Ukraine War, May 11, 2022 (I): Spinning leaked revelations about intelligence sharing, U.S. officials evidence continued confusion about international law; Azovstal steelworks fighters plead for evacuation of wounded; France and Germany push back on American war aims; U.S. should limit war aims to requirements of U.N. Charter and international law

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) Jennifer Hassan, “Mariupol fighters — faces bruised, limbs missing — plead for rescue,” Washington Post, May 11, 2022 (9:12 a.m. EDT);

2) Tom Stevenson”America and Its Allies Want to Bleed Russia. They Really Shouldn’t,” New York Times, May 11, 2022 (1:00 a.m. ET);

3) Thomas Wieder and Philippe Ricard, “France and Germany mark clear differences with the US over war in Ukraine; Emmanuel Macron and Olaf Scholz are looking to tone down American euphoria on the Ukrainian issue,” Le Monde in English, May 10, 2022 (18h24, updated at 18h25);

4) Shane Harris and Dan Lamothe, “Intelligence-sharing with Ukraine designed to prevent wider war,” Washington Post, May 11, 2022 (6:18 p.m. EDT);

5) “Ukraine War, May 7, 2022 (I): Speaker of Russian Duma accuses U.S. of direct involvement in military operations against Russia; The meaning of “Belligerent” and being at war with Russia–Confusion between International Humanitarian Law and the Law of the U.N. Charter,” The Trenchant Observer, May 7, 2022.

Commentary

Harris and Lamothe repeat the fine distinctions U.S. officials are broadcasting to the press in an effort to dilute the disastrous impact of recent leaks to the New York times and others about the high degree of intelligence sharing with Ukraine that is taking place. They report, for example,

Not targeting Russian troops and locations but providing intelligence that Ukraine uses to help kill Russians may seem like a distinction without a difference. But legal experts said the definition of targeting provides meaningful legal and policy guidance that can help the United States demonstrate it is not a party to the conflict, even as it pours military equipment into Ukraine and turns on a fire hose of intelligence.

Still, the U.S. efforts at spinning the revelations about intelligence sharing are highly revealing of the kind of legal analysis that goes into the making of critical decisions. Harris and Lamothe quote a former legal adviser at the U.S. Embassy in Baghdad as follows:

“If the U.S. were providing targeting information to a foreign party, and we’re closely involved in targeting decisions, we’re directing those forces and they’re acting as a proxy for us,” said Scott R. Anderson, a former State Department official who was the legal adviser for the U.S. Embassy in Baghdad. “That might be seen as getting close to the line of actually attacking Russia, at which point Russia could arguably respond reciprocally.”

Anderson’s statement is highly misleading and just plain wrong on several points.

First, even if the U.S. were providing targeting information to the Ukrainians, that would not ipso facto, in and by itself, demonstrate that the U.S. is directing the Ukrainian forces and that they are acting as a proxy for the U.S.

Russia might perceive it that way, and probably does anyway regardless of U.S. assertions that it is not providing targeting information to the Ukrainians.

Second, Anderson is then quoted as saying, “That might be seen as getting close to the line of actually attacking Russia, at which point Russia could arguably respond reciprocally.”

This statement is disastrously wrong, in two respects.

First, any action the U.S. may be taking to assist the Ukrainians in resisting the “armed attack” by Russia on Ukraine would be fully justified as action taken in exercise of the inherent right of collective self-defense as authorized by Article 51 of the United Nations Charter.

Second, under the U.N. Charter, it is nonsense to talk of the U.S. “actually attacking Russia” when it is acting in collective self-defense.

To then say that “at (that) point Russia could arguably respond reciprocally” suggests that Russia might then have some legal right to use force against the U.S. in response to its providing targeting information to the Ukrainians.

This is utter nonsense, and dangerous nonsense which fails to accurately state the governing principles of international law. One can even imagine the Russians’ quoting Mr. Anderson’s statement as they make the specious argument he alludes to.

The law of the U.N. Charter is quite clear. Russia has conducted an “armed attack” against Ukraine in violation of the prohibition of the threat or use of force contained in Article 2 paragraph 4 of the U.N. Charter, and both Ukraine and the U.S. would be justified in attacking Russian targets inside Russia if necessary and proportionate in order to bring that attack to a halt. Specifically, the U.S. would be justified in supplying warplanes to Ukraine to carry out such attacks.

Even if the U.S. were directing such attacks in exercise of the right of collective self-defense, these attacks would give Russia no right to act in response. Russia is committing aggression, and it acquires no right to act against a third country coming to the assistance of Ukraine in exercise of the right of collective self-defense.

These issues are not difficult, but they must be thought through carefully.

Harris and LaMothe would be well-advised to seek out opinions on questions of international law from international law authorities in other countries with relevant expertise relating to the use of force and self-defense. They should also be fully aware that international lawyers in the U.S. government often state positions on the use of force and self-defense that are not shared outside of the U.S., Israel, and a small number of countries.

These fine distinctions on whether the U.S. is providing Ukraine with targeting information have no significance in international law, and in any event probably carry little weight with the Russians who have no reason to believe such distinctions are being made in practice.

With respect to the transfer of aircraft, which is permissible under international law, the question is simply whether the Russians would escalate in response to such a move.

Such a transfer of aircraft would give them no right under international law to do so.

In managing Russian perceptions, it would certainly be helpful if U.S. officials could correctly articulate what is required and not required under the United Nations Charter and international law.

James Rowles*

*Doctor of Juridical Science in International Law, Harvard University.

The author is a former Lecturer on Law at Harvard Law School, and a former professor of international law at several American universities. He has published articles dealing with the use of force and self-defense under international law in a number of journals, including the American Journal of International Law.

***

See also,

Only force can stop Putin

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

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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