Ukraine War, April 28, 2022 (I): The risk of nuclear war is greater than people think; The challenge of ramping up war production to meet Ukraine’s needs; Fear among Western officials of conflict expanding beyond Ukraine; Being “at war” with Russia

Developing. We are publishing this article as it is being written. Please check back for updates.

To see a list of previous articles, enter “Ukraine” in the Search Box on the upper right, on The Trenchant Observer web site, and you will see a list in chronological order.

Dispatches

1) Alistair Heath, “World War Three is far more likely than anyone is prepared to admit; New weapons and our failure to understand our enemies are raising the chances of a horrific conflict,” The Telegraph, April 27, 2022 (9:30 pm);

2) Doug Cameron and Gordon Lubold, “U.S. Efforts to Arm Ukraine Shine Light on Limited Production Lines; Years after the U.S. stopped buying older weapons, like the Stinger missile, the Pentagon is struggling to replenish its stocks,” Wall Street Journal, April 28, 2022 (11:34 ET);

3) David E. Sanger and Steven Erlanger, “Fears Are Mounting That Ukraine War Will Spill Across Borders,” New York Times, April 27, 2022 (7:33 p.m. ET, Updated Apr. 28, 2022 11:34 am ET);

4) Peggy Noonan, “Putin Really May Break the Nuclear Taboo in Ukraine; It seems unthinkable, but American leaders’ failure to think about it heightens the risk it will happen,” Wall Street Journal, April 28, 2022 (6:26 pm ET).

Commentary

Cameron and Lubold report,

Defense-company executives say they are ready to increase production of most weapons, but some experts say the Pentagon has only just begun issuing new contracts that would be required to replace some of the weaponry sent overseas.

“Industry really can’t do a lot until they have their contracts in hand,” said Bill Greenwalt, a former Pentagon official who managed the military’s industrial policy…

Defense-company executives say they are ready to increase production of most weapons, but some experts say the Pentagon has only just begun issuing new contracts that would be required to replace some of the weaponry sent overseas.

Lockheed Martin Corp. said last week that while it was in talks with the Pentagon, it hasn’t increased production of any of the weapons being sought by Ukraine. Lockheed, the world’s largest defense company by sales, produces the Javelin in a joint venture with Raytheon.
..
The Defense Department will issue new contracts “as quickly as possible, consistent with existing laws and policies,” the Pentagon spokeswoman said in a statement.

Sanger and Erlanger, two of the New York Times’ most distinguished journalists, provide an excellent overview of the risk of NATO countries becoming directly involved in the military conflict in Ukraine. They observe,

Now, the fear in Washington and European capitals is that the conflict may soon escalate into a wider war — spreading to neighboring states, to cyberspace and to NATO countries suddenly facing a Russian cutoff of gas. Over the long term, such an expansion could evolve into a more direct conflict between Washington and Moscow reminiscent of the Cold War, as each seeks to sap the other’s power.

News flash for those officials in Washington and European capitals Sanger and Erlanger cite:

We are already way beyond a return to the Cold War. In fact, we are engaged in a hot war with Russia in the heart of Europe.

To date there has been no direct confrontation between Russian and NATO forces. But that may be coming. The logic of the war would seem to point to that eventuality.

Sanger and Erlanger quote Seth G. Jones to show how this could happen:

Seth G. Jones, who directs the European Security Program at the Center for Strategic and International Studies in Washington, said on Wednesday that “the risk of a widening war is serious right now.”

“Russian casualties are continuing to mount, and the U.S. is committed to shipping more powerful weapons that are causing those casualties,” Mr. Jones said. Sooner or later, he added, Russia’s military intelligence service might begin to target those weapons shipments inside NATO’s borders.

Confusion between the Law of the U.N. Charter and International Humanitarian Law, and the meaning of being a “Belligerent”

International Humanitarian Law, formerly known as the Law of War or the Laws of War, refers to the law contained in the 1949 Geneva Conventions and subsequent protocols and treaties regulating the actions permitted by armed forces during an armed conflict.

The international law of the United Nations Charter makes no distinction between being a “belligerent” or not. Under the Charter, the use of force across international frontiers in prohibited (Article 2 paragraph 4) except in exercise of the right of individual or collective self-defense (Article 51).

The Law of War developed over centuries, and in particular since the U.S. adoption in 1863 of the Liber Code regulating the conduct of Union soldiers during the Civil War.

Under International Humanitarian Law or the Law of War, the rights and obligations of the soldiers of a country that is a party to the conflict (a “belligerent”) are different from those of countries which are not parties to the war.

These distinctions were important before 1945 and more recently during the war in Afghanistan, but are not directly relevant to considering what actions are permissible for a country to take in exercise of the right of collective self-defense under the U.N. Charter.

Under the Charter, there is no such thing as “a state of war” and “a declaration of war” has no meaning. What determines the legality of a state’s actions is whether or not its use of force is against “the territorial integrity or political independence” of a target state, and whether the use of force in response to such action when it amounts to an “armed attack” is necessary and proportionate in order to repel the attack and bring it to a halt.

There is no legitimate reason to use force across an international frontier except in response to an “armed attack”.

Consequently, all the talk in public discussions about whether a given action by a NATO member country is an “act of war” is totally irrelevant under the law of the United Nations Charter.

The significant question is whether any such action is lawful as an act of collective self-defense.

These clarifications should inform discussions of the appropriateness of taking this or that action. A state does not become a “party” to a war when it is simply acting in exercise of the right of collective self- defense.

Admittedly, the two bodies of law can lead to confusion, as they are based on different premises yet continue to co-exist in the world today. The basic point is that International Humanitarian Law deals with the treatment of soldiers on the other side and with the protection of civilians.

Under the law of the U.N. Charter, on the other hand, at the level of interactions between states, there is no such thing as a “belligerent” in the sense of a state being a participant in a war. The only question is whether it is acting lawfully in exercise of the right of individual or collective self-defense.

In the context of the current war in Ukraine, this means that the transfer of Polish jets to Ukraine would at most be an act of collective self-defense, fully justified in response to Russia’s illegal invasion of the country. It would not make the state transferring the jets a party to a war with Russia, and would not entitle Russia to take any action against it in response. The analysis is no different if we are talking about the supply of tanks, airplanes, or other heavy weapons to Ukraine.

How Putin and Russia might perceive and react to such actions is a separate question. But at least the U.S. and NATO should be clear when they talk about such matters, and use language which reflects the modern state of international law as set forth above.

An act of collective self-defense against an invading state is not an “act of war” against that state, and does not mean that the state acting in collective self-defense is at war with the invading state.

These distinctions are important, even if they are not always understood.

The Trenchant Observer

***

See also,

Only force can stop Putin

“Ukraine War, April 5, 2022 (II): Force must be used to stop Putin,” The Trenchant Observer,

 

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