Western diplomats stumble in the Ukraine—-Stop telephone diplomacy, let Germany lead, and publish serious international law memoranda

Updated March 7, 2014

Western leaders have made three major blunders since the Russian military takeover of the Crimea first began on or around February 25.

Telephone Calls to Putin

First, they have engaged in a series of telephone calls to Russian President Vladimir Putin and his foreign minister, Sergey Lavrov. Obama’s calls to Putin, who is reliably reported to detest him, have had no positive effect and may well have stiffened his resistance to the conciliatory proposals from the West. Even Angela Merkel’s calls directly to Putin have probably been ill-advised.

Such calls may in some circumstances be useful if their occurrence and content is kept private. While they may satisfy a hunger for instant gratification in the age of the Internet, decisions to deploy tanks and military ships are not likely to be reversed by e-mails or telephone calls, which between heads of government are probably heavily scripted, and further distorted by the use of interpreters.

Moreover, formal written communications have the advantage of permitting a wider range of officials with different perspectives to participate in their review and offering suggestions for response. Both with Putin and with Obama, and probably other government leaders as well, the quality of the exchange is likely to be improved by wider internal review and additional time to formulate policy and decisions.

On the Charlie Rose show on March 5, Henry Kissinger provided a powerful explanation of why direct communications between heads of government is usually a poor idea. This seems to be all the more true in a crisis like the one in the Ukraine, folllowing Russian military intervention in the Crimea, which remains under Russian military control and occupation.

Today, again, we learn that Obama called Putin and during a substantive call made no progress.

See “Ukraine-Krise: Putin bleibt hart in Telefonat mit Obama; Eine Stunde lang haben Putin und Obama die Lage auf der Krim beredet. Doch an dem Kurs des russischen Präsidenten hat das nichts geändert – er sagt: Russland dürfe die Hilferufe aus der Ukraine nicht ignorieren,” Der Spiegel, 7. Marz 2014 (6:45)

Generally, particularly in the case of Obama, such telephone calls and background briefings on their content are used as part of a campaign to show others Obama is doing something and Putin is being unreasonable.

Urgent Advice: Take the telephone away from Obama. He has not charmed or persuaded Putin, and he isn’t going to.

(Quote from Kissinger)

Trying to Force the Russians to meet with Ukrainian Officials

The second mistake Western diplomats have made in recent days is to try to force the Russians to sit down at the same table and talk to representatives from the new government in Kiev. This has been a huge blunder, confusing the goals of process with those of substance. The substantive but secondary goal is to get Russia to recognize the government in Kiev. The primary goal should be to persuade the Russians to cease and desist from further provocative actions in the Crimea and in the Eastern Ukraine, whether executed directly by Russians or Russian-speaking supporters. Such actions could–whether by design or inadvertence–ignite the flames of war.

In short, the highest substantive goal in the next few days should be to halt the Russians’ provocations and inflamation of passions. The second substantive goal should be to obtain formal Russian acceptance of OSCE and other observers, and to provide formal guarantees of their physical safety.

The ill-advised efforts to force the Russians to talk to the Ukranians before the stage is set, and the Russians want to, only aggravates the circumstances in which substantive diplomatic activity can take place.

These attempts to force the Russians to talk to the Ukranians reflect the same demented logic according to which simply getting the al-Assad goverment to meet with the opposition at the Geneva II Conference in June would somehow produce a miraculous breakthrough. It didn’t, and it was foolish to think that it could.

American Efforts to Assert its Leadership in Responding to Russia

The third development, unfortunate in the extreme, is that the United States is now seeking the mantle of leadership of the West in relations with Russia in connection with the crisis.

American policy in the Ukraine has not been an unqualified success, with Victoria Nuland’s “F… the EU” cell phone call revealing both deep American involvement with the opposition and disdain for EU leaders and their efforts to resolve the Ukrainian crisis.

And it hasn’t stopped. Only days sgo, a high U.S. official (a woman) was quoted on background in the German press as being highly critical of Angela Merkel, who was far too slow and deliberative in this official’s view. Such American officials do not understand the requirements of diplomacy, and should be immediately removed from the policy making process.

On March 7, 2014, on the Charlie Rose show, Tom Donilon, the former National Security adviser, stressed the importance now of the United States’ reasserting its leadership of the West.

The problem here is that Obama and his foreign policy team have been largely incompetent in dealing with the most urgent foreign policy questions of the last five years. While John Kerry has his strengths (and weaknesses), and Samantha Power provides capable and clear-eyed leadership as Ambassador to the U.N., Obama continues to maintain tight White House control over the making and execution of foreign policy. We and the world, looking at the cumulative evidence, know he is not very good at it. For example, Angela Merkel shared with Obama her perception from talking to Vladimir Putin on the phone that he was “in another world”. Obama promptly leaked this quote to the world, which was probably not helpful in terms of influencing Putin.

With respect to the Ukraine, Obama’s “reset” of relations with Russia undid the measures George W. Bush had implemented to punish Russia for its military intervention in Georgia–without any change in Russian behavior or resolution of the issues in Georgia, where Russian troops remain in enclaves in what amounts to de facto recognition of the fruits of Russian aggression.

Moreover, if Obama had not blinked at the moment of truth when he needed to pull the trigger to launch missiles against Syria, following the use of chemical weapons by Syria at Ghouta on August 21, 2014, Putin in his calculations might have taken the U.S. more seriously and never launched his military takeover of the Crimea.

The Observer’s advice is, “If you’re going to drive from behind (or slumber in the back seat), stay in the back seat and let others who know how to drive drive the car.”

Only two and a half weeks ago, the German, Polish and French foreign ministers hammered out a transition agreement whereby Yanukovych would yield partial power to a transitional government. To be sure, the deal fell apart when the Ukrainian negotiators could not deliver the crowd at the Maidan, the regime collapsed, the parliament relieved the president of his office, and the latter fled first Kiev and then the country. Still, the agreement was a brilliant piece of statecraft.

In the present situation, Obama is in no position to give Vladimir Putin lectures on international law, a concept which the president has only recently introduced into his discourse. Obama’s failure to prosecute officials responsible for torture as required by the U.N. Convention against Torture, his continuing use of drone strikes frequently in apparent violation of international law (particularly outside the war theater of Afghanistan and Pakistan), the continued detention without trial of prisoners at Guantanamo, and NSA’s massive surveillance around the world in violation of constitutions and international law, all strongly suggest Obama is not the best leader to take the lead in the media in making the legal case against Russia.

The U.S. also has a troubled record of its own interventions, including those in the Dominican Republic (1965) and Grenada (1983) which were justified, at least in part, under the rubric of “intervention to protect nationals”.

Germany is a better choice. The U.S. can take the lead with France and Britain in the Security Council.

That is not to say the U.S. in the U.N. and elsewhere should not make the strongest possible legal arguments against the Russian military intervention, in writing. It only means that the U.S. should carefully coordinate its efforts with the Europeans, and avoid undercutting Angela Merkel’s leadership, in the media.

This is not a time for a lot of wordsmithing and speeches and statements by Barack Obama and his administration. The focus, instead, should be on presenting serious and detailed legal memoranda in relevant forums, and on taking concrete actions such as imposing sanctions with real teeth on Russia and Russians.

Consideration should also be given to imposing EU and U.S. travel bans, and more, on individuals in the Crimea who have actively collaborated with Moscow in its military takeover, and who have joined efforts to provoke a secession from Ukraine and annexation of the peninsula by Russia.

The U.S. should work to coordinate its actions with the EU, and to persuade EU leaders behind closed doors, but should let Angela Merkel lead and coordinate the European response to Vladimir Putin’s military intervention in the Ukraine. The Germans and the Poles know the Ukraine, and Putin, far better than does the U.S., and should be allowed to lead. Merkel is the most powerful and respected leader in Europe, has an important relationship with Putin, and also has the experience and insights gained from having grown up in East Germany when it was a police state under Soviet domination.

As suggested above, even as Merkel leads, the U.S can push hard on implementing sanctions while still setting forth its international law arguments in written form, presenting them to the Security Council and also publshing them elsewhere.

Summary of Recommendations

In sum, the Observer’s advice is:

1. Stop the telephone diplomacy with Putin.

2. Don’t try to force the Russians to talk to the Ukrainians before the stage is set, and the Russians have assumed a more conciliatory posture as a result of pressure from the EU and the U.S. The Ukraine’s fate will be decided by the major powers, though the actions of the Ukrainian government will have great import. The biggest challenge for the West is to forge unity behind strong positions, avoiding disarray which can only work to Russia’s advantage.

3. Obama should let Germany, and France and Poland, lead. Obama has important cards to play, but he should keep them close to his vest, and not go channeling his thought processes to the press on background or on TV, through Ben Rhodes or other government officials. He should speak instead with actions, as he did today with the announcement of the first sanctions against Russia and Russians, to take immediate effect.

Among the most important of these actions would be to publish serious and detailed legal memoranda rebutting Russian legal justifications and setting out clealy how its military intervention in the Ukraine has violated international law’s most important prohibitions, as well as treaties and agreements such as the 1994 Budapest Memorandum guaranteeing the territorial integrity, sovereignty, and political independence of the Ukraine.

The Trenchant Observer

(Der Scharfsinniger Beobachter)
(L’Obervateur Incisif)
(El Observador Incisivio)

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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