Last August, while celebrating the anniversary of the successful invasion of Georgia in August 2008, President Dmitry Medvedev introduced amendments to the 1996 Law on Defense aimed at allowing the use of Russian forces abroad “to defend Russian soldiers and citizens, fight piracy and defend foreign nations against threats.” Medvedev directly connected the legislation to the war with Georgia: “so that in the future these questions will be clearly regulated” (www.kremlin.ru, August 10). Medvedev, in effect, acknowledged that Russia did not have the legal right to invade Georgia in 2008, since its territorial integrity was not under threat and it did not have any defense treaties with South Ossetia or Abkhazia. The Federation Council (the upper house of parliament) did not vote to send troops into battle inside Georgia, as the constitution demands (Kommersant, August 11). Medvedev, a former lawyer, definitely believed that this legal problem must be straightened out.
By the end of last October the Duma (lower house of parliament) and the Federation Council successfully passed the draft and Medvedev signed the law last month, allowing the president to decide on the “operational use” of the Russian armed forces abroad, as well as the number of troops and weapons deployed. But the amended legislation still seemingly contained the constitutional provision requiring “a corresponding resolution” by the Federation Council to allow troops to actually go into action abroad (RIA Novosti, November 9). This week this constitutional provision was exposed as a legal hoax. Medvedev asked the Federation Council to pass an open-ended all-encompassing resolution that will allow him to send troops into action abroad anywhere, anytime; decide on the size of force, specify the enemy, with no legal restraints or limitations “to defend the interests of the Russian Federation and its citizens” (www.kremlin.ru, December 8). The Federation Council, fully controlled by the Kremlin, enthusiastically announced it will pass the required resolution next week on December 16. Sources in the Kremlin told journalists that the Federation Council resolution will be a “universal decision and will in fact give the president ‘the general power of attorney’ to take independently and swiftly decisions to use the armed forces outside Russia’s borders” (Kommersant, December 9).
In effect this is a constitutional coup. The constitution was written and approved in 1993, when Russia was recovering from the devastating effects of almost ten years of invasion and occupation of Afghanistan that had cost tens of thousands of lives, vast amounts of resources and ended in defeat. The Afghan debacle was blamed on the secretive and frail Communist Politburo members that apparently informally took the decision to invade. In 1993 Russian society and the ruling class were fed up with foreign military adventure and envisioned strong restraints that could prevent any future repetition. Before authorizing the use of the armed forces abroad in each particular case, the Federation Council was required to discuss the situation and pass a resolution allowing or disallowing the use of force as well as troop deployment strength and duration of the mission (Vedomosti, December 9).
Now the tide of public opinion has changed. The chairman of the Federation Council defense and security committee Victor Ozerov told journalists that Russian troop deployment in international peacekeeping missions or other cases that are not “operational” will still go through the old procedure of case by case votes (Gazeta, December 9). But it will be the Kremlin, not parliament that will decide, on what is “operational deployment,” and which cases merit a vote.
In the 1990’s the Federation Council was an independent body, whose members were elected. The Federation Council often voted against the Kremlin. Now its members are appointed by provincial governors and legislatures in consultation with the Kremlin. The governors are in turn Kremlin-appointed, while the legislatures are totally dominated by the ruling United Russia party. In 2008 the Russian military under orders from Vladimir Putin and Medvedev were for months preparing to invade Georgia in August, but an official Federation Council resolution to legalize the attack was not passed beforehand or when the invasion began. This allowed Medvedev to speak about how he agonized before deciding to react to a sudden Georgian attack against Ossetian separatists by sending in troops during the night of August 8, 2008 (www.kremlin.ru, August 7, 2009). It so happened that minutes after Medvedev’s decision Russian tanks were already deep inside Georgia. An authorization beforehand by the Federation Council or an emergency session happening during the same agonizing night of August 8, 2008 would have made the narrative too fantastic. Now Medvedev has decided to streamline the process of authorizing future invasions of neighboring nations and prevent possible embarrassing lapses by sidelining the Federation Council entirely, despite it being only a rubber stamp chamber.
President Boris Yeltsin’s former legal aid Mikhail Krasnov and one of the principal authors of the constitution, Victor Sheinis, both announced that giving the Kremlin permanent legal rights to unilaterally use armed forces abroad “is absolutely unconstitutional” (Kommersant, December 9). But Putin and Medvedev have already turned the basically democratic 1993 constitution into an empty shell. Free and fair elections are non-existent in Russia, while the executive branch of government dominates and corrupts parliament and the legal system. Basic human rights and the freedom of the press are brutally suppressed. For the tens of thousands of Georgians that were ethnically cleansed, robbed, killed or raped as a result of the Russian invasion in August 2008, it makes no difference if the aggression was properly legally approved or not.