation raises the question about the real nature of such entities.

The most important feature of these entities is that they fulfill at least two conditions of Montevideo convention – effective government and defined territory. They have their own institutions (legislative, executive and judiciary power), army, they issue entry visas, provide their citizens with basic needs like healthcare, transport infrastructure, access to the water (at least at the minimal level). Their territory is delineated by usually contemporary frontiers as demarcations lines, but still this area of land might be clearly distinguished from fully-recognized states (both the state from which quasi-state seceded and neighboring state/s e.g. Moldova and Ukraine in the case of Transnistria).

The constituent of permanent population seems to be more complex issue. The advisory opinion of Supreme Court of Canada in the case Reference re Secession of Quebec regarding the secession of province of Quebec clearly highlights, that right of secession is strictly limited to “the people” (“nation”) who cannot exercise their right to self- determination within the legal and governmental framework of “mother-state” [12]. This ruling is cohesive with the widely accepted outlook that existence of “the people” is one of the crucial conditions, that must be met to create right to secession outside the

decolonization context. Taking into consideration these predicaments it shall be outlined, that permanent population does not mean “the people”. In other words, there might be permanent population, which is not the separate “nation” understood as geopolitical, historical and cultural community united with the common goal - raison d’Ètat (reason of the State).

In fact, such situation usually occurred with respect to quasi-states. They have permanent population, but there are serious doubts about the existence of “the people”. Moreover, the processes of wrongful secession in the form of armed conflict was in their case tightly connected with the infringement of human rights of different “nations” and might be subjected to the legal instruments of transitional justice.

Therefore the quasi-states shall not be recognized by international community and this lack recognition results in their “impaired sovereignty”. They are sovereign de facto (substantive sovereignty) due to their attributes of permanent population, defined territory and government, but they are not sovereign de iure (formal sovereignty), because as unrecognized entities, they cannot effectively enter into relations with other members of international community [13, p. 21].

This state of affairs affects the factual and legal situation of the ordinary people who are in facts the victims of war. However, their situation differs in each of the quasi-states it is possible to find some common features characterizing the fate of inhabitants of these “geopolitical black holes”.

Human rights violations in PMR, Abkhazia and Southern Ossetia

From the point of view of ongoing crisis in Eastern Ukraine it is necessary to briefly characterize the human rights violations in quasi-states already existing within other post-Soviet states:

1. a) Pridnestrovian Moldavian Republic (Moldova) – during the war between Moldova and separatists in 1992 around one thousand of people were killed and number of wounded approached three thousands of people. However, the number of internally displaced persons (IDP’s) were relatively small, especially in comparison to the other post-Soviet conflicts. European Parliament issued a few

resolutions condemning strict and frequent violations of human rights by the Transnistrian separatist authorities, mentioning inter alia in year 2014: “whereas the 1992 war in the Transnistrian region of the Republic of Moldova led to the establishment of a separatist, illegitimate and authoritarian regime in the region; whereas the situation of frozen conflict persists, and human rights violations continue to be gross and widespread, including in the area of education and the operation of schools” [14] and “Strongly deplores the lack of respect for human rights in Transnistria, the denial of the liberties of the population living in that area, ignoring the right to access to information and education in mother- tongue;”[15]

1. b) Abkhazia – during the Abkhazian-Georgian war in 1992-1993 from 13,000 to 20,000 ethnic Georgians and approximately 3,000 Abkhaz have been reported to be killed, more than 250,000 Georgians became internally displaced or refugees and 2,000 are considered missing [16][17]. After the announcement of ceasefire the Abkhazian territory was left by almost all Georgian people, half of Russian population and half of Armenian minority. In 2013 UN General Assembly adopted resolution recognizing the right of return for all refugees and internally displaced persons to their homes in Georgia, including Abkhazia and South Ossetia [18]. The Georgian Ministry of Foreign Affairs constantly alarms that Abkhazian authorities are violating human rights of Georgian people including the freedom from harassments and detentions, the freedom of movement and the right to receive education in one’s native language [19]
2. c) Southern Ossetia – the case of this quasi-state is exceptional because of two wars which took place in its territory: 1991-1992 South Ossetia War and 2008 Russian-Georgia war. During the first war around 1,000 people died and due to the reports of Human Rights Watch 100,000 ethnic Ossetians fled from South Ossetia to Russia and 23,000 of ethnic Georgians fled to Georgia generating the huge number of refugees and internally displaced persons [20]. Though the number of killed during the second war was not higher than a few hundred people

the conflict also resulted in overwhelming number of refugees. War displaced more than 100,000 people and Russian troops were accused of ethnic cleansings against Georgian living in Southern Ossetia. According to the report of UN Secretary-General in the year 2014: 20,272 individuals remain in displacement and in the aftermath of all wars in Southern Ossetia and Abkhazia 119,324 internally displaced persons were still living in collective centres, while 134,068 internally displaced persons lived in private accommodation [21 p.6-7].

The case of Donetsk and Lugansk People’s Republics

The war in the Eastern Ukraine brought the world’s attention to the problem of quasi- state due to the declaration of independence of two new entities Donetsk and Lugansk People’s Republics which also created the confederation called the Federal State of New Russia (Novorossiya) claiming the territories of Ukrainian Donetsk and Lugansk Oblasts bordering with Russia. The legal status and the process of emerging of this entities lays beyond the subject of this article, but for these considerations important is the problem of pending human rights infringements in both of these entities. The still ongoing fights (even though the parties to the conflict signed the ceasefire on 5. September 2014) make it very difficult at the time of writing this articlev to present the comprehensive picture of different abuses. Human Rights Watch charged both Ukrainian army and separatists forces – on the bases of a few fact-finding missions - with violation international humanitarian law and the laws of war [22]. The witness and media coverage reports also about alleged anti-semitism, sectarian attacks, attacks on Gypsies and homosexuals, prejudiced against Ukrainians and abductions (including kidnappings of journalists). Moreover, the separatists government of Lugansk penalized homosexuality imposing from 2 to 5 years of prison and also death penalty for raping a minor. The separate, very extraordinary case refers to the downing of MH17 Malaysian Airlines civil plane, which rises a lot of legal doubts about the possibility of classifying it as war crime or crime of terror [23].

In the context of transitional justice mechanisms the special attention should be put on the decision of Ukrainian authorities which grants the sweeping amnesty to the separatists in Donbas region. It must be mentioned that it stipulates the important

exceptions – crimes listed in the specific articles of the Ukrainian Crime Code (e.g. human traffic, genocide, crime of terror, crimes against state, assassinations) and the individuals engaged in the downing MH17 Malaysian Airlines flight [24]. It is widely agreed, that amnesty as one of the tools of transitional justice is prohibited in reference to the international core crimes: genocide, crimes against humanity, war crimes and crimes of aggressions. These crimes are also prosecuted by the International Criminal Court (though it cannot exercise jurisdiction over the crimes of aggressions). The discussion is still pending over the crimes that constitutes serious human rights violations, but which do not fall under the abovementioned categories. Though in this very case it seems justified to state, that amnesty introduced by Ukrainian authorities is lawful in the light of international law and might be concerned as permissible tool of transitional justice.

However, also the other instruments of transitional justice might be used to heal the wounds of Ukrainian society torn by the hybrid warfare.

Conclusive remarks

The most important remarks stemming from the different examples of quasi-states is that despite the cease fire the environment of frozen conflict results not in the past abuses, but also in contemporary violations of human rights. The vague status of quasi- states makes extremely difficult to effectively introduce there the mechanism of transitional justice. The situation is even more complicated because of the subsistence of these entities is tightly bond with the support of their mighty protector, namely Russian Federation. The decision of implementing TJ tools mainly depends not on the political will of officials in Tiraspol, Donetsk or Lugansk, but rather on the solutions adopted in Kremlin. However some of its tools like reparations (especially allowing the displaced persons to come back to their homes), institutional reforms of abusive state institutions, truth and reconciliation commissions, criminal prosecutions might occurred very useful in searching for the solution of the this political and legal deadlock [25]. Though, contrary to the cases of normal states, these mechanisms shall be used in the first place not to heal the past wounds, but to stop the contemporary human rights violations and to guarantee their obeying in the future

Such activities might bridge the gap between two societies emerging as the result of the creation of quasi-states. At the same time it may also give a new impetus to the peace negotiations and facilitate new solutions towards regulating the international legal status of state-like entities. There are no doubts that human rights violations are one of the most important impediments of terminating these conflicts.

Finally, the transitional justice mechanism are of profound importance for improving the fate of common people. While, the great geopolitics might make it impossible to finish frozen conflicts, the efforts of the international community shall focus on eliminating or at least limiting the suffering of human beings between two sides of the border – quasi-state and the recognized one. This might lead in the future to rebuilding the society and finally rebuilding the state.

“The reconstruction of Donbas means not only its renovation and re-building, but also its reintegration with the rest of the country and re-adaption with the whole society – said Ukrainian vice-prime minister Wołodymyr Hrojsman, after the meeting with Johannes Hahn, the European Commissioner for Regional Policy and the next Commissioner for European Neighbourhood Policy and Enlargement Negotiations”[26].

The transitional justice tools are ready, there must be only the will and determination to use them.

This article was previously published in Актуальні проблеми міжнародних відносин: політичні, економічні, правові аспекти, (ed.) M. Malskyy, I. Byk, M. Mykayevych, N. Antoniuk, Львів 2014, pp. 35-45.

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i The other terms for quasi states includes: unrecognized states, states with limited recognition or state-like entities

ii In year 2004, Robert Rothberg proposed the typology of „failed states” based on the level of weakness of its political institutions and economic underdevelopment. He divided them into four categories: weak states, failing states, failed states and collapsed states (Somalia is the only case of totally collapsed statehood).

iii This body is commonly known as Badinter Arbitration Committee

iv These Draft Articles were adopted by International Law Commission in August 2001 and submitted to the General Assembly. The provisions of the Articles have been already cited by the International Court of Justice.

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