1) Nolan Peterson, “Kyiv Waits for a Russian Invasion; Polls find at least one-third of Ukrainians are ready to take up arms to resist,” Wall street Journal, January 20, 2022 (12:56 pm ET);
2) Katja Hoyer, “Germany has become a weak link in NATO’s line of defense,” Washington Post, January 21, 2022 (11:19 a.m. EST).
In 1938, Adolf Hitler, with German troops massed to invade Czechoslovakia, challenged the world.
Der Führer and the Third Reich engaged in a frontal assault on the entire system of international law and international peace and security, the entire international legal framework established by the 1919 League of Nations Charter and the 1928 Kellogg-Briand Pact outlawing the use of aggressive war as an instrument of national policy.
Neville Chamberlain of Britain and Ėdouard Daladier of France capitulated to Hitler in the infamous Munich Pact of October 1, 1938, which ceded the German-speaking Czech territory known as the Sudetenland to Germany.
The capitulation at Munich turned out to be the first step in the final collapse of the international legal order. Earlier, Japan had invaded China’s Manchuria region in 1931, and established the puppet state of Manchuko in defiance of international law. The Munich Pact was the coup de grace for the demise of the existing international legal order. Germany invaded “rump” Czechoslovakia in March, 1939, and on September 1, 1939, Hitler invaded Poland setting off World War II.
It was in the ashes of World War II that the United Nations was founded, in 1945, built on the cornerstone of the prohibition of “the threat or use of force against the territorial integrity or political independence of any state,” in the words of Article 2 paragraph 4 of its Charter.
Earlier, in 1932, the United States had announced in its “Stimson Doctrine” that it would never recognize a government or territory established through the illegal use of force. Following the Soviet conquest of the Baltic republics, this
doctrine was restated in the Welles Memorandum of July, 1940. The U.S. never recognized Manchuko, or the Soviet governments of Latvia, Lithuania, and Estonia.
The principle became a peremptory norm of international law (jus cogens), now restated in Article 52 of the 1969 Vienna Convention on the Law of Treaties.
Just as Manchuko and the Baltic states conquered by Russia were never recognized, Putin’s military conquest and purported annexation of the Crimea will never be recognized under international law. Nor will any territory seized or government established following any invasion of Ukraine.
As Hitler did in 1938, Putin now challenges the entire system of international law, which goes back to Hugo Grotius and the 1648 Peace of Westphalia. That peace concluded the Thirty Years’ War, which was the world war of the 17th century.
With his threatened and perhaps imminent invasion of Ukraine, Putin is challenging the entire system of international law and the United Nations Charter including its provisions for the maintenance of international peace and security.
Putin’s threat may be parochially perceived by some in Europe as a threat to the “European Security Order”, but in fact it is much more than that. It is a frontal attack on the international legal norms and institutions which safeguard the security from military attack of every country in the world, and every territory with an established international demarcation line, such as Taiwan.
The U.S., NATO members, and other countries in the region have not risen to effectively meet the threat, or are only belatedly beginning to do so.
If the threat is as great as that outlined above, how could it be sufficient to simply threaten economic sanctions and other non-military measures in the event Russia invades Ukraine?
If these deterrent threats do not appear to be working, as preparations for a Russian invasion continue while diplomatic negotiations show no promise, is not more required?
Once the evil of war is loosed upon the world, no one can predict what course it may take. One should recall the rosy predictions in August, 1914 of those who launched WWI, expecting six weeks of hostilities. It didn’t work out that way.
Additional measures to deter Putin should include:
1) Massive airlifts of military equipment and supplies to Ukraine, on an extremely urgent (not bureaucratic) schedule;
2) A statement by NATO-member and other countries that they may come to the assistance of Ukraine with military force if it is invaded by Russia, in exercise of the inherent right of collective self-defense recognized by Article 51 of the U.N. Charter;
3) Germany should state clearly, immediately, and unequivocally, that it will support expulsion of Russia from the SWIFT international payments system if Russia invades Ukraine. Germany’s ambivalence on this point has greatly diluted the deterrent force of threats to adopt this measure.
Germany should also state unequivocally, and immediately, that if Putin invades Ukraine, it will kill the Nordstream II gas pipeline project and will never authorize it to operate in its territory.
Germany, which was responsible for the collapse of the international legal order beginning in 1938, owes the world at least these two measures.
Politically and financially, these steps will not be easy to take. Germany now stands at the center of the world stage, with a potentially decisive voice in Putin’s calculations. International law and international order require sacrifices. These, however, are minimal when compared to the sacrifices of war.
4) The U.S. and/or other members of the U.N. Security Council, together with Ukraine, should immediately call for an emergency meeting of the Security Council, and table a Resolution which condemns Russia for threatening the use of force in violation of Article 2 paragraph 4 of the U.N. Charter.
This would provide an opportunity for all members of the Security Council to state their views on the situation and the international law provisions involved, including fundamental norms of the U.N. Charter.
It would also require Russia to set forth its legal arguments in advance of, not after, any invasion.
As for the Resolution itself, Russia can be expected to veto it. But it will be most interesting to see if China exercises its veto or merely abstains on the vote.
As soon as Russia vetoes the Resolution, it should be taken up in the General Assembly.
Russia appears to be moving swiftly toward launching an invasion of Ukraine.
Taking the issue to the U.N. Security Council and the General Assembly should have the immense benefit of slowing down the Russian train that is headed toward war.
The Trenchant Observer