“Biden Sanctions Plan Targets Russian Banks, Companies and Imports If Ukraine Is Attacked; The plan, which is still being finalized, would prohibit a range of activities,” Wall Street Journal, January 28, 2022.
U.S. prepares economic sanctions, but not sanctions that are actually likely to deter Putin.
The facetious faux headline of this article is meant to underline, despite the rhetoric, how defeatist President Joe Biden’s approach to Putin and Russia’s threatened invasion of Ukraine really is, and how unlikely it is to succeed in deterring Putin.
The most important thing to bear in mind about the United States’ actions in response to Russia’s mobilization of military forces near the Ukrainian frontier is that U.S. policy is being led by the same incompetent foreign policy team that gave us the decision to withdraw from Afghanistan.
That decision, with its botched execution, represents perhaps the greatest catastrophe in international politics since the betrayal of Czechoslovakia and the surrender of the Sudetenland to Adolf Hitler by Britain and France in September, 1938.
The American withdrawal from Afghanistan undoubtedly contributed to Putin’s assessment of Biden, and his decision to mobilize his military for a likely invasion of Ukraine.
Biden’s call with Zelensky on Thursday
Following Ukrainian President Volodymyr Zelensky’s call with Biden on Thursday, January 27, which reportedly involved a sharp difference of opinion as to whether sanctions should be imposed on Russia before, or only after, an invasion, there has been no sign that the U.S. is strengthening its array of threatened sanctions in a way that might actually deter Putin from invading Ukraine.
Macron’s call with Putin on Friday
The showboating of French President Emmanuel Macron in his call today with Vladimir Putin, following his ill-timed call for an independent European approach to European security earlier this week, was not helpful to a NATO alliance under U.S. leadership trying to impress Putin with its unity.
In 2014, France was a weak link in the array of sanctions imposed and threatened against Putin, as President Francçois Hollande blocked inclusion of defense sector sanctions and insisted on the delivery by France to Russia of two Mistral-class helicopter attack ships well into the fall, months after the Russian invasions of the Crimea and the Eastern Ukraine.
While in principle it is a good idea to keep talking to Putin, this is true only if such conversations are part of a single, coordinated strategy. If they are not, Putin will surely use them to try to stoke divisions among the allies. We don’t know if Macron’s call on January 28 was coordinated or not.
In any event, Macron’s call does not seem to have been successful, not even in terms of advancing the Minsk II negotiations in the so-called “Normandy format” (France, Germany, Russia and Ukraine). The group met, with lower-level representatives, earlier this week, on Wednesday, January 26. Nonetheless, Russia has denied OSCE monitors access to the region as they seek to monitor the ceasefire in the Donbas under the Minsk II accords.
This denial clearly suggests that the Russians have something to hide in terms of their mobilization of forces near the Eastern Ukraine region of the Donbas, where pro-Russian agents and Russian military control the territory.
U.S. calls for a meeting of the U.N. Security Council, but move appears perfunctory and not a serious effort to push the international law case against Russia
The U.S. has called for an “open” meeting of the U.N. Security Council for Monday, January 31, the last possible day before Russia takes over the rotating Presidency of the Council for the month of February. It is not clear if this call was for an “Emergency Meeting” of the Security Council. If it wasn’t, it should have been.
The call for a meeting on Monday and not Friday reveals the total lack of urgency which seems to animate the Biden Administration’s actions.
Having not heard any serious international law arguments criticizing Russia’s actions and threats against Ukraine, one must assume that the call for a Security Council meeting is just a perfunctory gesture. Someone must have woken up and realized that the Russians were assuming the Presidency of the Council on Tuesday, which could make convening a meeting more difficult.
International law and the Cuban Missile Crisis
Why the Biden administration has not used international law as part of its effort to deter Russia and to mobilize allies and coalitions is a mystery to those with any historical sense. In the past such arguments were critical components of the strategy to organize the international coalition in the Gulf War that repelled Iraqi troops after Sadam Hussein’s invasion and seizure of Kuwait in 1990.
In the the Cuban Missile Crisis in October, 1962, international law arguments were marshaled in the Organization of American States and the U.N. Security Council to great effect, in defense of the American “defensive quarantine” and interception of Soviet vessels headed for Cuba. These arguments were remarkable for their sophistication and the deftness with which they were deployed, as part of an integrated strategy of response to the Soviet Union’s provocation.
It is worth recalling and reflecting on the 1962 Cuban Missile Crisis in some detail.
The differences and similarities with the current Ukraine crisis are remarkable. Nikita Khrushchev, having witnessed the Bay of Pigs fiasco in 1961 and after meeting with John F. Kennedy in Vienna in the summer of 1961, made the misjudgment that Kennedy was not a strong leader and that he would not react strongly to the deployment of Soviet nuclear missiles in Cuba.
The parallel with Putin’s likely assessment of Biden after his meeting with him in June and the Afghanistan debacle is striking.
Kennedy had an extremely able foreign policy team. which his brother, Robert F. Kennedy, the Attorney General, pulled together and coordinated as the “Executive Committee” throughout the 13 days of the crisis. The “Ex-Comm” did an excellent job of advising JFK, assessing threats and weighing options, while helping to maintain control over military and other decisions.
In Moscow, Premier Nikita Khrushchev did not have sole decision-making authority, but rather was subject to the constraints of the Politburo, the highest decision-making authority in the USSR, which was a collective body with a number of members.
In the Ukraine crisis today, in contrast, we have Putin who is not subject to any collective decision-making constraints, on the one hand, and the incompetent foreign policy team and leadership of Joe Biden, on the other.
While the team’s incompetence was manifested in the Afghanistan debacle, there are undoubtedly many capable individuals working on the team and among American foreign policy officials (both military and civilian), and also many capable leaders among NATO and other allies.
One of the successes of Biden’s foreign policy team to date in the crisis has been the high degree of consultation with allies it has been able to orchestrate. Its principal weakness remains, unfortunately, the quality of the decision-making of its leader.
One can only hope that these officials and leaders will be able to guide and constrain Biden so that he moves in a smart and successful direction.
The U.N. Charter, international law, and the Security Council
The low regard in which Biden and his foreign policy team hold international law is starkly revealed by their failure to call out Putin and Russia with any specificity for Russia’s flagrant violations of fundamental norms of the U.N. Charter and peremptory norms of international law. The latter are mandatory law, from which there can be no derogation, not even by agreement (jus cogens).
Consequently, Putin’s demands for “legally-binding” agreements with NATO are spurious, as they would violate peremptory norms of international law, including that restated in Article 52 of the 1969 Vienna Convention on the Law of Treaties:
Article 52 Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
Putin and Foreign Minister Sergey Lavrov know this, which suggests the demands were merely a pretext for invasion.
In effect, Putin has launched a military challenge against the entire edifice of international law and institutions, which are built on the cornerstone of the United Nations Charter and its prohibition against the threat or use of force across international frontiers, and the principle of non-recognition of territory seized by aggression and the illegal use of military force.
In response, Biden has spectacularly failed to make a serious and sophisticated legal critique of Putin’s threats and actions. The latter include his invasions of the Crimea and the Eastern Ukraine in 2014, as well as his invasion of Georgia in 2008, and Russia’s continued occupation of portions of that country.
Further evidence of Biden’s and Secretary of State Anthony Blinken’s low regard for international law is the fact that Blinken has not named a State Department Legal Adviser to fill the position of the administration’s top expert on international law. Without a prominent international lawyer in this position, there is no one of great stature in the councils of government to raise and insist on full consideration of international legal arguments. This is of singular importance in the middle of the current crisis.
The call yesterday for a Security Council meeting to take up the Ukrainian crisis does not appear to signal a determination by the Biden Administration to make a serious effort to use international law to deter Putin in the present crisis.
The January 27 call for a Security council meeting was briefly a banner headline yesterday afternoon in The Guardian, a leading British newspaper. Within minutes, however, the headline and the story had disappeared, and on Friday there was no story in the Washington Post or the New York Times on the call for a meeting.
While the U.S. may not be determined to push the international law case against Russia in the Security Council, other members and allies may decide to take the initiative and do so on their own and in pursuit of their own interests.
Readers will be able to determine whether anyone is pushing a serious effort in this regard by learning whether or not a draft resolution has been presented, and who presented it. Ideally, the U.S. would develop the first draft, get Britain and others to co-sponsor it, then put all of its diplomatic resources behind efforts to get other countries to vote for it, and force a vote. Russia has no veto over such procedural decisions.
Had there been a serious shift of policy, U.S. officials would have briefed reporters, and the headlines and TV news programs would have been full of talk about international law and the Security Council.
This did not happen.
Instead, Defense Secretary Gen. Lloyd Austin grabbed the headlines with a news conference that focused on military capabilities and deployments.
If you see international lawyers and diplomats on television talking about international law, there may be some hope for diplomacy.
If you see generals talking about military capabilities and deployments, we may be headed toward a major ground war in Europe, with the attendant risks of escalation to a nuclear war.
John F. Kennedy read The Guns of August by Barbara Tuchman in 1962. We should all be reading it now. And another of her books which is highly relevant, The March of Folly (1984).
The Guns of August, which was published only months before the Cuban Missile crisis, appears to have had a deep impact on John F. Kennedy and his approach to decision-making during the Cuban Missile Crisis. Given how dicey that U.S.-Soviet nuclear confrontation was, it could be that one reason we are all here is that he read that book.
“How Barbara Tuchman’s The Guns of August influenced decision making during the Cuban Missile Crisis,” Reader’s Almanac (The official blog of the Library of America), March 19, 2012.
Peggy Noonan, one of the wise old hands in politics and foreign affairs who has a good memory, reminds us that there are nuclear weapons out there, and we should all be thinking about them.
Peggy Noonan, “The Ukraine Crisis: Handle With Care; Today’s arguments sound rote and thoughtless. For an example, look to George H.W. Bush in 1991,” Wall Street Journal, January 27, 2022 (6:31 pm ET).
“So let me say at least one constructive thing: that we don’t worry enough about nuclear weapons. We have lost our preoccupation with them. For leaders who remembered World War II, it was always front of mind. Now, less so. Which is funny because such weapons are in more hands now than ever before. The world we live in, including the military one, seems more distracted than in the past, less rigorous and professional.
“We’re used to being lucky. Luck is a bad thing to get used to.
“Shouldn’t the United Nations be involved? “Major land war,” “violation of state sovereignty”—isn’t this what the Security Council is for? As I write I hear echoes of Adlai Stevenson in the Cuban missile crisis. Stevenson asked the Soviet ambassador to the council, Valerian Zorin, if Moscow had missiles in Cuba: “Don’t wait for the translation, yes or no?” Then his staff produced huge photos of the missiles, which convinced the world who was right and who was wrong.
“If Mr. Putin is going to invade a sovereign nation, shouldn’t he at least be embarrassed and exposed in the eyes of the world? Shamed? Nikita Khrushchev was. The whole Soviet system was.”
The Trenchant Observer