The fatal flaws in U.S. thinking about responses to Russian aggression against Ukraine–UPDATED January 14, 2022

Update
January 20, 2022

Given the continued use of the terms insurgents and insurgency to describe future Ukrainian forces fighting against invading Russian troops, Congress should appropriate funds to purchase dictionaries for all military officers, and immediately for all military officers serving in foreign policy decision making or advisory roles.

Dictionary Definition:

WordReference Random House Unabridged Dictionary of American English © 2022
in•sur•gen•cy (in sûr′jən sē), n., pl., -cies for 4.

Government the state or condition of being insurgent.
Government insurrection against an existing government, usually one’s own, by a group not recognized as having the status of a belligerent.
Government rebellion within a group, as by members against leaders.
Government insurgence.

See, in addition to the articles cited below, the following:

Anthony Faiola,”How far would the United States go to back Ukraine?”Washington Post,
January 21, 2022 (12:01 a.m. EST).

Update
December 14, 2022

See,

Helene Cooper, “U.S. Considers Backing an Insurgency if Russia Invades Ukraine; Conversations about how far the United States would go to subvert Russia in the event of an invasion have revived the specter of a new Cold War, New York Times, January 14, 2022 (Updated 2:45 p.m. ET).

***

Original article
Published January 10, 2022

See,

1) David E. Sanger and Eric Schmitt, “U.S. Details Costs of a Russian Invasion of Ukraine; The Biden administration and its allies are developing new possible sanctions ahead of a series of meetings to defuse the crisis with Moscow,” New York Times, January 8, 2022.

2) David Ignatius, “Biden wants to turn Ukraine into a porcupine,” Washington Post, January 6, 2022 (5:17 p.m. EST).

3) David Ignatius, “The Biden administration weighs backing Ukraine insurgents if Russia invades,” Washington Post, December 19, 2021

As far back as December 19, David Ignatius reported on a telltale fatal flaw in U.S. thinking about how it and NATO would respond to a Russian invasion of Ukraine.

He reported that American military advisors and policy makers were discussing how to provide assistance to Ukrainian “insurgents” or a Ukrainian “insurgency”. Ignatius on January 6 and David E. Sanger and Eric Schmitt on January 8 report that policymakers are still using the same terminology.

In doing so they have framed the question in a way which naively fails to take international law into account, much less to use it actively to achieve American deterrence goals, while employing a conceptual framework that assumes Ukrainian defeat. They are talking in terms of providing military assistance to “insurgents” after Russia has taken over Ukraine.

The conceptual framework assumes defeat, while completely ignoring international law and the U.N. Charter.

This approach reveals that the military, not the international lawyers or diplomats backed by international lawyers, are setting the terms of the internal U.S. policy debate.

This development calls to mind the old maxim that “Military justice is to justice as military music is to music.”

In the current situation, we might just as aptly say, “Military foreign policy is to foreign policy as military music is to music.”

It is painful to have to explain to Biden’s incompetent foreign policy team that soldiers of a legitimate government of a sovereign country are not “insurgents” but rather soldiers fighting in yje nation’s lawful self-defense to repel aggression against their country involving invasion of its sovereign territory, in flagrant violation of Article 2 paragraph 4 of the United Nations Charter.

The Ukrainian soldiers would constitute a Resistance against the invaders, just as the French Resistance sought to repel the aggression of an invading German army in World War II.

A second, glaring, defect in the American approach to deterring a Russian invasion of Ukraine is the statement by President Biden that he was ruling out the use of force in response to a potential Russian invasion.

In this kind of face-off, it is hard to see the advantage of revealing one’s bottom line in advance of any confrontation. One has to ask how one thinks the 1962 Cuban Missile Crisis would have worked out if John F. Kennedy had announced he was taking the use of force off the table. Putin through his surrogates has explicitly referred to the threat of nuclear war. Such threats were enough to make Obama blink in 2014. By taking force off the table, has Biden already blinked?

A third defect in the American approach is that officials are blabbering to reporters off the record, laying out their strategic thinking and what they anticipate Russia may or may not do. This shows the American government lacks discipline among its ranks, opening the way to misunderstanding on the part of Russia.

It is natural for different policymakers to advocate different policy options, such as whether or not to expel Russia from the SWIFT international payments system. It is surprising that such differences seem to persist this late in the game. It us utter folly to conduct these arguments in the press, showing Putin divisions among policymakers that may dilute the impact of any direct communications to the Russians through formal diplomatic channels.

The available evidence suggests there are no strong advocates of using international law among top decision makers in the Biden Administration. This means that the U.S. is not likely to even press its international legal case in the U.N. Security Council and the General Assembly, in effect leaving Putin to trample on the U.N. Charter without even putting up an argument. Putin could hardly wish for more.

With Biden at the helm, with the foreign policy ream that gave us the calamity of the Afghan surrender and withdrawal, negative outcomes with Russia in Ukraine are more likely than they would be if the U.S. had a vigorous foreign policy led by competent and experienced people.

In effect, Biden has acceded to Putin’s assertion that the Ukraine and respective spheres of influence in Europe should be decided by power politics, by Machtpolitik–and international law, the U.N. Charter and the postwar international legal order be damned.

Senators and House members in Congress must stand up and ensure that competent people are running U.S foreign policy, and in a manner that stiffens Joe Biden’s spine.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and 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. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , 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, Dr. Rowles 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. Dr. Rowles 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.=LL.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, Dr. Rowles 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 some the best articles that have appeared in the blog.

Be the first to comment on "The fatal flaws in U.S. thinking about responses to Russian aggression against Ukraine–UPDATED January 14, 2022"

Leave a comment

Your email address will not be published.


*


This site uses Akismet to reduce spam. Learn how your comment data is processed.