The Ukraine: Continuing Russian aggression, and the actions the circumstances require

How the West and other civilized nations should respond–at this point–to Russian aggression in the Ukraine

Advice for foreign policy decision-makers in Europe and the United States:

1. Speak first of real “sanctions”, not “targeted sanctions”.

Jettison the illusions that the latter will change Russia’s course of action. Call the latter “targeted individual measures”, not “sanctions”– which is a highly misleading term when used to refer to “pinprick” measures in this context.

2. Immediately provide the Ukraine with military assistance.

Provide Ukraine with modern military equipment with which the armed forces can defend themselves and their country. Supply modern aircraft with advanced air-defense systems, at least one for every plane shot down by Russia or Russian-supplied missiles.

Provide other substantial military assistance, including sophisticated modern weapons.

3. Prepare contingency plans to respond to any nuclear threats by Putin.

Prepare military contingency plans to be used in case Putin resorts to threats of using nuclear weapons. He and Mededev have made such veiled threats in the past. Putin has undertaken a course which could put his regime at risk.

See Maksym Bugriy (The Jamstown Foundation) “Nuclear Deterrence in the Context of the Ukrainian-Russian Conflict,” Eurasia Daily Monitor Volume: 11 Issue: 135, July 24, 2014 (06:48 PM).

Russia’s invasion of the Ukraine has led to a hot war where four nuclear powers support opposite sides (Russia and the U.S., as well as NATO members Great Britain and France).

Prepare for all contingencies.

4. Immediately halt delivery of all military equipment and technology to Russia.

Immediately halt all deliveries of military equipment and training of Russian forces (e.g., on how to operate Mistral-class warships, currently underway in France).

Avoid the political temptation to block only future contracts and deliveries. This is a matter of national security for all of the countries of NATO and the EU, as well as other civilized countries.

This is not an issue of honoring contracts, but rather of implementing the peremptory government decisions necessary for national defense.

The U. N. Charter authorizes measures of collective self-defense under Article 51, in response to armed attacks in violation of the prohibition of the threat or use of force contained in Article 2 paragraph 4 of the Charter.

These norms are universally recognized as jus cogens, i.e., peremptory norms from which there can be no exception by way of agreement. They override all other treaty norms, and any penalty clauses in the French contracts for the delivery of two Mistral-class warships to Russia, for example. Consequently, an international court or arbitral panel would be unlikely to uphold the penalty provisions in these contracts.

5. Move large numbers of NATO troops to Eastern European states that border Russia.

Lead NATO in reaching firm decisions to move NATO forces to forward bases in Lithuania, Latvia, Estonia, Poland, and Romania. Begin initial deployments immediately.

6. Select a strong EU foreign minister who can lead responses to Russian aggression.

Eschew normal political bargaining and elect Radoslaw Sikorski, or someone with his qualities (extensive experience as foreign minister, strong record on standing up to Russia and of successful negotiations) to be the new EU foreign relations chief. The Italian candidate, Foreign Minister Federica Mogherini, is hopelessly compromised because of her dealings with Russia after the invasion of the Crimea, in addition to her lack of experience, and should not receive further consideration.

Avoid selection of a compromise candidate who represents the lowest common denominator in Europe.

Sikorski was taped in a private conversation allegedly speaking disparagingly of American relations with Poland. U.S. Assistant Secretary od State State Victoria Nuland in a much more significant official though private communication, said, “F… the EU!” Call it even, and elect Sikorsky. He has demonstrated great abilities as foreign minister of Poland, and is uniquely qualified to lead the EU in meeting the challenge of Russian aggression in the Ukraine.

7. Stop threatening and start implementing sectoral sanctions.

Stop threatening serious sanctions in illusory attempts to influence Putin’s and Russia’s actions, and start implementing sectoral, stage-three sanctions immediately.

The threats have not worked, and they are extremely unlikely to work in the future. Empty threats only confirm Putin’s belief that he can “outfox” the West, and that he can continue to act with virtual impunity.

The “rational actor fallacy” should be avoided. The authoritarian state of Russia, caught up in the extreme emotions of xenophobic nationalism and unchecked military aggression, is not likely to act as a single rational mind calculating both long-term and short-term benefits. What drives Putin and his coterie is greed and the unquenchable thirst to remain in power.

Instead of talking about imposing “additional costs” on Russia, a formulation which implicitly rests on “the rational actor fallacy”, the West should be speaking of halting Russian aggression and reversing its effects.

The focus should not be on attempting to change Putin’s behavior through threats of future sanctions, but rather on changing NATO and EU minds so that forceful actions can be taken now to stop Putin and Russia.

8. Publish detailed white papers.

Publish detailed white papers detailing Russian acts of aggression in the Crimea and in the eastern Ukraine.

9. Publish detailed legal memoranda.

Publish detailed legal memoranda setting forth Russian violations of international law, including in particular Article 2(4) of the U.N. Charter, and justifying measures taken in response under Article 51 of the Charter and other provisions of international law.

10. Lobby governments not to abstain on votes in the General Assembly.

Actively lobby all governments, including in particular the BRICS and other countries which abstained on General Assembly Resolution A/RES/262 approved on March 27, 2014. Make it clear to these countries that their votes in the General Assembly affect the vital national security interests of Europe, NATO, and the United States, and that they will weigh heavily in considering bilateral issues and concessions. In short, make it clear to them that they will pay a significant price in the future if they vote against or abstain on resolutions such as G.A. Resolution 262 (March 27, 2014).

11. Stop “telephone diplomacy” and meeting publicly with Russian officials.

Stop the constant telephone calls to Putin, Foreign Minister Sergey Lavrov and other Russian officials, and stop public meetings with them. These actions have led to an excessive informality, and the cutting out or by-passing of other officials and experts in government decision processes. These two consequences have undermined the interests of the Western countries. Such informal conversations and meetings allow Putin to finely gage the resolve of leaders from different countries, and to use this information to divide them, particularly whenever the threat of the imposition of really serious sectoral sanctions becomes real.

In a word, get serious and take forceful action in response to the Russian aggression in the Ukraine. Take actions that are commensurate with the gravity of Russian violations of international law that have been committed and are still underway.

These violations constitute grave threats to peace and the national security interests of each nation concerned.

The Trenchant Observer

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.