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Source: Counterpunch
FEBRUARY 17, 2023
Russia, Ukraine, and International Law
A map of the buffer zone established by the Minsk Protocol follow-up memorandum. Image Source: Goran tek-en – CC BY-SA 4.0
Recent revelations from France, Germany, Israel, and Ukraine that the Minsk Accord(s) was a deception engineered by the US to buy time for Ukraine to organize a US-led, armed, and funded war against Russia, contradict American assertions regarding the conflict. Readers will recall that it was only after the failure of the Ukrainian government to implement the terms of the Minsk Accord(s) that the Russian military moved into Ukraine. In other words, the Russians waited for 2022 – 2014 = eight years before rising to the American challenge in Ukraine.
Representatives from each of these nations have now claimed that the US was being duplicitous, telling the world that it favored a negotiated settlement while doing everything in its power to assure that no settlement was reached. The former Israeli Prime Minister, Naftali Bennett, went so far as to charge that the US said that there were no terms that the Russians might offer that would be acceptable because the Americans wanted a war with Russia. Question: at what point does provocation turn into instigation?
Recall, the publicly stated position of the US since the war began has been that it has no say in the negotiations because they are between the sovereign state of Ukraine and Russia. Recall, the US has repeatedly asserted that Ukraine, being a sovereign nation, can negotiate any deal that it cares to with Russia. There are now reports of multiple instances where Ukraine had come to terms with the Russians but was subsequently told that there is no deal by the Americans. Is this evidence of Ukrainian sovereignty?
Recall, the public position of the Americans has been that the war was unprovoked, and therefore unavoidable. In fact, at least one party in the dispute— the Russians, disagrees with this characterization. Otherwise, why was a solution being negotiated at Minsk? Like the Americans, the Russians may or may not have been negotiating in good faith. The way to test Russian motives was to implement the Accord(s), which, depending on the timing, would have either precluded the Russian move into Ukraine or stopped it at the borders of Donbas.
With the President of Ukraine, Volodymir Zelensky, having now admitted that he never intended to implement the Minsk Accord(s), it is difficult to see how negotiations move forward. This was more likely than not the American purpose in organizing the Minsk deception. When the Russians concluded that there was no path to resolution with the Americans through negotiations, war was launched. To understand the problem, imagine if it had been the Russians who had negotiated in bad faith before launching hostilities toward Ukraine.
With the US now running the war in Ukraine, and all of the major players (except the US) having stated that the Minsk Accord(s) was a deception, the implication is that the Americans want for the Accord(s) to be perceived as a deception by the Russians. In fact, the Russians indicated that they understood the deception when they moved the Russian military into Ukraine last year. It is the American people who are being played here. The Biden administration is precluding future negotiations by proving the Americans to be untrustworthy negotiating partners.
The question of the legal status of the Russian military incursion into Ukraine keeps being raised under the implied premise that ‘the law’ will provide moral and political clarity regarding the war. In the closest claimed analog, the US war against Iraq launched in 2003, the US provided evidence known at the time to be fraudulent in order to convince the United Nations that ‘defensive’ war was justified. In other words, the UN gave its legal authority to the American slaughter in Iraq because it was defrauded into doing so by the Americans.
To then point to the legal authority given the Americans with respect to Iraq as legitimate illustrates why the senior leadership of the (George W.) Bush administration must be prosecuted for its illegal and murderous war against Iraq. When nations are allowed to deceive the UN into giving legal sanction to Wars of Aggression, legal cover is severed from political legitimacy. If an adjudicating body (court) is indifferent to being defrauded, then fraud will come to define its judgments. This is why I joined Ramsey Clark in 2004 to prosecute the (George W.) Bush administration for its crimes against Iraq.
In fact, the Americans who slaughtered one-million Iraqis and lit the wider Middle East on fire in 2003 still run the country. The ‘Neocons,’ neoconservatives who promote policies based on the imperialist logic that colonized peoples benefit from the superior knowledge and wisdom of their colonizers, migrated to the Democratic Party following the public relations disaster of the US war against Iraq. Joe Biden has been a Neocon since former US President Bill Clinton tied his War of Aggression (Kosovo) to his ‘business friendly’ neoliberal economic policies.
The fact that the current US President, Joe Biden, was a major participant in the Iraq-WMD deception, as well as a proponent of the US war against Iraq, places the current US political leadership at the heart of the American imperial project. The formula is: 1) create a pretext for taking military action, 2) use political leverage to coerce a coalition from ‘the international community,’ to 3) pursue economic advantage for American oligarchs and corporations using the ruse of ‘keeping the world safe for democracy.’
Question: how does the US retain credibility with its allies in Europe? Whatever the motives, the fact that all of the major players except the US have now publicly admitted that the US was perpetrating a fraud against the Russians should have divided the ‘coalition of the European Marshall Plan.’ The true recipient of American largesse has been Germany, which just had its critical energy infrastructure, the Nord Stream pipelines, bombed by the Americans. If this is an act between allies, they are of the ruling class. Biden bombed German pipelines, not Olaf Schulz.
In fact, the circumstances that now find the Russians in Ukraine raise broad and deep questions regarding what international law is, and why it matters. In its favor is the set of rules it provides by which states can avoid avoidable, and therefore unnecessary, conflicts. Against it is the existing distribution of political and economic power that has made ‘the law’ a tool of the powerful against their enemies. Here is former Reagan administration functionary Elliot Abrams explaining an American insider’s view of international law. Note the sense of imperial right.
The claim from American liberals has long been that the national Democrats lack the power to pass important and necessary policies in the public interest. In fact, after abandoning his alleged domestic agenda because pursuing it would have required effort, Joe Biden launched war of choice against nuclear-armed Russia. And he is in the process of opening a second front against China. Students of nuclear war and / or the opening of multiple fronts in military conflicts might question the wisdom of these moves. Mr. Biden could have pursued policies in the public interest, but he chose war instead. In economics, this is called ‘revealed preference.’
The way that the war in Ukraine is presented in the US constitutes implicit admission that the facts as claimed were chosen to craft domestic perceptions of the conflict. Open to contest are 1) that Ukraine is a sovereign nation following the US-sponsored coup there in 2014, 2) that the war began with the Russian SMO (Special Military Operation) in 2022 rather than with the Ukrainian Civil War that followed the coup, and 3) that the US is a good-faith negotiator rather than being cynically opportunistic regarding background Russian security concerns.
The missing pieces for Americans are the US-led coup in Ukraine in 2014, followed by the eight-year Civil War that pitted US backed Ukrainians against Russian-backed Ukrainians. Question: why did the US engineer the 2014 coup in Ukraine? Answer: to begin the process of regime change in Russia. From drunken buffoon and Clinton mascot, Boris Yeltsin, to Vladimir Putin, the Russian political leadership has been putting Russian security concerns forward as a political problem in need of resolution since 1991.
The American response? First the US-led coup in Ukraine, where the US allied with self-described Ukrainian fascists to commit political violence in order to secure the transfer of Ukrainian political power to American hands. Then, against IMF rules, the US secured a loan for the Ukrainians. IMF debt has long been used to force unpopular economic concessions from vulnerable populations. This is where the US is at in Ukraine at the moment. The Ukrainian economy is being reorganized along neoliberal lines.
Question: why is the US reorganizing the Ukrainian economy along the neoliberal lines favored by American industrialists, financiers, and oligarchs, if the problem is that the Russians invaded Ukraine? Furthermore, why would the Americans have bombed Germany (Nord Stream pipelines) if the problem is Russian aggression? And why did the US and NATO spend the period from the US-led coup in Ukraine in 2014 to February 2022 supporting the coup government while arming and training the Ukrainian military to launch a war against Russia?
Any fool with a map can see that the problem. The US defending Ukraine against Russia is roughly analogous to Russia ‘defending’ Canada from the US. Who would find it plausible that the Russian interest in launching a land war in North America was the wellbeing of the Canadians, rather than the destruction of the Americans? Then add back in that the Americans spent the last decade calculating how to draw the Russians into a land war on Russia’s border. Should this read as unduly conspiratorial, how are those Minsk Accord(s) coming along?
Furthermore, what was the US motive for the coup in Ukraine in 2014, and then support for the US-installed Ukrainian government? The Russians demurred when the people of Donbas petitioned to join Russia in 2014. Their fear? In part, the genocidal ambitions of the American allies in Ukraine. To the extent there are recriminations over the war inside Russia, they appear to be tied to the Russian reticence to level Ukraine to rubble and mud in 2014 instead of giving the Americans another eight years to arm and train the Ukrainian military.
‘The law’ is fundamental to liberal governance through two related premises, 1) the liberal state has been granted political legitimacy through free and fair elections, 2) as such, the state is the only authority that can legitimately arrest, try, and incarcerate citizens for crimes as defined by the state. However, in serial polls (here, here), fewer Americans believe that the US is democratic than that it isn’t. When combined with corporate ownership of Congress, the American state lacks the consent of the governed. The point: in the US, ‘the law’ lacks legitimacy as it is defined in liberal political theory.
International Law is one level of political abstraction above the laws of nations. Its premise is that independent states act as world citizens to distinguish legitimate from illegitimate acts. To take the US as an example, the US has the largest carceral population in the world in both relative and absolute terms. The class distribution of incarceration in the US has a few rich people putting a whole lot of poor people in prison. In carceral terms, the US is a misbegotten toilet of a country run by rich autocrats for their own benefit. But hey, at least the formerly and currently incarcerated can’t vote in most states, right?
This question of the US is crucial to answering the question of Russian culpability for events in Ukraine. While ‘multipolarity’ is the word of the year outside of Washington, the same tiny elite that governs the US appears sheltered from the insight that it is particularly poorly regarded by ‘the world.’ While the US sponsored coup in Ukraine in 2014 is widely known to have occurred outside of the US, it is presented as a conspiracy theory inside the US. Question: how was Ukraine a sovereign nation in 2022 when it was a US vassal state from 2014 onward?
Not only was the post-coup Ukrainian government chosen by representatives of the (Barack) Obama administration, but an IMF loan was arranged to help pay for the American military surplus that was being ‘given’ to Ukraine as NATO and the CIA trained tens of thousands of Ukrainian soldiers to slaughter their fellow Ukrainians. The Americans instigated and supported this eight-year civil war inside Ukraine until the Russians responded in 2022.
So, at what point does provocation become instigation? This is the purpose of the self-defense clause in the Articles of the UN Charter cited by the Russians. The Russians spent from 1991 to 2022 asking the US for the security guarantees due them after they facilitated the reunification of Germany. In other words, the US, France, and (West) Germany negotiated Russian help with the reunification of Germany in exchange for keeping NATO away from Russia’s border. The Russians complied, after which the US told Russia to pound sand with respect to security guarantees.
The German and French political leaderships weren’t simply in the room when the George H. W. Bush administration committed the US to keeping NATO away from Russia’s border. They were active participants in the process, meaning that the Russians heard the Americans, French, and Germans, both individually and together, making the commitment. That the US recently bombed Germany (Nord Stream pipelines)— with zero pushback from the Germans, illustrates the power relation at work.
The Russians went 2014 – 1991 = twenty-three years without security guarantees before the CIA, through its NED (National Endowment for Democracy) cutout, sponsored the coup in Ukraine. The Biden administration is likely retaining the fiction that there was no coup because there was no accompanying legal theory to legitimate US actions in Ukraine. One day the Ukrainians ran Ukraine. The next day, the Americans were choosing the Ukrainian government. While this likely can be legally distinguished from the Russian military incursion, what is the motive for doing so? Unlike the Russians, the Americans are tourists in Ukraine. If the claim is that Russian actions were illegal, why wasn’t the US coup illegal?
So, while the Russians set about finding a legal pretext for moving the Russian military into Ukraine (Article 5 of the UN Charter), the US sought no such legitimacy for its 2014 coup. In fact, even while the Undersecretary for European Affairs in the Obama administration was caught on tape choosing the new Ukrainian government following the coup, the American people were being told 1) that no such coup ever took place and 2) that Ukrainian sovereignty was uninterrupted by the US ousting its elected government and replacing it with a government chosen by the it (the US)?
Few Americans know that the George W. Bush administration not only launched a murderous and destructive war against Iraq, but also got a law passed that made it a legal obligation of the US military to ‘liberate’ any American incarcerated under international law. This was, and remains, a raised middle finger at the very conception and institutions of international law. Furthermore, the idea of mitigation, of circumstances that may legitimate otherwise illegal acts, is brought to bear through three-plus decades of American duplicity toward Russia.
Granting American deference to ‘the law’ regarding Ukraine, as has been done since February 24th, 2022, ignores that the US has granted no such deference when it comes to its own actions. George W. Bush’s War of Aggression against Iraq is still waiting to be prosecuted. This written, Russia has mitigating circumstances regarding its actions in Ukraine— three decades of American duplicity that led to the current conflict, that complicate strong claims for or against the legality of its actions. Ultimately, arguments over ‘the law’ detract from the political will needed to end the war.
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