1) Andrew E. Kramer, “Russian Troop Movements and Talk of Intervention Cause Jitters in Ukraine; Russia has amassed more troops on the Ukrainian border than at any time since 2014. Western governments are asking: Why now?” New York Times, April 9, 2021 (3:59 p.m. ET).
2) “Russia Moves Ground Troops, Ballistic Missile Systems Near Ukraine Border – British Analysts,” the Moscow Times, April 9, 2021.
3) Ann M. Simmons, “Russia Warns of Full-Scale War in Eastern Ukraine, Blames Kyiv; The buildup of Russian troops on the border and escalating rhetoric threaten to derail efforts to reach a peaceful settlement,” Wall Street Journal, April 9, 2021 (12:33 pm ET).
In the United States, international crises pop up out of nowhere, it seems. Suddenly Russia is massing troops on Ukraine’s border and talking about war, threatening to militarily intervene in the eastern Ukraine, “to protect its citizens”.
This threat, and the international legal claim it asserts, are ludicrous.
First, why the surprise? The answer is that U.S. news media, even the New York Times and the Washington Post, have largely stopped covering international affairs on a day-to-day basis. In the old days, officials in the State Department and other agencies used to rely on these newspapers to get a sense of what was going on in the world. Seasoned reporters stationed abroad frequently provided news of what was going on, and a broad view of what was going on, much more effectively than did the daily cable traffic officials could read at their jobs.
This is no longer the case. While papers such as the New York Times may still have a few experienced reporters stationed in key foreign capitals, they do not have the seasoned editors who will print all of the stories, or the stories they might have been tasked to write if such seasoned editors still existed abd supervised their work.
My favorite example illustrating these points is the case when President Donald Trump made some incredibly stupid comments, in January 2019, about the Russians rightfully having been in Afghanistan because Muslim extremists had been attacking Russia.
These assertions were extraordinarily wrong. The Russians invaded Afghanistan in December 1979. Attacks by the mujahaddin were within Afghanistan–not against Russia–and gain momentum until years later, with the active support and instigation of the United States. In 1980, the United States and other countries imposed economic sanctions on the Soviet Union for their illegal use of force against Afghanistan, and boycotted the 1980 Soviet Olympics.
The editors at the New York Times seemed oblivious to these facts. What they did was publish a report from Afghanistan quoting Afghan officials who disagreed with Trump’s statements. It was classical “he said, he said” journalism. At the New York Times. Idiot editors.
So, Russia is threatening the Ukraine, and we have had no day-to-day reporting that would provide context or help us understand the history or the context of what is really going on. To follow these events myself, I have had to read reports in German, French, and Spanish newspapers.
Consequently, it is a late-breaking news story that the U.S. may send warships to the Black Sea to help deter Vladimir Putin from further invading the Donbas, as the eastern Ukraine region is referred to.
News stories fail to point out the ludicrous nature of Russian arguments that it might intervene militarily in the Donbas to protect its citizens, or in any event to halt a massacre such as the Serbian massacre of Bosnian men and boys at Srebrenice in July 1995.
However ludicrous its legal arguments, Russia may well intervene militarily in Ukraine. Its military forces are staging to do so. Alexander Navalny is dying in prison, after Putin’s apparent attempt to assassinate him with a chemical failed, and Navalny returned to Russia.
The fact that Navalny was sent to prison for a parole violation, when he was in Germany recovering after the assassination attempt, is somehow lost in the superficial reporting generally published in the U.S. These kinds on details get lost when you don’t have continuity in reporting.
Military action against Ukraine would distract attention from Navalny. And from any further demonstrations. Another reason Putin might to decide to invade the Donbas would be just to show Joe Biden what he can do, because he can. “You call me a ‘killer’? I’ll show you what I can do!” Putin could be thinking along these-lines.
Russia is advancing two possible justifications for potential military intervention in the Donbas, now.
The “Intervention to Protect Nationals” Argument
The first is an asserted right under international law to militarily intervene to protect citizens or nationals. The ludicrous nature of this assertion results from the fact that Russia for many months has been issuing Russian passports to Russian-speaking Ukrainians in the provinces of Donetsk and Luhansk in the eastern Ukraine, in the “Donbas”.
Dmitry Kozak, deputy chief of staff of Russia’s Presidential Executive Office, warned on Thursday that Moscow would be forced to defend its citizens living in eastern Ukraine in the event of all-out war, and said this would be “the beginning of the end for Ukraine.”
–Anne M. Simmons, Wall Street Journal, above.
So the argument boils down to the assertion that a state may grant citizenship to the citizens of another state (here, the Ukraine), and then invade that state on the pretext that it is defending its own citizens (to which it hs just issued passports).
Moreover, even the asserted international law right to intervene to protect the intervening state’s real citizens is not recognized under international law.
To be sure the U.S. has occasionally used the “intervention to orotect nationals” argument, as in the Domenican Republic in 1965 and Grenada in 1983. Yet even supporters of this asserted right have argued that the intervention must be strictly limited to the objective of removing the threatened nationals, and within a very short period of time. In any event, the argument has never been accepted by more than a handful of nations. It is basically an argument that in extreme cases a nation may intervene to remove its nationals under an imminent threat of harm.
The “Humanitarian Intervention” Argument
The second legal argument, hinted at in references to Srebrenice, is an asserted right under international law of “humanitarian intervention”. While the U.S. did not present an international law justification for its military intervention against Serbia to halt ethnic cleansing underway in Kosovo, the implicit justification, the only potentially available justification, would have been one of “humanitarian intervention”.
While there may be cases where a carefully circumscribed “right of humanitarian intervention” might be asserted and would make good sense–the case of Syria comes to mind, the fact is that the U.S. did not assert such a right in Kosovo, and claims of such a right have been firmly rejected by the overwheming majority of other states, at least since the Biafran Civil War in 1971.
Fallacious legal justifications, and the illegal use of force against Ukraine
In view of the above, it is absolutely clear that if Russia intervenes further militarily in the Ukraine, its intervention will constitute a new and additional violation of Article 2 paragraph 4 of the United Nations Charter, which prohibits the threat or use of force against the territorial integrity or political independence of any state.
Consequences: End Nordstream II, expel from SWIFT payments system, and impose much tougher Sectoral Sanctions
Such a violation of international law will call for the imposition of even stronger economic sanctions against Russia by the U.S., the EU and the U.K., and their allies.
Such sanctions should include, at a minimum, a definitive end to the Nordstream II Gas Pupeline Project, and the expulsion of Russia from the SWIFT international payments system. In addition, stronger sectoral sanctions should be imposed.
Targeted personal sanctions against individuals will have no effect, and should not even be considered to be serious sanctions.
Mr. Rowles holds a Doctor of Juridical Science in International Law (SJD) from Harvard University, and is a former Lecturer on Law at Harvard Law School.