Draft – Developing
There were many important developments in the Ukraine Crisis today, and some revealing ones in the last few days, including the following:
1) German Chancellor Olaf Scholz (SPD) met with Vladimir Putin in Moscow on Tuesday, and was very strong and impressive, as accounts in the German press made clear this evening. He didn’t let Putin push him around, refusing to submit to a Russian PCR covid test by Russian doctors; he offered instead to let a Russian doctor observe the PCR test and procedures on his airplane.
Perhaps the most striking aspect of his joint press appearance with Putin was that, arrayed against the four Russian flags behind Putin’s podium, on Scholz’s side were two German and two EU flags, offering mute testimony that he was not only speaking for Germany but also in staunch solidarity with the other 26 members of the EU.
Scholz did not let Putin push him around verbally either. When Putin tried to make propaganda points, Scholz countered swiftly with sharp retorts. He raised the case of Alexander Navalny, who was coincidentally in court today on another trumped-up charge. He put in a strong word for the Russian NGO Memorial and its work clarifying the deaths of Russian victims of World War II (and other wars).
When Putin praised former German Chancellor Gerhart Schroeder–head of the board of Nordstream II and head of the board of directors of Rosneft, who was just named to the board of Gazprom, the Russian energy goliath which is the largest state-owned company in Russia–Scholz said curtly that he had nothing to say about the private-sector activities of a former Chancellor. He is the Chancellor now.
Scholz is going to be a great Chancellor, ably picking up the mantle of Angela Merkel CDU), with whom he worked closely for many years as Minister of Finance in the former CDU-SPD coalition government. He, not Emmanuel Macron, is likely to be the strong leader among national leaders in the EU in the years to come.
That is the good news coming our of Moscow and Berlin today.
2) Putin gave hints that he favored continued negotiations, and Russia even announced that some troops were returning to their home bases. The U.S. and its allies reacted cautiously, observing that they had seen no signs so far of such withdrawals on the ground.
3) Joe Biden gave a very strong 10-minute speech, stressing that while the U.S. and its allies were seriously open to negotiations on security issues, they would not discuss basic principles such as the sovereignty and territorial integrity of states. He also stressed, in very strong terms, that they were prepared to react swiftly and strongly should Russia undertake military action against Ukraine, and that they were also prepared to respond to cyber attacks.
4) Meanwhile, the Washington Post reported on the great extremes Russia has gone to in positioning land, sea, air and rocket forces in positions where they could block any attempts by NATO to come to the assistance of Ukraine, in the event of a Russian invasion. It would even become impossible or extremely dangerous to try to fly into Kviv.
Paul Sonne and Ellen Nakashima, “Russia aims to ward off NATO in the event of a Ukraine invasion,” Washington Post, February 15, 2022 (8:41 p.m. EST).
5) On Sunday, February 13, Linda Thomas-Greenfield, the U.S. Ambassador to the U.N., announced that she was canceling a trip to Liberia in order to prepare for the U.N. Security Council meeting on the Ukraine scheduled for Thursday, February 17.
The Observer’s first reaction was astonishment that they were only canceling the trip on Sunday, perhaps indicating a continued under-appreciation of the importance of the United Nations Security Council in term of building support around the world for the legitimacy of the U.S. and allied position vis-à-vis Russia. The meeting will be particularly important, and perhaps a last opportunity in the Security Council, for some time, to set forth the legal arguments regarding Russia’s egregious violations of the U.N. Charter’s most important provisions and international law.
Then, the Observer reflected, Ambassador Thomas-Greenfield probably had a very good reason to be planning to go to Liberia, particularly in view of her prominent role as a U.S. ambassador in the region.
In any event, it is to be hoped that the Biden foreign policy team places very heavy emphasis on international law in preparing for the Thursday meeting, and that Ambassador Thomas-Greenfield presses home the international law critique during the course of the meeting.
A central point that should be stressed, but which has been largely neglected up until now, is that the prohibition in Article 2 paragraph 4 of the Charter is not only against “the use of force” but also against “the threat of the use of force” against the territorial integrity or political independence of any state.
The drafters of the Charter had fresh memories of Adolf Hitler’s threat of the use of force against Czechoslovakia, which resulted in the appeasement of Germany by Britain and France in the infamous Munich Pact of 1938.
Russia argues that it is free to move its troops wherever it wants within its territory. This is palpable nonsense. If accepted, the proposition would render the prohibition of the threat of the use of force virtually meaningless. This was not the intent of the framers of the Charter.
Putin has now provided the world with a textbook illustration of the evil which the prohibition of the “threat of the use of force” was meant to prohibit. Putin and Russia are beyond a shadow of a doubt guilty of making such threats, and in doing so creating a threat to international peace and security, in the words of Article 39 of the Charter.
1) Olivier CORTEN, Le droit contre la guerre, 2ème ed. (Paris: Editions A. PEDONE, 2014), pp. 141-192.
2) Nikolas STÛRCHLER, “The Threat of Force in International Law (Cambridge: Cambridge University Press, 2007).
6) Sadly, and perhaps tragically, Democratic and Republican Senators have not found the statesmanship necessary to agree on the provisions of a sanctions bill against Russia. If ever there were a moment when compromise is required, this is it. The Senators seem to have become lost in a theoretical argument over whether sanctions should be applied before, or only after, Putin invades Ukraine.
Perhaps clarity on the violation of the Article 2 paragraph 4 prohibition of “the threat” of the use of force could enable them to find a way to force Putin to begin de-escalation of the conflict by withdrawing his forces from the region of the border. He is violating the Charter now. Some sanctions could be imposed now, to be reduced or withdrawn when he withdraws his troops from threatening Ukraine. The Democrats will want to preserve Biden’s freedom of action. This can be achieved through waiver language.
At this point, on the verge of war or peace, the Senators should find a way to strengthen the U.S. and its allies’ hand by expressing a consensus for the imposition of sanctions, beginning now.
7) It is perhaps worth noting that Putin moved his yacht from Hamburg, where it was being repaired, to Kaliningrad, Russia, where it will be safe from any seizure under sanctions adopted following a possible invasion. The move occurred before the repairs were completed.
8) Putin continues to flash what he may think is his trump card: the threat of nuclear war.
Sarah Starkey, “Putin reminds everyone that Ukraine joining NATO could lead to nuclear war, Bulletin of the Atomic Scientists, February 11, 2022.
In these circumstances, the world holds its breath waiting to see whether Putin will invade Ukraine, or do something else. Major cyber attacks on Ukraine’s largest banks and on defense ministry websites took place today. Showing weakness, Ukraine and allied officials said it was too early to know who was behind the attacks.
Who do they think it could have been? Lesotho? Or Tonga? They are going to have to act, on a battlefield where probability and not certainty should be the guide to their actions.
They should have counter-attacked. Maybe they did.
The Trenchant Observer