The Wesleyan Way – Perspectives March 2022

Putin, Ukraine and International Law

The most obvious recent parallel to Russia’s invasion of Ukraine is Iraq’s invasion and conquest of Kuwait in 1990. Though the immediate cause was a dispute over Iraq’s debt to Kuwait, there was also an assertion that Kuwait was historically a part of Iraq and should not be recognized as an independent country – similar to Putin’s suggestion that Ukraine is not a country, but a part of Russia. Also similar to today, the U.S. had no defense treaty with Kuwait and has none with Ukraine.

The parallel stops there! After Iraq’s rapid takeover of Kuwait and at the urging of the United States, the U.N. Security Council passed a series of resolutions authorizing use of force against Iraq. The U.S. took the lead in organizing a coalition of forces from 29 countries which ousted Iraq from Kuwait in 1991 –  but left Saddam Hussein in power in Iraq. Though Iraq was said to have large and well-equipped military forces (supported by oil revenues), they proved no match for coalition forces. 

Dealing with Russia today over Ukraine is clearly different. Russia not only has powerful military forces but nuclear forces rivaling those of the United States. And since Russia has a veto in the U.N. Security Council, there is no chance for a U.N.S.C. resolution authorizing use of force against Russia.

Lesson two: Eastern Europe – more to the point

The Soviet Union’s record in Eastern Europe in the Cold War is a more relevant and ominous precedent. Soviet troops put down anti-Communist rebellions brutally in East Berlin (1953), Hungary (1956, including the arrest and execution of Premier Imre Nagy) and Czechoslovakia (1968), and attempted to do so in Poland in the 1980s. The Brezhnev Doctrine, developed after the Czech rebellion, was a policy justifying Soviet military assistance to Communist regimes under threat. China, in fact, viewed this doctrine as a threat to Beijing; it was one of the factors leading to the Sino-Soviet split and the U.S.S.R. – China border clashes of 1969. That is one reason why China’s support for Russia in Ukraine today has been less than full-throated. I would be very surprised to see China recognize the two new “countries” Russia has anointed in Donetsk and Lugansk.

Brezhnev revisited: a Putin Doctrine

In similar fashion, Putin has asserted Russia’s right to intervene to re-establish Russian control in countries that were formerly part of the U.S.S.R., first in parts of Georgia (2008), then in parts of Ukraine (2014), and now apparently in all of Ukraine. Will he go further? The answer will certainly depend to a great extent on what happens in Ukraine. But just as certainly citizens of all 14 countries formerly inside the U.S.S.R. should feel nervous about Russian intentions, particularly the five countries (in addition to Ukraine and Georgia) which border directly on Russia, two of which (Estonia and Latvia) are NATO members. Further afield, of course, are the former members of the Cold War Moscow – directed Warsaw Pact, all of which have now joined NATO: Poland, the Czech Republic, Slovakia, Bulgaria, Romania, Hungary and Albania. For these countries, the answer to the debate in the West in the 1990s over whether NATO should continue to exist after dissolution of the U.S.S.R. would clearly be a resounding “yes!”

Putin as the enforcer of international law?

To my surprise, Putin’s February 24 statement justifying the attack on Ukraine invokes the self-defense clause in the United Nations Charter:

“In accordance with Article 51 (Chapter VII) of the U.N. Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.”

In other words, having just recognized Donetsk and Lugansk as countries, Russia is now, only a few days later, responding to their request for Russia to assist in collective self-defense, as permitted in the U.N. Charter. Putin also implies that Russia’s expansion in Georgia and Ukraine was justified because of the United States’ “disregard for international law,” including “promises not to expand NATO eastwards even by an inch.” Putin further notes the “genocide” against millions of people living in Donetsk and Lugansk, suggesting that it is Ukraine which is violating international law.

The creation of new states

Putin’s claim of collective self-defense under the U.N. Charter is clearly specious. For a starter, although capacity for diplomatic relations is a mark of statehood, there is no precedent for a state to be created by recognition of a single state, in the face of opposition or at least non-recognition by all other states, including, as I have suggested, Russia’s best friend, China. On the other hand, Putin’s attempt to use international law to justify Russia’s invasion does suggest there is a moral content to international law that Russia and most countries respect – no one wants to be called an international outlaw. The concept of Pacta Sunt Servanda – treaties are to be carried out – has carried the day internationally. The question, however, is which country in fact is in compliance with international agreements, a task the International Court of Justice and other international courts, as well as the court of public opinion, try to grapple with. 

Putin, the International Criminal Court and the Geneva Conventions

More relevant to Putin’s endorsement of international law is the jurisdiction of the International Criminal Court, whose new chief prosecutor, the British jurist Karim A. A. Khan, took office just a few days ago. Prosecutor Khan has already issued a statement noting that “my Office may exercise its jurisdiction over and investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since 20 February 2014 onwards.” In similar fashion, the Human Rights Watch, an American NGO, has issued a statement concerning the relevance of international humanitarian law, particularly the four Geneva Conventions of 1949, to the Russian invasion of Ukraine. These actions suggest that Putin’s claim to be acting in accordance with international law is, to say the least, not well-grounded.

Russia today and the Cuban Missile Crisis: the final lesson?

In 1962, the United States viewed Soviet missiles in Cuba as a direct threat to U.S. security. After several tense days and the threat by the U.S. to use nuclear weapons against the U.S.S.R. should missiles be launched, the crisis was resolved, facilitated when the U.S. promised to remove its missiles stationed near Russia’s borders, in Turkey. Putin now has expressed grave concern over the stationing of NATO military forces, including missiles, near Russian borders and has also threatened to use Russian nuclear forces. Can we distinguish the two situations? Can we say that the action of the U.S.S.R. in 1962 was part of its explicit and aggressive world-wide challenge to the United States, whereas NATO is clearly a defensive alliance not aimed at aggression against Russia? Clearly Putin would not buy this argument. But perhaps the peaceful resolution of the Cuban missile crisis does point to a way out of the current crisis – that is, agreements on force structures on all sides that meet the security needs of both Russia and its neighboring countries – and the rest of the world too. 

Professor Holbrook

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