Novaya Gazeta. Europe: Is there a concept of collective responsibility in international law?

GB: Naturally, there is a concept of collective responsibility in law as a whole. This responsibility is implemented with the aid of criminal law, for example, when all members of a criminal group take responsibility for the crimes committed by its separate members. That is, they were not the ones who pulled the trigger, but they contributed to the crime somehow. In civil law, members of corporations bear collective responsibility. In each case, the legal relations between members of a group or an organisation serve as grounds for holding them responsible. In one way or another, it is a free choice that entails responsibility.

Modern international law does not recognise collective responsibility of citizens as such. However, it happens in practice. The most relevant example is a situation when international legal responsibility borne by the state affects its entire population. Collective responsibility in itself can be considered unlawful. For example, collective punishment is seen as a war crime in accordance with international law.

You’re talking about the responsibility of the state as a system of government bodies. And now, we are talking about collective responsibility of the country’s citizens for the crime that the state is accused of. Can the concept of collective responsibility be attributed to them?

I think we need to separate the wheat from the chaff here and consider carefully what such measures are based on. This issue had been raised several times before. There was a discussion after WWII on the collective responsibility of Germans. And we witnessed an entire range of measures taken by various states, including the deportation of Germans from various regions, including the Sudetenland (Czechoslovakia). These measures were not taken based on court rulings against individuals, they were taken in relation to a national group. There was a discussion on the responsibility of every German citizen.

And then Thomas Mann, Erich Maria Remarque, and all Germans who opposed the Nazi regime would bear the same responsibility.

This is why this issue was constantly discussed in international law. Discussions of collective responsibility of citizens were underway within the UN Commission on Human Rights. And this approach was rejected. Nevertheless, it always had supporters, and it shows that even among lawyers, even among those who must approach such concepts with caution, this point of view existed.

We see that this point of view is relevant today: these concepts have been revived in the discussions of the Russians’ responsibility for the crimes in Ukraine. We can see it in the language and terms that are used. For example, an act of the Russian military in Ukraine is not characterised as a war crime, it is characterised as “a Russian crime”. We can see it in different texts written in different languages. And this evolution is very telling. A group of very popular supporters of collective responsibility actively promotes this agenda on social media, repeatedly insisting that it is not the country’s leadership or its head of state that are to blame, it is the Russian nation.

When it comes to the great Russian culture, Russian citizens all consider themselves to be an irrevocable part of it. As if we had written Eugene Onegin as a collective. But when it comes to the responsibility for the war that Russia is waging, everyone immediately says: “What do I have to do with it?” Do you think that this separation is to be expected from Russians?

I don’t think it’s a trait specific to Russians. People tend to identify themselves with positive concepts. The feeling of national pride can be destructive, of course, but it is based on positive associations.

Germans are proud of their culture, but they bear responsibility for Nazism as a country.

Today, the overwhelming majority of people in Germany condemn Nazism, but far from all think that they must bear responsibility for it. In order for the citizens to bear responsibility for the actions of the state, there should be a connection between them. And not a unilateral one. And it is not always definitive even in democratic systems.

I’m paying taxes, so I’m connected to the state. It exists on my money, so I take responsibility for its actions.

You do not have powers of authority; you do not have distributed authority. You do not make the decisions. Even if the “elections” in Russia really were elections, if different groups participated in it and if the results were determined by the majority decision. The minority is always left overboard. That is, it turns out that the minority is not making the decisions, but it still bears responsibility. It is a very controversial take. In a corporation, in a board of directors, the minority can stand up and announce its resignation. Russians do not have such an opportunity in our country.

Europe explains its decisions like this: you voted for Putin, you chose this parliament, it’s up to you to bear responsibility for them. Isn’t it a valid point?

Yes, it’s an important point. But let’s have a look back: the same states that are now talking about collective responsibility of the Russians condemned Russia’s election practices in the past. They said that the elections had not been free or fair for many years. And now they’re saying that the Russians elected those people? Elections entail the existence of a democratic political system, free registration of candidates, free political parties, freedom of speech, freedom of the media. Then we can talk about representation, about citizens electing someone. But there have not been any of those things in Russia for many years. All this has led us to where we are today. The current situation was caused by the lack of a democratic system in Russia.

they do not take part in the elections even nominally, that is, they cannot influence the decisions taken by the state in any way. In other words, not only are the measures against all nationals unjust, they lack basic rationality.

What are the initiatives proposed by the supporters of punishing “all Russians”? For example, they propose to introduce travel restrictions for Russians, namely, visa sanctions, which will be of a non-selective nature. That is, they will be aimed against all citizens of the state.

Doesn’t a country, take Finland for example, have the right to decide whom to let in on their territory and whom to turn away?

It’s not quite true, the state does not have absolute freedom here. Firstly, the measures taken should have a legitimate basis, and secondly, they should be proportionate. If they start violating basic human rights and do not include important exceptions, we cannot say that these measures are lawful.

The states do have great freedom to decide, as you put it, whom to let in and whom to turn away. And some states have introduced such measures against Russian citizens. They justified it first and foremost by security concerns. These countries border Russia, their fears are understandable. They introduced the same measures during the COVID pandemic: they banned entry to foreigners.

But then, it was a measure of protection, not punishment of specific states.

But there were different “colours” for different states.

And now they’re simply saying: we won’t let in Russians because they’re Russian.

Yes, this is a new development. I’d like to point out that punishing people for belonging to a national group or state is considered discrimination, a violation of human rights. And here, I would like to focus on the statement by the foreign minister of Estonia, which introduced the toughest restrictions for Russians: Urmas Reinsalu repeated several times that he ties the restrictions to anti-Russian sanctions. He also mentioned some moral arguments: Russian nationals are visiting museums in Paris while their missiles are destroying Ukraine.

And they leave their blood-stained money in Paris.

Citizens bear direct responsibility solely on the basis of their citizenship. And here, there is a plethora of problems: both legal issues and broader social ones. What is it based on? When we’re talking about the responsibility of, say, a corporation, an organisation, it is based on the existence of certain relations that suppose some element of free choice. In the majority of cases, citizenship is not based on the desire of a person to be a citizen of a certain state.

If we compare it to corporations, employees of Hugo Boss sewed SS uniforms during WWII. Was anyone posing the question of responsibility of regular seamstresses, not the owners and the top management, back then? Although nominally, the seamstresses had a choice, they could have refused to work.

During the Nuremberg trials, only four organisations were recognised as criminal. There was no Hugo Boss among them, even the Wehrmacht didn’t make the list. At the same time, numerous servicemen of the Wehrmacht took part in numerous war crimes, however, there was no collective responsibility assigned to the millions of servicemen even then, in 1945-1946. If we return to the present and talk about Russian corporations, their employees are already bearing responsibility assigned to the companies in the form of sanctions.

Is this not enough to “punish” Russians for the war?

We need to differentiate between the responsibility itself and the effect it has, which will affect all citizens in some shape or form. This is why many international lawyers have always criticised the institute of sanctions, pointing out its flaws and saying that this mechanism should be used carefully. Simply because it is non-selective in the end, it ends up having consequences that concern people who have nothing to do with the violations that caused these measures of responsibility in the first place. In Russia, a huge number of citizens have already felt the consequences of this responsibility due to sanctions. Although even those who criticise sanctions cannot say that their goal was to hurt citizens. The main goal of the sanctions is different.

What I am saying does not mean that we do not have to deal with the manifestations of imperialism and militarism rooted in certain sectors of society. But

There has been no national vote regarding the war in Russia.

Depends on how you put it. There was the approval of the Federation Council of using the armed forces abroad. The Federation Council is a representative body, it’s supposed to act in the name of the people.

I agree. But it wasn’t the result of a democratic procedure. Democratic procedure supposes that the representative body reflects different shades of public opinion. But even if we look at opinion polls, even if we choose to believe them, look at the ratings of the United Russia party. What percent of the population supports it?

And why should the European governments think about it? They’ve got their own lives, their own elections. They have the right to say: dear Russians, if this is how this thing works in your country, it’s your problem.

That is basically what they are saying.

Are they wrong?

They are right to an extent. But it’s a different thing entirely when they are making the decisions based on introducing collective responsibility for all citizens. These things should be separated.

How? How can they do it? They see that the support of Putin and his war in Russia is enormous. And I’m seeing it too, by the way.

It’s a controversial take. The notion that suggests that people are supporting war crimes being committed is not true. In any case, we need to separate between the emotional aspect, which I understand, and which I agree with in many ways, and political steps that should be taken on a civilised basis reflected in the norms of international law.

You criticise the state for violating the norms of international law, and you are justified in doing this. But I’d like to remind you that serious violations were documented not only when it comes to war crimes: the rights of Russian citizens are violated in Russia too. This has been going on for dozens of years. All this time, the states that criticise Putin’s regime have maintained good relations with it, in the sphere of economy and other spheres.

This is counterproductive and dangerous. And this snatches away the hope for change in Russia. And not just because Russia is an enormous country.

The idea of refusing visas to Russians has one specific aim: Europe does not want to see those who support the war. At the same time, Europeans admit that they do not have an instrument to filter out those who support it. This is why they want to introduce a universal ban.

Actually, this filter already works: it’s the fact that the visa regulations exist. As for me, I’ve always considered it unjust, especially considering that Russia is located in Europe and that there are many personal and family ties between Russians and other European states. In the 21st century, people should be travelling from country to country without visas. But these regulations exist: and they have the same goal you’re talking about: states can decide whom they want to see and whom they do not. This is decided in advance, and not when a person crosses the border.

There is some truth to what the Europeans are saying: without a doubt, this problem arose because of Russia’s actions. And because of the far-from-perfect, to put it mildly, behaviour of the Russian public in this situation. All this is true. And I don’t want to say that the Russian public and separate citizens are blameless victims. But the problem is that the standard and the mechanism of “punishment” are counterproductive and unjust, they are not in line with human rights standards and European values that Europe loves talking about so much, they follow a different logic altogether. The same logic that is used by the Kremlin propaganda.

And the problem isn’t just that the norms of international law are violated by a certain ban. The problem is to what extent it corresponds to what we all — all those who oppose this war — are fighting against. We are fighting within the country; we are fighting internationally. When it comes to this practice and to these standards, Europe cannot expect any support from within Russia, it cannot expect the situation to change. This will only make it worse.

You’re talking about the rationality of these measures and their effectiveness. But what legal instruments can be used here?

From the position of international law, visa restrictions in themselves are possible and acceptable. But the specific measures that have been proposed are not. They are legally unfounded, namely from the position of EU law. I’d like to reiterate that assigning the crimes committed by government representatives to the entire nation is not a type of responsibility that exists in international law. The state does not bear responsibility for a crime committed abroad by its citizen as an individual. Why should the opposite logic work, and a more controversial one to boot?

Let’s assume that a certain country decides to introduce a visa ban and include new questions in the application form: what is your stance on the war, on Putin and so on? Can a person be denied entry because of their opinions? Will this be acceptable within the logic of the rule of law?

Of course not, this contradicts freedom of opinion and freedom of speech. This would be fundamentally wrong. Moreover, it would be humiliating. It demeans a person’s dignity. The desire to differentiate between citizens is understandable in this situation, but the method of doing it is important too. If this method is tied to demeaning a person’s dignity, it is unacceptable. And here, it is tied to demeaning a person based on their citizenship. Such questions are not posed to citizens of other states, are they?

Yes, but citizens of other states do not support the aggressive war of their own state.

I want to reiterate that citizenship is not a result of free choice. Russian citizens have no legal possibility and no real opportunity to stop being Russian citizens. This possibility has always been more of an illusion in Russia, because to renounce Russian citizenship, you need to be a citizen of another state or to be guaranteed to receive citizenship of another state, and now, it is simply dangerous. So, the measure we’re talking about seems rather controversial and beneath the practice of civilised states. It demeans people.

Say, the Finns or the Latvians do not want to see people who might paint the letter Z on their fence at any moment. How can their governments defend them? It’s not about the responsibility of Russians, it’s about the desire of our neighbours to defend themselves.

These countries have visa restrictions already. Besides, having a visa does not provide absolute grounds for entering the country.

So, we’re back to the application form with a demeaning question. How can you separate the “good” ones from the “bad” ones?

Each one of these states has a legal system which introduces criminal liability. They can remind tourists that they will be held responsible for such actions. The question is to what extent the method of doing this will be in line with human rights. It is impossible to prevent all possible complications if we live in a global world. People are travelling, they all have different passports, and far from all those who could paint the letter Z on the wall, as you put it, have Russian passports. And many people with Russian passports do the opposite.

However, this logic is inevitable, and we, the Russians, will have to face it. It’s impossible to rule out emotional reactions, painful manifestations, complications that we may be faced with in Europe, and there will be more of those in the future, I’m afraid. But this is what human rights are for, this is why international law exists, for the states to adhere to it. It is unacceptable to discriminate people based on non-arbitrary criteria. By the same logic, we can simply deport everyone with a Russian passport from European states.

This is what President Volodymyr Zelensky is offering to do.

What next? Let’s deport everyone who speaks Russian? This path does not end well at all. And this just adds more fuel to the Kremlin propaganda machine. We see how these statements are used in the propaganda and how they are sometimes provoked. So, it’s a dangerous path. Naturally, it will have support, like any populist initiative.

Let’s recall Trump’s travel ban aimed at citizens of several states based on the fact that this is where terrorists come from. By the way, many supporters of the collective punishment of Russians, for example, former President of Estonia Toomas Ilves, were among those who condemned Trump’s policy, they were one of his staunchest opponents.

There are other ways of “punishing” all Russian citizens at once, one of them was introduced in the first days of the war: the blocking of Visa and Mastercard payment systems. Does this violate any norms of international law?

Nominally, those were the decisions of private corporations and not state bodies. Although they were introduced based on the measures approved by the state. And many of these measures overdid it somewhat. The risks of these organisations tied to the fact that they will infringe upon someone’s rights were lower than the risks of being held liable in the US and Europe. So, their motivation is clear.

Without a doubt, these measures give rise to questions when it comes to proportionality. They can have specific consequences and put people in a desperate situation, however, they have a legal basis, they can be considered to be at the discretion of these corporations. Besides, these measures have specific grounds: the companies do not want to provide their banking channels to finance the hostilities.

To my mind, the problem is that the corporations do not sufficiently monitor the consequences of their actions for human rights, including the rights of people living as refugees. This affected them first and foremost. International law recognises that every private corporation, including banks, has specific obligations in the sphere of human rights. However, this sphere is only being formed, so the details are vague, and it’s hard to prove in reality where and how these actions violate human rights. They can always say that the state that grants an asylum to a person must ensure that their rights are being observed.

Basically, this is what’s happening, there are different forms of asylum, but as a rule, they provide a person with the opportunity to open a bank account in their country of residence.

Yes, but we’re talking about a sphere where the consequences of the restrictions are very serious. The problem is not with the violation of specific norms, it’s with the flawed logic that reproduces such violations.

European governments are looking at what Russia is doing and realising that they don’t have any other methods. Should they just stand by and do nothing in fears of violating the rights of Russians, even those who support the war? As a lawyer, what measures do you find acceptable here?

We should simply adhere to the existing documents. Within the EU, a strategy has been formed for a while that concerns the sanctions and the ties to Russia, the relations with its civil society. It includes various approaches. Including a rather tough and principled sanctions policy that should also be consistent.

At the same time, the EU has always had a clear stance: we support the civil society in Russia, and if there is no de facto civil society at this point, then we support specific people that are suffering from the government’s policies and who cannot be held responsible for its actions, as they are victims themselves. If a united Europe rejects the principle of supporting the oppressed, it will deal a blow first and foremost to the values that united it in the first place.

Yes, there are emotions, there is a temptation to act in a certain way. But this is why

Did I get that right — instead of punishing all Russians at once, you offer the tactic of supporting separate citizens?

Absolutely. And I’d like to reiterate that this corresponds to the EU policy as a whole. I don’t understand why civilised states should have this medieval practice of collective punishment.

But this is exactly what the EU is doing: even the countries that stopped issuing tourist visas still offer humanitarian visas to those Russians who may be facing danger in Russia.

Yes, they support both separate citizens and media organisations. This is why I think we should be very careful assessing the actions of separate EU states. Under no circumstances should we think that all of Europe is infected with Russophobia, this isn’t right at all. Yes, they are doing a lot. I’m just calling on them to be consistent in this policy.

The injustice is what’s causing such a sharp reaction of the people, and collective punishment without blame is unjust. I don’t think that as a result, the people will rally around the Kremlin even more, as many predict. But the drive to act, to help the victims, to help Ukraine, to show solidarity with Ukraine — all this will be weakened. This is a natural reaction to injustice. There is a huge number of Russians who are firmly against the war. Even if you believe the official polls, there are dozens of millions of people. If you push them away and demotivate them, how can the situation in Russia change without their participation?

All this does not cancel out the need to talk about the responsibility of the Russian public. The word “responsibility” has many meanings in Russian, and to my mind, this first and foremost means understanding the facts, assessing them, holding a public discussion of what’s happening, undertaking to deal with our past and present. In this sense, all of us do need to be held responsible, because we all are a part of this nation, a part of this society. If this is not done, any measures by other states in this sense will be useless and even counterproductive.