Ukraine War, March 12, 2022: Zelensky and Ukraine have a clear goal–Victory! And the U.S.? The West? Do they even understand the situation, or have a strategy? Correcting faulty thinking: Contemporary international law and the use of force

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“It is impossible to say how many days we still have [ahead of us] to free Ukrainian land. But we can say we will do it,” he said. “We are already moving towards our goal, our victory.”
–Volodymyr Zelensky

Dispatches

See,

1) Charles Moore, “The free West is in danger of forgetting why it has always triumphed over dictatorships; China and Russia can offer no viable alternative to the modern world we have created. We should take confidence from that fact, The Telegraph, March 11, 2022 (9:30pm);

For many years now, and even after the atrocities of the past fortnight, I have heard too many conversations in which someone says things like, “At least Putin defends his own people” or “Putin is a strong Christian” or (most commonly) “It’s our fault for humiliating Russia”.

Such people tend to like Donald Trump’s tone too much. Some of them are in that constituency – prominent in the 1930s – which takes a “What’s it all to do with us anyway?” line, a question that can easily be answered by looking at the size of your next gas bill. At the battier end, they believe in conspiracies.

Surely both the Left and Right who feel so disaffected from the West should seriously consider another, wider possibility. This is that the West won the Cold War because it deserved to, and that, in doing so, it was vindicating the civilisation it had been developing since at least the 18th century.
…continuously tested and often makes bad mistakes, it continues to win. Even the Chinese assault on its model, though extremely formidable, is not something that the non-Chinese world wants. As for Putin’s Russia, it offers no viable alternative at all – only the cry of rage that comes from repeated failure.

If this analysis is broadly right, it is the duty of conservative-minded Western citizens not to indulge Putin’s nihilism, or even Trump’s rancorous partisanship, but to try to re-energise the self-belief which established our dominance and the institutions which sustained it. The extent of our internal divisions, so great in recent years, looks ridiculous in the light of the external threat.

The Ukrainians seem to unite round – and be ready to die for – the things we say we believe in. That fact should shame and inspire.

2) Jeremy Hunt, “We’ve forgotten that peace comes from strength; The invasion of Ukraine happened in part because we overlooked the most important lesson of the Cold War: the power of deterrence,” The Telegraph, March 11, 2022 (10:16pm).

The purpose of deterrence is to arm yourself effectively, and with enough strategic ambiguity that hostile powers think twice before such catastrophic decisions. Our overt weakness in Afghanistan, followed by the US and UK governments announcing they would not intervene in the event of a Russian invasion of Ukraine, did the opposite. Instead of peace through strength we caused war through weakness.

3) Tess McClure, Peter Beaumont and Luke Harding, “Kyiv ‘ready to fight’ as Russian forces close in Ukraine capital; Ukrainian president warns of ‘humanitarian catastrophe’ as hundreds of thousands of civilians remain under fire across country,” The Guardian, March 12, 2022

Volodymyr Zelenskiy has called on Ukrainians to continue fighting, but said living conditions in the Kyiv region had deteriorated into a “humanitarian catastrophe” with disrupted gas, heating and water. The Ukrainian president said his country had reached a “strategic turning point” in the conflict. “It is impossible to say how many days we still have [ahead of us] to free Ukrainian land. But we can say we will do it,” he said. “We are already moving towards our goal, our victory.

4) David M Herszenhorn and Jacobo Barigazzi, “At summit, leaders see EU redrawn by Russia’s war; Presidents and prime ministers struggle to shake old habits in confronting wartime policy decisions,” Politico, March 11, 2022 (9:24 pm);

5) Sylvie Kauffmann, “Comment la guerre en Ukraine a ébranlé l’ordre mondial,”
Le Monde, le 11 mars 2022 à 17h00 (mis à jour à 19h48).

This article, by one of Europe’s leading foreign affairs journalists, provides a magisterial overview of how the Russian invasion of Ukraine will affect international relations, in all principal domains. Kaufmann’s long experience at or near the head of the foreign affairs department at Le Monde, and at Le Monde itself, is reflected in her keen judgment and rich insights on many different issues. This is journalism at its very best. It is well worth using Google Translate to render the article into your own language. It is a must read.

Commentary

Zelensky and Ukraine have a clear goal: Victory!

One cannot say as much for the United States or the West.

Joe Biden’s sole goal appears to be to avoid even the slightest risk of being perceived by Vladimir Putin as engaged in military conflict with Russian military forces.

These forces have invaded Ukraine and are currently committing war crimes and crimes against humanity on a massive scale, laying siege to cities as in medieval times, and bombing and bombarding civilians with deadly intent. The Russian goal clearly seems to be to terrorize the population, and through the use of terror to force Zelensky and Ukraine to capitulate to Putin’s demands, in order to save tens of thousands of Ukrainian lives.

Even if Ukraine were to agree to Putin’s demands, any such agreements would be void under international law, and enforceable only through the future use of the Russian army.

Putin has not only repudiated the U.N. Charter and the international law governing the use of force, but also attempted to overturn the entire edifice of humanitarian law or the law of war, which goes back at least to the American civil war and the Lieber Code promulgated by Abraham Lincoln in 1863.

Putin’s replacement for the U.N. Charter and international law, including humanitarian law:

Barbarism.  Absolute Barbarism.

As Jeremy Hunt points out, “Instead of peace through strength we caused war through weakness.”

Many mistakes led Putin to think he could invade Ukraine and come out the winner. Certainly, the Afghanistan withdrawal and the obvious ineptness of Joe Biden and his foreign policy team were major factors.

Among immediate causes were the declaration by Biden and NATO that they would not oppose a military invasion with the use of force, and the great fear of Putin that Biden has repeatedly manifested, as he repeats the Russian talking point, almost reflexively, “You fight me, One, Two, Three, World War Three”.

Biden’s personal veto of the transfer of Polish jets to Ukraine, out of fear of Putin’s reaction, and his knee-jerk rejection of a thoughtful proposal to establish a “limited no-fly zone” to enforce humanitarian corridors Russia had agreed to, are only two examples from this last week of Biden’s fear of Putin and of his passivity.

As Sylvie Kauffmann points out in her magnificent and magisterial article, Biden has ceded “escalation dominance” to Putin, which is of great importance in the strategy of nuclear escalation. Biden has told Putin what he will not do. Putin, in contrast, has retained the option of moving up the escalatory ladder.

One of the next steps could be the use of chemical weapons, as al-Assad did in Ghouta in August 2013 in Syria, crossing Obama’s illusory “red line”. Recall what happened then, for surely Putin does: Obama, instead of taking military action, called such action off at the last moment, and then punted the decision on a military response to Congress. This gave the Russians an opportunity to bail al-Assad out with an agreement under the Chemical Weapons Convention to remove chemical weapons from Syria. Obama jumped at the deal.

Another escalatory step by Russia would be the use of biological weapons. They have been preparing the propaganda terrain for such action by accusing Ukraine and the U.S. of developing biological weapons together. They even convoked an emergency meeting of the U.N. Security Council on Friday, March 11, to voice their specious and unsupported claims, for the benefit of their domestic TV audience.

The next step after biological weapons would be the use of a tactical nuclear weapon.

Donald Trump’s cancellation of the Intermediate Nuclear Forces (INF) Treaty, in 2018, has left Russia in a dominant position in this arena. This advantage is even more marked due to Putin’s success in implanting in Biden’s subconscious the Russian refrain of, “You fight me, One, Two,Three, World War III”.

What is to be done?

It is manifest that Biden alone, with his current foreign policy team, does not have the nerves of steel required to successfully handle a confrontation with Vladimir Putin.

Biden needs to reshuffle his team and bring in outside experts.

It is not at all clear, however, that Congress can force Biden to reshuffle his foreign policy team and bring in seasoned former officials and experts to advise him in how to proceed.

Yet only if Democrats are willing to break with Biden on foreign policy, e.g., by supporting resolutions such as the draft Senate resolution calling on Biden to approve the transfer of the Polish jets to Ukraine (which received 40 Republican votes), will the U.S. and the West have any realistic chance of upping their game.

Having a new and strong foreign policy team in place, comprised of present and former senior officials (e.g., Secretaries of Defense, top military officials, et. al.) could be of critical importance if and when Putin moves up the escalatory ladder, or continues committing crimes against humanity against cities and civilian populations.

The Use of Force: The language and content of contemporary international law

One final point is of great importance: Anthony Blinken, Biden and Biden’s foreign policy team need to learn how to talk about international law and the use of force. Outside foreign policy experts and TV commentators need to do so as well.

For this international lawyer, it has been shocking to hear high and former high officials speak about international law or options that should be shaped by international law in ways which are achronistic and which reveal a peofound ignorance of contemporary international law.

It is shocking to hear such officials say things like if an American engages with a Russian soldier in Ukraine that would be like a declaration of war against Russia.

Such assertions are absolutely incorrect from a legal point of view, i.e., in terms of contemporary international law.

Article 2 paragraph 4 of the United Nations Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state”. Russia has violated and is violating this prohition with its ongoing invasion of Ukraine.

Both Ukraine and a state coming to its assistance are entitled to use force in individual or collective self-defense in the case of an “armed attack”, in accordance with Article 51 of the U.N. Charter. Here, Russia has clearly committed and is committing an armed attack against Ukraine.

Exercise of the inherent right of individual or collective self-defense is still subject to two requirements, beyond that of an “armed attack”.

First, the use of force must be necessary to repel and halt an ongoing attack. This is the requirement of necessity.

Second, the use of force must be proportional to the nature of the attack. This is the requirement of proportionality.

For example, if a mortar were fired across a border at a border post, an invasion of the country from which it was fired and military occupation of its capital would not be a proportional use of force.

Under international law, there is no such thing as a declaration of war. While a “declaration of war” might have some significance under the domestic law of a particular state, it has no effect whatsoever under modern international law.

Similarly, even a hypothetical encounter between an American military aircraft and a Russian military aircraft would not be an act of war triggering a general state of war between the U.S. and Russia, but rather a use of force in collective self-defense against a Russian aircraft participating in an armed attack against Ukraine.

Law in general is a precise means of communication and a highly disciplined way of thinking about things. This is also true of the international law governing the use of force.

If NATO or a Coalition of the Willing (as in the Gulf War to repel the Iraqi invasion of Kuwait in 1990) were to establish a “limited no-fly zone” to protect humanitarian corridors agreed to by Russia, or to prevent and halt the commission by Russia of crimes against humanity by bombing and laying siege to cities and civilian populations, such action would not be an act of war under international law and the U.N. Charter. Rather, it would constitute the lawful use of force in exercise of the right of collective self-defense against an ongoing Russian armed attack against Ukraine.

Ukraine and the West are opposing Putin and the Russians in defense of Ukraine, civilization, and the U.N. Charter and international law.

We should at least use the language and concepts of international law and the U.N. Charter in thinking about who is doing what and in shaping our options.

To be sure, any use of force to deter or stop Russia from committing crimes against humanity, or other horrors on the escalatory ladder, may anger Putin. However, we need to think clearly about such possibilities, and communicate to Putin and to other countries, even our allies, in the precise language of international law.

The Trenchant Observer

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