Russia threatens further aggression against the Ukraine: The response of the West has been a bad joke; Putin must be stopped

Updated and revised

Let me say quite frankly that it pains our hearts to see what is happening in Ukraine at the moment, see the people’s suffering and their uncertainty about how to get through today and what awaits them tomorrow. Our concerns are understandable because we are not simply close neighbours but, as I have said many times already, we are one people. Kiev is the mother of Russian cities. Ancient Rus is our common source and we cannot live without each other.

–Vladimir Putin, speech to Russian parliament (Duma), March 18, 2014.

The full text of the speech is found here.

The Russian Threat

Vladimir Putin made clear in his victory speech to the Russian parliament or Duma, on March 18, 2014, that he considers the Ukraine and Russia to be inseparable.

See:

Michael Thurmann, “Deckmantel der Geschichte; Wie Wladimir Putin die Vergangenheit missbraucht, um seine Politik der Gegenwart zu rechtfertigen,” Die Zeit, 4. April 2014 (18:35 Uhr).

Ulrich Speck, “Die Ukraine-Krise bedroht besonders Deutschland;
Deutschland muss empfindlich auf die Aggression Russlands reagieren. Es wird auf der Seite der Verlierer stehen, wenn wieder das Recht des Stärkeren gilt, Die Zeit, 7. April 2014.

The Response of the West

The response of the West to Russian seizure and annexation of the Crimea has been to adopt targeted personal sanctions against less than three dozen individuals in Russia, the Crimea, and the Ukraine (Yanukovych), and one Russian bank.

In response to these sanctions, Putin has ruled out any discussion of a rollback to the status quo ante before the Russian invasion and annexation of the Crimea, massed 40,000 troops on the eastern and northern borders of the Ukraine, and fomented separatist demonstrations and protests in major Ukrainian cities with a large Russian-speaking population, following the same script as was used in the Crimea.

Meanwhile, the West has continued to engage in diplomatic conversations with Russia, with U.S. Secretary of State John Kerry in constant contact with Russian Foreign Minister Sergey Lavrov. The U.S. has been practically begging Putin not to invade eastern Ukraine, while demonstrating a shocking receptiveness, as revealed in background conversations reported in the press, to acceptance of the Russian annexation of the Crimea as a fait accompli–with no further sanctions.

The same naiveté that was in evidence when the U.S. and other Western nations totally failed to anticipate Putin’s military intervention in the Crimea is, shockingly, still operating.

Minimal sanctions were adopted after the Russian military intervention in the Ukraine, with the hope that by not angering Putin and providing him with an “off-ramp”, he would not annex the Crimea.

Within days, Russia annexed the Crimea.

Now, the West with its second round of sanctions, which are tragically disproportionate to the aggression which they aim to undo, hopes that Putin will not send Russian troops into other parts of the Ukraine.

They are also making plans to make some minimal efforts on the military front to reassure front-line NATO member states, like Latvia, Lithuania, and Estonia, of their commitment to mutual defense under Article 5 of the NATO Treaty.

As for the Ukraine, they are planning to undertake some joint exercises with the Ukrainian armed forces, NOT NOW, but sometime in the summer.

The Western states congratulate themselves on the “strong” measures they have imposed in their first round and second round of sanctions against less than three dozen individuals and one bank.

They have done virtually nothing to inflict real pain on Russia as leverage to force a withdrawal of forces and an undoing of the annexation of the Crimea.

Is there anything in this mix that is likely to force Putin to restore the status quo ante in the Crimea?

Hardly.

Given the weak responses of the West, is there anything in this panorama that is likely to dissuade Putin from dispatching troops to the eastern Ukraine to “protect” Russian-speaking populations from persecution and abuses?

Hardly.

Russia itself, in a replay of the Crimean script, is doing everything it can to stir up disorder in Russian-speaking areas of the Ukraine.

The “Rational Actor Fallacy”

See “The “Rational Actor” Fallacy and Stopping Syria’s Atrocities—Obama’s Debacle in Syria — Update #8 (March 9),” The Trenchant Observer, March 9, 2012.

“The Rational Actor Fallacy” should also be borne in mind. The entire sanctions approach of the West is based on the assumption that Russia’s actions will be decided by the functional equivalent of a single rational mind, in an analytic paradigm in which costs to Russia–present and future–will be carefully weighed in reaching any decisions.

Putin, however, has unleashed forces which he may not be able to control. His propaganda machine has generated nationalistic passions in Russia, organizational processes within the government are operating, and personal commitments by bureaucratic leaders and decision makers have been secured, all of which may inevitably lead to military intervention in the Ukraine (whether by stealth or otherwise).

If this is true, the only thing which might reverse the current momentum of events could be sharp responses by the West that are sufficient in magnitude to force reconsideration in Russia, by all of the actors involved, of decisions already taken or well in progress–which will not otherwise be reversed.

In this context, the finely-tuned calculus of costs and benefits which Obama, the EU, and NATO believe will be decisive may simply be irrelevant. There is already persuasive evidence that Russia’s long-term interests, or even Putin’s, are not having an impact on Russian behavior.

The Real Choice for the West

The greatest question is whether it might prove easier to get Putin to withdraw his forces from the eastern Ukraine after a Russian invasion than it might be to dissuade him from such further aggression, by leaving no room for doubt in his mind about the consequences of such an action, including military consequences.

One measure which might focus the minds of the adventurers currently leading Russia would be to dispatch 20,000 Western troops to the Ukraine NOW–from NATO if possible, or from France and / or the United States if unanimity among the 28 member states of NATO proves unachievable. The troops could be dispatched in response to a request from the Ukraine, in exercise of the inherent right of collective self-defense recognized by Article 51 of the U.N. Charter, in full accordance with international law.

Ukrainian territory–the Crimean peninsula–remains under Russian occupation following its aggression against the Ukraine.

Moreover, having abrogated the treaty arrangements which granted Russia the right to maintain a certain number of troops and its naval base at Sevastopol (the terms of which to be sure were violated during the Russian invasion), if that termination is legally valid (which is dubious), there would be no legal basis under international law for the presence of any Russian forces in the Crimea.

Russia incidentally is committing economic aggression against the Ukraine by raising the price of gas above market levels, and insisting that the Ukraine repay $11 billion in discounts which it granted to the Ukraine in exchange for an extension of the naval base agreements.

The Russian legal argument for repayment of the discounts is ludicrous, in effect claiming that they don’t owe the Ukraine any discounts under the treaty because the Crimea is a part of Russia. In other words, if you have a lease and related agreements with another country for the use of certain assets, and you invade that country and seize those assets by military force, the original obligations are void. Unbelievably, that is the Russian position.

Not one independent court in the world, domestic or international, would uphold that argument. But then the Russians are not thinking in terms of independent courts, or international law as it might be determined by an independent international tribunal.

Urgent Measures to Stop Russian Aggression

It is quite possible that the invasion of Russian-speaking regions of the Ukraine will take place in the near future, within weeks if not days, long before Europe can develop a consensus on how to block such action. This is precisely what happened in the Crimea, and there is every reasons to suppose that Putin is similarly prepared to move quickly, before effective blocking measures can be adopted by the West.

Consequently, at this very moment the West may be facing its last chance to block a Russian invasion of the Ukraine. Before it is too late, NATO and the West should consider and adopt the following measures on an extremely urgent basis:

1. The first step, which should begin immediately, is for the U.S. and the EU to adopt new sanctions that would prohibit any U.S. or EU financial institution or company from handling transactions or doing business with any financial institution doing business in the Crimea, or any Russian or other company doing business in the Crimea, until such time as the annexation and military occupation have been undone, restoring the situation to the status quo ante prior to Russian military intervention.

The sanctions should be adopted as permanent sanctions which will not be lifted until the stated conditions are met.

The current EU sanctions are valid for only six months and must be renewed in order to be continued. Given this proviso, it is no wonder that Putin hasn’t taken them seriously.

Moreover, the precedent of only a six-month authorization, in Putin’s thinking and probably that of the EU nations, would also be used even if so-called “third-stage” sanctions are adopted by the EU in response to further aggression. That means that in six months Russia would only have to peel off one EU member state in order for the sanctions to lapse.

2. The second measure, which should be implemented immediately, is the dispatch to the Ukraine of 20,000 troops from NATO or individual Western countries to assist the Ukraine in its defense against current and threatened Russian aggression.

3. NATO should immediately issue a statement saying that in view of Russian aggression and the threat of further aggression against the Ukraine, its earlier statements that the use of force is not under consideration are no longer in effect, and that it will respond to any military aggression in the Ukraine in a manner which is appropriate under the circumstances.

4. Certain so-called “third-stage sanctions” should be progressively implemented over the next six months if Putin does not restore the Crimea to the status quo ante prior to the Russian invasion. The sanctions should be carefully planned, be meaningful, and progressively implemented in accordance with a time table which is made public. The message to Putin should be, loud and clear: The annexation of the Crimea will not stand.

Putin must be stopped.

The Stakes

Europeans and Americans should stop to think for a minute of the sacrifices their countrymen have already made to ensure that no further territories will be invaded or annexed–as in WW II, for example. Both the Korean war and the Gulf war were fought to uphold this principle. Many in the U.S. also believed that the Vietnam war was a response to invasion from the North (which in fact turned out to be the case, we now know).

If they do stop and think, they may come to understand that we are no longer in normal times, and that what is perhaps the greatest threat to international peace and security since the Korean war must be confronted directly, now, and if necessary by the defensive use of military force.

This is a tall order for the leaders of Europe, the U.S. and the West, who up until now have manifested strong pacifist inclinations and a willingness to consider appeasement in response to the Russian takeover of the Crimea.

But no less than this is required, if the postwar political, economic and legal order is to be upheld and maintained.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

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.