The discussion he started is one not
only about Crimea and not even about Crimea per se. Not only about
Ukraine. And not about Russian-Ukrainian relations. This is a
discussion about Russia. About what it should be.

This is about the
rules under which contemporary Russian society should live and
the principles according to which the new Russian state should act –
both abroad and within the country.

Three legal principles and three
major political forces in contemporary Russia

Based on their responses to the Crimea
test, Russian politicians and public figures have fallen into three
distinct groups based on different beliefs.

The first belief
is that force not limited by any law or
morality, or “Might makes right.” This
is a Mafia principle. This is a principle that has been repeatedly
demonstrated by Vladimir Putin and his Kremlin entourage, a principle
widely popularized by the regime’s propagandists.

The second principle is one of bashful
populism hiding behind unlimited (non-liberal)
democracy. “Whatever the majority desires is right.” People
who hold these beliefs might admit that all possible laws and
norms have been violated, that a crime has been committed, and
even condemn the crime; but if the majority wants the crime’s
results to be preserved, they will not do
anything to stop it, protect the victim, return what was stolen,
punish the criminal.

This is the principle of recognizing
the fait accompli resulting from the crime, the principle of
subordinating one’s actions to the mob’s instincts. This
principle is being promoted by opposition figures Alexei Navalny and Mikhail Khodorkovsky
and columnist Yulia Latynina and has been backed by their supporters and
construed by them in many ways.

The third principle is the rule of law
and liberal democracy. “You can only do
what doesn’t violate the legitimate rights of others, both people
and states.” Basically, if a crime was
committed, one needs to do their best to stop the crime, protect the
victim and punish the criminal. If necessary, one should spend
a lot of effort and time or even sacrifice one’s life for that.

This is the principle of the rule of
law. It is supported, for example, by journalists and politicians Arkady Babchenko, Vitaly
Portnikov, Boris Vishnevsky, Andrei Piontkovsky, Garry Kasparov and
many others, including this author.

What follows falls
into three categories of responses: crime and encouragement,
crime and bashful recognition and crime and punishment.

Kyiv Post+ is a special project covering Russia’s war against Ukraine and the aftermath of the EuroMaidan Revolution.

Three European (and universal)
development paths

Given that Putin, Navalny and
Khodorkovsky have proclaimed and regularly emphasized their
allegiance to the European way of life, it’s worth mentioning that
all these principles are absolutely European and quite modern.
Sicilian Mafia, the totalitarian mobilization of Mussolini and Hitler
and the rule of law in Anglo-Saxon, Scandinavian and continental
traditions – all of them are exclusively European phenomena. That
is why a solemn proclamation of the European choice does not rule out
a subsequent Mafia state or totalitarian development path, which are
quite European in their origin.

In response to the crimes that have
been committed or are being committed by the Kremlin – stealing
Crimea, invading Donbas, raping Ukraine, Navalny, Khodorkovsky and
Latynina have proposed labeling these as crimes but at the same time
recognizing their results, as well as simultaneously refusing to
resist these crimes and to punish those who committed them.

How can one explain the position of
those who refuse to return Crimea?

There are three possible
explanations.

The first one is
claiming to be a realist. Khodorkovsky said:
“I know quite well what is real in Russia and what is not.” Of
course, this is not the approach of aggressors and Mafiosi. This is
the position of underdogs. This is the attitude of
slaves and serfs.

This is the position
of peasants kneeling before bandits and giving them their rice,
barley, wives and daughters.

This is one’s attempt to persuade oneself and others to recognize the new reality.

Crimea has been annexed – it can’t
be returned. Yukos has been confiscated – it can’t be returned.
Someone is under house arrest, his freedom has been taken away – it
can’t be returned. This is the philosophy of appeasing aggressors,
Mafiosi, bandits and terrorists. This is a political point of no
return for former opposition leaders.

The second
explanation is that such a position is based on imperialist and
chauvinist views. If people who refuse to return Crimea instead
insist that Yukos cannot be confiscated but Crimea can, that one
person’s liberty and property cannot be seized but another person’s
can, and that burning Jews is unacceptable but cracking down on
Central Asian immigrants is natural, this is evidence of
pure imperial chauvinism.

This is acknowledgment of a
fundamental, deep spiritual affinity between those who refuse to
return Crimea and those who supported Russia’s aggression in
Crimea. The only difference between them is the degree of hypocrisy
that they demonstrate.

The third explanation may be that
those who support legalization of Crimea’s annexation also support
“democratic tyranny”, i.e. allowing the majority to solve any
issues by a vote. According to this view,
not only public issues but also private ones can be solved by those
who don’t have a right to solve them.

If neighbors decide to register a new
resident at an apartment despite the owner’s objections, if a
Communist Party committee does not authorize a divorce, if a majority
votes that property stolen by the government should not be returned,
one should follow those decisions made by democratic tyranny.

Regardless of the
form it takes, refusal to return Crimea has nothing to do with
liberalism, rule of law and a strategic
program for introducing rule of law and liberal
democracy in Russia.

Should Crimea be returned?

It is beyond any doubt that Russia
should return Crimea to Ukraine. All arguments used by enemies of
such a return are not only easily refutable but also irrelevant.

The way of Crimea’s transfer from the
Russian Soviet Socialist Republic to the Ukrainian Soviet Socialist
Republic in 1954 does not matter at all.

The past economic failures (real or
imaginary) of Ukraine and Crimea do not have any relevance whatsoever
for the Anschluss of Crimea, and its return can’t depend on
Ukraine’s possible economic successes or Russian economic failures
in the future.

For justifications of the Crimean
Anschluss, the fact that most of the peninsula’s population are
ethnic Russians does not matter either. Nor does the presence of a
German speaking majority in Austria and Switzerland give Germany any
grounds for annexing those territories.

The issue of Crimea’s jurisdiction is
not a subject of negotiations between Russia, Ukraine and the E.U.
because neither Russia nor the E.U. have any legal rights to Crimea.
Moreover, talks between a robber and its victim before
the triumph of justice are absolutely absurd – any talks can only
be started after everything stolen is returned to the victim.

The issue of Crimea’s jurisdiction is
within the competence of only one subject of international law –
the owner of that territory, namely Ukraine. Only this subject, and
no one else, has necessary legal rights to change this territory’s
jurisdiction.

The only case allowing a Russian
political or public figure to support refusal to return Crimea to
Ukraine would be the Ukrainian state’s clear and unequivocal
renunciation of its rights to Crimea.  

When and how will Crimea be returned
to Ukraine?

Khodorkovsky believes that “only a
dictator can return Crimea to Ukraine in the upcoming decades.”
History says otherwise.

Kuwait, which was annexed by Iraq, was
freed seven months after the annexation. Kuwait’s sovereignty was
recognized by post-Saddam Hussein Iraq (not a dictatorship).

The 1938 Anschluss of Austria was
declared null and void in five years in the Allies’ Moscow
Declaration of Oct. 30, 1943. Austria’s sovereignty was
re-established in 1945.

Sudetenland, which was annexed by
Germany, was returned to Czechoslovakia as a result of the Potsdam
conference seven years after the annexation. It was democratic, not
authoritarian, Germany that renounced its rights to Austria and
Sudetenland.

When a free democratic state with the
rule of law is created in Russia, such a relatively
minor problem as the return of Crimea to its legal owner can
be resolved relatively quickly and easily.

Andrei Illarionov
is a Russian economist, former adviser to President Vladimir Putin,
and
senior
fellow at the Cato Institute’s Center for Global Liberty and
Prosperity. A longer version of this op-ed first appeared in his
blog, and is
reprinted with permission.