Ukraine War, March 7: 2022 (II): “Close our skies”: Binary thinking, the “no fly zone” non-debate, and the failure to think seriously about a range of options involving the use of force against Russian use of force in Ukraine; the possibility of using force to block the commission of crimes against humanity

Binary thinking and the “no-fly zone” non-debate

Ukrainians, including President Volodymyr Zelensky, have been calling for NATO to establish a “no-fly zone” over Ukraine.

What they really want is protection from aerial bombardment. As one Ukrainian pleaded on TV today, “Close our skies” He could have expanded his plea to “close our skies from death and destruction raing down on our cities and civilian populations”.

The lack of intellectual nimbleness and acuity in the Biden administration usually leads to the following type of parody of a rebuttal:

“If we try to enforce a no-fly zone over Ukraine, that means NATO fighters will be shooting down Russian aircraft, which means we’ll be engaged in a direct mikitary conflct with Russia…..Which means Woeld War III (end of discussion),”

If any student at the Air Force Academy or one  of our War Colleges were to offer that answer to a question on an exam, he or she would fail the course.

Why is the non-debate taking place in this form?

As we’ve pointed out in previous articles, neither Joe Biden nor his loyal No. 2 man, Anthony Blinken, is particularly sharp or mentally agile. Let us not forget:

Biden and Blinken gave us the Afghanistan withdrawal decision, perhaps the most disastrous foreign policy decision by a Western leader since Neville Chamberlain of Britain and Édouard Daladier of France sought to appease Adolf Hitler in the 1938 Munich Pact.

In that agreement, they agreed to the cession of Czechoslovakia’s German-speaking Sudetenland to Germany, as Hitler was threatening Czechoslovakia with military invasion. They were not particularly interested in what Czechoslovakia wanted.

Biden and Blinken have turned Biden’s fear of nuclear war into U.S. policy. They rule out a no-fly zone because it would lead to World War III. End of discussion.

With that kind of decision from the top, there has been virtually no discussion of how the U.S. and NATO  might use force to oppose Russia’s use of force in invading Ukraine.

The failure to think seriously about a range of options involving the use of force against the Russian use of force in Ukraine

We haven’t heard from the experts on the question the Air Force Academy students might have been asked on a test. What options short of establishing a no-fly zone over Ukraine might be adopted in response to the Ukrainians plea to “Close our skies from death and destruction raing down on our cities and civilian populations”?

Is there nothing that might be done?

What about shooting down missiles aimed at civilian populations. This would involve no direct engagement with Russian pilots or other military forces.

Might it be possible to disrupt the guidance systems of such missiles?

Could the U.S. working with Ukrainian experts use cyber warfare measures to disrupt the communications of forces launching such weapons?

The Observer is not a military expert. But certainly U.S. military experts could generate a number of such options.

Would measures such as those suggested anger Putin? Certainly.

Would they cause him to start a nuclear escalatory spiral by using a tactical nuclear weapon, or by attacking a NATO member state with conventional weapons?

This does not appear likely, though the Observer will defer to the experts on these issues.

The ultimate question here, as in implementing the option outlined below, is can the West overcome its fear of Putin?

On the positive side, he seems to be acting quite “rationally” given his crazy assumptions. He presented himself surrounded by young girls, in a room filled with flowers, when he wanted to present a softer image of himself as he was bombing civilian populations. He has suggested some flexibility in his demands for conditions to reach a ceasefire, in an apparent effort to dissuade the U.S. and the EU from adopting an oil and gas embargo. This looks like “rational” behavior.

Moreover, such “rational” behaviorbwould appear to diminish the risk of him being a madman and acting to blow up the world.

Let us not underestimate the effect of the U.N. General Assembly Resolution condemning his invasion, by a vote of 141-5 with 35 abstaining, or the impact of the case brought before the international Court of Justice under the terms of the Genocide Convention. These actions involve enormous diplomatic and reputational costs to Russia, and may even have some impact on the country’s relationship with China.

One option: Using force to block the commission of crimes against humanity

In terms of the use of force by NATO or individual countries in Ukraine, in exercise of the right of collective self-defense under Article 51 of the U.N. Charter, one option has particular appeal: the use of force to block or halt the commission of crimes against humanity in Ukraine.

Any such use of force would be absolutely justified under the U.N. Charter and international law.

Rockets or other military weapons might be used to block the bombardment of civilian populations from the air or by artillery.

Such action could and probably would result in Russian casualties.

It would, howvever, be purely defensive in nature. All the Russians would have to do to stop the blocking action would be to stop the attacks that constitute crimes against humanity.

Putin would undoubtedly threaten Biden with nuclear war. Could Biden take the pressure of looking down the barrel of a nuclear gun?

On his own, with his current foreign policy team, probably not.
This is the assumption on which Putin appears to have built his entire strategy for invading Ukraine.

With a reinforced bipartisan Nuclear Decisions Executive Committee, such as we have proposed, Putin could not be so sure. This would alter the risk calculus not only for Biden, but also for Putin.

This is, incidentally, the same calculation which Biden and Putin would have to make if Russia were to invade a NATO country. Here, in Ukraine, the circumstances would be as propitious for the West as they are ever likely to be in a confrontation with Putin and Russia.

Even Putin might hesitate to launch a war against NATO because it was taking very limited military action to prevent or halt the commission of crimes against humanity.

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.

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