State Department Legal Adviser

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”…

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Ukraine War, April 19, 2022: Planes and parts have been transferred to Ukraine; NATO on sidelines, as analysts express premature sense of victory; No viable strategy for ending war



Ukraine War, April 14, 2022 (I): U.S. diplomacy fails to generate support in developing world to condemn and defeat Russia in Ukraine war


Ukraine War, April 13, 2022 (I): U.S. still hung up on “offensive” v. “defensive” weapons distinction; U.S. won’t provide Ukraine with intelligence or weapons that would enable it to strike targets in Crimea or Russia, for fear of provoking Russia



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


Ukraine War, February 25, 2022: “We are all Ukrainians now”; U.N. Security Council resolution and vote (with links to video and text of resolution)


Ukraine War, February 23, 2022: History–It all matters; blame enough to go around; cyber and collective self-defense of Ukraine against Russian aggression; conditions for a cease-fire; the long war with Russia (cold and maybe hot) that lies ahead: the failure of U.S. and NATO strategy; avoiding Armageddon


Ukraine Crisis, February 21, 2022 (Part II): Weighing options–Biden’s Munich moment

Joe Biden is facing “a Munich moment”. Will he impose tough sanctions on Putin for crowning his ongoing invasion of the Eastern Ukraine with the recognition of the puppet regimes he installed in 2014 and has maintained in power since, as independent countries, who will now invite Russian troops in to “protect” the population?
It is clear from the reports above that Biden is temporizing, drawing fine intellectual distinctions just like his mentor, Barack Obama, who helped create the present Ukraine crisis by not reacting strongly to Putin’s invasions of the Crimea and the Eastern Ukraine in 2014.
In 2014 Obama objected to the characterization of the Russian invasion of the Donbas as an “invasion”, preferring to term it an “incursion”. An “incursion did not require as strong a response with sanctions as an “invasion”, as Biden eerily communicated to Putin in a press conference some weeks ago.
Biden has made two colossal strategic misjudgments, and appears to be making a third at this very minute.
The first was the irrevocable decision to withdraw all American troops from Afghanistan. Once that decision was made, all that followed was a future foretold.
The second strategic blunder was to tell the world publicly, including Putin, that he was taking force off the table as a possible response to potential Russian aggression against Ukraine.
By that decision, Biden shaped the battlefield in ways which were sharply detrimental to Ukraine, and to the U.S. and its allies.
Now, having set the stage with the first two colossal blunders, Biden is making his third, by not applying the threatened severe sanctions against Putin for merely having engaged in an “incursion” in the Donbas.
The initial sanctions announced today, to ban business with entities in the “separatist” republics and to sanction personally individuals involved in the decision is a bad joke, and repeats–almost in cut and paste fashion–the bad joke of Obama’s sanctions against Russia for invading the Crimea in 2014.
In 2014, it was a bad joke which emboldened Putin. In 2022, it is a bad joke which will not deter Putin from a larger war, and which very likely will increase his contempt for Biden–unless it is followed within a day or two by the heaviest of sanctions.
Biden’s third strategic blunder is underway, but it’s not too late for him to do some fresh thinking and adopt the heaviest possible sanctions.
Biden needs to lead the anti-Russian coalition, not merely sink to its lowest common denominator.

Putin will not stop until he hits a brick wall. Biden must either bring that brick wall into play, or choose the path of appeasement, as Western leaders did at Munich.
He faces what is likely to be greatest Munich moment in his presidency.


Ukraine Crisis, February 21, 2022: Putin recognizes puppet “separatist” governments in Donetsk and Luhansk provinces; to deter a full invasion, U.S. and allies must impose heaviest sanctions now

By recognizing the”separatist” republics of Donetsk and Luhansk, Vladimir Putin has destroyed the last off-ramp from war, the last possibility for any kind of diplomacy and negotiations. The Minsk agreements are dead.
Putin’s action is characteristic of his pattern of probing, measuring the Western response, and then if the latter is weak pushing on to achieve a larger objective.
The key points to bear in mind about the recognition of the “People’s Republics” of Donetsk and Luhansk is that they were installed through the illegal use of force by Russia in 2014, that Russia has troops and equipment in the Donbas now as a result of its ongoing invasion, and that recognition of these puppet regimes is equivalent to the Russian recognition of the Crimea as part of Russia in March, 2014.
The ongoing invasion is a continuing violation of the U.N. Charter prohibition (Article 2 paragraph 4) against “the threat or use of force against the territorial integrity or political independence of any state”.
Immediate action required to try to deter a full invasion of Ukraine
The U.S. and its allies must impose their heaviest sanctions on Russia, now. The argument that they should be held in reserve in order to deter a further invasion by Putin is fallacious. As president Volodymyr Zelensky argued at the Munich Security Conferene, if the U.S. is almost 100% sure Russia is going to invade, what are they waiting for? The sanctions cannot be useful as a deterrent in the future if they are not imposed now when deterrence fails.
There is no guarantee that even, if imposed, they will alter Putin’s behavior. Nonetheless, history will judge the U.S. and its allies harshly if they don’t even try.
If they don’t impose the threatened sanctions, they will have zero credibility the next time they try to deter Putin, e.g. from seizing the land corridor that connects Kaliningrad to mainland Russia.


Ukraine Crisis, February 20, 2022: Deterrence has failed. Only China may be able to stop Putin’s invasion of Ukraine; now is no time to make concessions to an aggressor, in the Minsk negotiations or anywhere else

Negotiations within the Minsk process are not likely to make progress so long as Putin remains totally intransigent. His mobilization of an invading force of 190,000 troops suggests that that could be a long time.

The great risk in any meeting between Biden and Putin, or in negotiations to avoid an invasion, is that the U.S. and NATO, and/or Macron and Olaf Scholz, could pressure Zelensky to make concessions in the Minsk negotiations which in the end will amount to a surrender, or that a secret deal could be made behind his back that effectively blocks Ukraine from ever becoming a NATO member.

Such concessions would amount to rewarding Putin for his aggression.

As the Munich Pact in 1938 demonstrated, rewarding aggression through a policy of appeasement may bring “peace in our time”, but that time is likely to be short.

Following the Munich Pact on September 30/October 1, 1938, Hitler invaded “rump” Czechoslovakia in March, 1939, and Poland on September 1, 1939. Indeed, Hitler’s threats against Poland and Germany’s false-flag and propaganda operations in late August 1939, accompanied by frenetic diplomatic activity, greatly resemble Russia’s threats and false-flag operations against Ukraine today.

Final thoughts

As Radek Sikorski, a former foreign minister of Poland, said on Fareed Zakaria’s GPS program this morning, “Putin doesn’t want security guarantees. He wants Ukraine.”

Another quote from Sunday’s TV programs is worth bearing in mind. Retired. Lt. Gen. Keith Kellogg, former Vice-president Mike Pence’s National Security Adviser, reminded his audience on Fox News, “Putin doesn’t bluff.”


Ukraine Crisis, February 15, 2022 (II): Scholz is tough in Moscow; Putin hints at negotiation and withdrawals, but it could be a deception; Russian military moves to block any NATO intervention; Biden gives strong speech; Security Council meeting on February 17

Draft – Developing There were many important developments in the Ukraine Crisis today, and some revealing ones in the last few days, including the following:…


WARNING TO RUSSIAN SOLDIERS ENTERING UKRAINE: Russian soldiers who commit war crimes or crimes against humanity in Ukraine may be subject to trial before the International Criminal Court, and in countries exercising universal jurisdiction; they may never in their lifetimes be able to travel to European and other countries that have ratified the Rome Statute of the ICC, or which exercise universal jurisdiction over such crimes

Russian soldiers who take part in an invasion and commit war crimes, crimes against humanity, or other crimes within the Court’s jurisdiction, within Ukraine, could be subject to trial before the ICC, and in any event before the courts of any countries which prosecute such crimes on the basis of universal jurisdiction.

As a result, Russian soldiers who commit such crimes in Ukraine may never be able to travel to European or other countries which have ratified the Rome Statute, or which exercise universal jurisdiction, without running the risk of being arrested and tried for such enumerated crimes as they may have committed in Ukraine.

This would be be true for the rest of their lives.


Ukraine Crisis, February 10, 2022: Putin compares Ukraine’s role in Minsk II negotiations to that of rape victim; Lavrov treats British foreign secretary Liz Truss with disdain

On some days there is no single striking development in the Ukraine Crisis, but rather just different stories that illuminate this or that aspect of…


Ukraine Crisis, February 8, 2022: Urgent need for strongest possible deterrent steps; the Minsk II off-ramp for Putin

The current threats of economic sanctions against Russia if it invades Ukraine do not appear sufficient to deter Putin.

Putin’s disdainful remarks about Ukrainian President Volodymyr Zelensky yesterday in Moscow, following his five-hour meeting with French President Emmanuel Macron, suggest a hardened attitude and a dug-in position.

Deterrence of a Russian invasion should not be considered merely as a desirable objective, but rather as an absolute necessity for the security of Europe, Taiwan, and other countries.

Moreover, the survival of the post-World War II U.N. Charter-based system for the maintenance if international oeace and security, and international relations based on international law, are at stake.

The alternative, in a nuclear age, is the “right-makes-right” system that led to two world wars in the twentieth century.

Maximum Assured Deterrence

To make sure the law-abiding nations of the world avoid the fate they suffered after 1938, they must adopt deterrent measures that provide “Maximum Assured Deterrence”, that is, not just deterrence that seems “politically feasible” but which may or may not work.In an age when Mutual Assured Destruction (what we can call MAD I) may deter a nuclear first -strike, but may not deter aggression with conventional weapons, “Maximum Assured Deterrence” (which we can call MAD II) may be required to deter aggression and invasions by conventional forces.

What steps can be taken, even now, to provide “Maximum Assured Deterrence” against a Russian invasion of Ukraine?

The preceding analysis strongly suggests that an optimal strategy for dealing with Putin and Russia, starting today, would include the following components:

1) Adoption of the Maximum Assured Deterrence steps outlined above; and

2) Development of fully-developed and coordinated negotiating positions on Minsk II implementation in order to help construct an off-ramp which Putin might be persuaded to take.

Time is of the essence. These steps should be taken as soon as possible, on an urgent basis.


European and international security after the Ukraine Crisis

We may be in the gravest military crisis since the Cuban Missile Crisis in 1962… How will it all end? It could all end in…


Ukraine Crisis, February 5, 2022: News reports ignore developments on the ground, with a few notable exceptions; Russian invasion not “imminent”, but could occur at any moment–UPDATED NOW WITH LINKS TO LATEST DISPATCHES

The bottom line

While a Russian invasion of Ukraine may not be “imminent”, and while Putin according to U.S. sources may not have made a decision to invade, Russian military forces are continuing their build-up along the Russian and Belarusian borders with Ukraine, in apparent preparation for an invasion which U,S, officials warn “could take place at any moment”.

Update
February 5, 2022
9:34 p.m. EST

The information in the latest dispatch from the Washington Post is truly alarming.

The problem with a deterrence strategy that does not work is that it fails to deter the catastrophe it was designed to prevent.

The current deterrence strategy of the U.S. and NATO is a weak strategy, a “maybe it will work” strategy. It doesn’t look like it’s going to work.

There are no precedents that come to mind where the use of force was deterred in the face of such a massive military build-up by the threat of economic sanctions.

What can be done?

The answer is far from clear, particularly when the wheels of war have been engaged to such an extent on the Russian side, and the machinery of decision-making among the coalition that opposes Putin is so cumbersome.

It is now evident that the U.S. and NATO countries made a grave error when they announced that the use of force to counter Russian aggression against Ukraine was “off the table”. This is an error which has made Putin’s calculations simple compared to what they would be if there were uncertainty about the potential response by NATO and other countries to a potential Russian invasion.

Putin is a megalomaniac, who wants to remake the world through the threat and use of military power.

He is probably convinced that he can beat Biden in a nuclear showdown. That, indeed, may be the source of his supreme boldness and self-confidence.

We may be in the gravest military crisis since the allies faced Adolf Hitler’s armies during World War II.

How will it all end? It could all end in a flash, and if it does it will be the last flash you will ever see.

The U.S., NATO, and the rest of the world need to pull out all the stops to ensure that we never see that flash.


Cyber attacks on European oil terminals: A taste of Putin’s next hybrid war?

If we learned anything from Vladimir Putin’s invasion of the Crimea and the Eastern Ukraine in 2014, it is that he is a tricky old KBG spymaster, who places a premium on feints and deceit–and deniability.
Deceit and distraction, and delight at fooling the West,, were at the heart of Putin’s strategy in 2014, and they may be now.
Another key dimension of Putin’s strategy and tactics is desensitization. By playing with the West in 2014, , e.g., “Are the white trucks in the “humanitarian aid” convoy carrying military supplies or food and water?”, or “Are they going to cross the Ukrainian border without inspection or authorization?”, for example, Putin desensitized his opponents to his norm violations.

Well, they crossed the border. Later, the realization that regular Russian forces crossed the border doesn’t seem like such a big deal. His earlier desensitization tactics seem to drain the emption from the reactions to later grave violations of international law.

He has played with the West to such an extent in the present crisis, threatening a full-scale invasion of Ukraine, that this desensitization tactic may lead to a milder reaction if e.g., he only seizes a strip of land linking the Donbas to the Crimea.
Another key dimension of Putin’s strategy and tactics is desensitization. By playing with the West, e.g., “Are the white trucks in the “humanitarian aid” convoy carrying military supplies or food and water?”, or “Are they going to cross the Ukrainian border without inspection or authorization?”, for example, Putin desensitized his opponents to his norm violations.

Well, they crossed the border. Later, the realization that regular Russian forces crossed the border doesn’t seem like such a big deal. His earlier desensitization tactics seem to drain the emption from the reactions to later grave violations of international law.

He has played with the West to such an extent in the present crisis, threatening a full-scale invasion of Ukraine, that this desensitization tactic may lead to a milder reaction if e.g., he only seizes a strip of land linking the Donbas to the Crimea.
Recent cyber attacks on oil shipping terminals and facilities in Northwest Europe could well foreshadow a move in the kind of hybrid warfare Putin could use in the present confrontation between Russia, on the one hand, and NATO, Ukraine, and other democracies, on the other.
An op-ed in the New York Times, by an expert in Vienna, points to the possibility that Putin may have something much bigger in mind than an attack on Ukraine with conventional forces.
We may soon be looking at a conflict bween Russia and NATO which involves a significant cyber component for the first time.

If this occurs, a key question will be how nimble the U.S. and its allies will be in responding to attacks of probable but less than certain origin.


Ukraine Crisis, February 2, 2022: U.S. and NATO Replies to Putins demands (with links to leaked documents)

Developing Because so much is being written about the Ukraine Crisis, we are providing links to the most important news dispatches and analyses, in particular…