By Paul Goble
Constitutional Court Judge Konstantin Aranovsky’s suggestion that the Russian Federation reject its status as legal successor to the Soviet Union (windowoneurasia2.blogspot.com/2020/02/constitutional-court-judge-says-russia.html) is naïve at best and dangerous in the extreme, according to Vladimir Tomsinov.
The specialist on the history of state and law at Moscow State University points out that Aranovsky cherry picks continuity, keeping what he likes and getting rid of what he doesn’t. But legal continuity doesn’t work that way. It isn’t a fixed thing but one that is recognized or not by the state and international community (lenta.ru/articles/2020/02/27/osoboe_mnenie/).
Legal continuity is typically partial: it certainly is in the case of the Russian Federation because the USSR lost a large part of its territory and that territory is not part of Russia today, Tomsinov continues. But any wholesale revision of the issue is unlikely because it would raise serious questions for the Russian state and the international community.
Inappropriately, the Moscow scholar says, Aranovsky has entered territory in which he is no specialist, “the territory of Soviet history and international public law. He does not understand that many events of Soviet history have legal significance ranging from the events of 1917 to World War II to 1991.
“All these events,” Tomsinov argues, “define the legal status of the state of the present-day Russian Federation both within the country and in the international arena.” But Aranovsky makes even more serious errors when he suggests that the state bears responsibility for crimes rather than individuals and individual officials.
“The state cannot on its own be guilty of any crimes. Individuals commit crimes,” and so the state may as an act of mercy provide restitution but it is not required to because the state as such is not the guilty party. Repentance is a good thing for individuals and groups; it is not required or a good idea for a state.
Aranovsky also gets in trouble with respect to law when he speaks of the USSR as a totalitarian state, Tomsinov says. The Soviet state was cruel and it aspired to total control. But the state did not exercise total control; and thus the crimes ascribed to it should be ascribed instead to particular individuals.
That was the judgment of Nuremberg, the legal scholar says. “The tribunal recognized as criminal not the German state but the group of officials of Germany who held in their hands the levers of state power.” Those are two fundamentally different things, and Aranovsky does not appear to understand the distinction.
Moreover, even when Stalin’s power as its height, he had millions of complicitous citizens who wrote denunciations and complicitous officials who carried out his will. Thus, “the phenomenon which people call ‘Stalin’s cult of personality’ in reality conceals something much more horrific, the cult of the villainy of the mass of people.”
“There were indeed many victims of repression,” Tomsinov says; “but many of them were at one and the same time executioners.” Unfortunately, Russians today do not know all the details because many of the records from that time are still classified and unavailable even to researchers.
Among the most important of these are the 276 volumes concerning the investigation of Bukharin and the 100 volumes about Malenkov. And because these have not yet been examined, it should make professionals cautious about coming up with sweeping generalities of the kind Aranovsky engages in.
Tomsinov also discusses the issue of the legal succession of the USSR to the Russian Empire. That was recognized in 1924 by Britain and France and accepted by the Bolsheviks who did not denounce every agreement the tsars made or refuse to honor the debts that the tsarist government incurred, whatever some think.
If one follows Aranovsky’s logic, “almost all the states on earth can be recognized as ‘illegal.’” But his comments about Russia are especially unfortunate. It is sometimes said that the Bolsheviks destroyed the Russian Empire with the October Revolution, the Moscow scholar says; but that is nonsense.
“The Russian Empire was destroyed as a result of the overthrow of the state in February-March 1917.” By that fall, “the Russian Empire in essence had fallen apart, and a new legitimate state power on its territory had not arisen. Therefore, the Bolsheviks in fact did not seize power for one simple reason: that didn’t exist.”
Moreover, they “did not destroy the Russian state: it was already destroyed. In fact, they restored a state for most of the territory of the former Russian Empire.”
All that needs to be recognized, Tomsinov says. But what is especially important is the recognition of something else: “if we cast doubt on the legitimacy of the USSR, then in fact we cst doubt on the borders of the present-day Russian Federation and the ownership of its natural resources by the people.”
“This is in general an anti-people position,” he continues, especially in the case of Russia. “The state is one of the main conditions of the existence of Russian civilization. Western civilization is based on society and a civil society is the nucleus of Western civilization,” the Moscow legal scholar says.
“But the nucleus of Russian civilization is the state. The collapse of the state always puts Russian civilization on the brink of destruction and leads to civil war.” A judge on the Russian Constitutional Court appears to have forgotten that.