Three Comments on Dr. Ryder's Blog of Last Sunday on Ukraine
Must Russia be defeated?
I am copying here the responses of both Dr. Close, Professor of Philosophy Emeritus of Heidelberg University, and Jamie Orr, [a former Navy judge advocate now teaching at the National War College, and a graduate of Heidelberg ('81) with degrees in Law and in Military History from the Ohio State University, University of Virginia, and Norwich University.] whose comments are provided in his personal capacity and are his personal opinions only and do not represent the views of the National War College or the Department of Defense.
I also want to acknowledge Greg Burgin’s (Heidelberg grad) brief comment, “It seems we gave our word in the Budapest Memorandum. What would be left of it if our promises to prevent nuclear proliferation are meaningless?” as I believe familiarity with the history of the Budapest Memorandum is instructive as we look at how future scenarios might play out. As in the case of the Crimea, it did not prove a sufficient deterrent, as it was interpreted by the US as non-enforceable. Greg is right, I think, in asking about the value of any future efforts to remove nuclear weapons from a State by such a “memorandum.”
Dr. Ryder will be responding to these comments, and I will possibly give myself a last word.
While, on the surface, the points raised in the post seem valid, there are some countervailing considerations that should be taken into account.
First, on the accusation that the US has abandoned principle when offering cluster munitions to Ukraine while the use by others - Russia in this case, but others as well - has been a subject of criticism by the United States, I am reminded of an analogy used by a political philosopher of the not-too-distant past. His observation was that of two men - one who pushed an old lady into the path of a bus, while another pushed an old lady out of the path of a bus. To refer to both of them simply as men who pushed little old ladies is to make a comparison that is puerile at best, reprehensible at worst.
The concern is that cluster munitions pose an unacceptable risk to the civilian population and other noncombantants. It is an unfortunate reality that ANY weapon, used improperly, can pose an unreasonable risk to the civilian population and other innocent noncombatants. Based on what is publicly available, it appears that the weapons provided by the USA to Ukraine are qualitatively different than those used by Russia and, indeed, those used in the past even by Ukraine. We also know that, while Ukraine goes to extraordinary lengths to protect the civilian population from unnecessary harm, Russia has been, and continues to deliberately target the civilian population. While Ukraine does intend to use these cluster munitions against Russian invading forces, there is every indication that appropriate care is being taken to minimize the risk to the civilian population. Some very good analysis on this subject has been posted on the website "Lawfire" managed by Prof. Charlie Dunlap of Duke law School (https://sites.duke.edu/lawfire/tag/cluster-munitions/).
On the assertions by Russia that they are doing nothing more than "protecting" the right of self-determination of the residents of Crime and the other illegally occupied territories of Ukraine, several points need to be made.
First, Russia's action, an invasion and occupation of Crimea in 2014 and the subsequent invasion in 2022, several points need to be made: First, that there was no popular request for self-determination made before Russia's invasions. Second, Russia did not bring the matter to the UN SC raising these concerns before its violation of Article 2(4) by launching a war of aggression (even assuming, probably correctly, that such an effort would have been vetoed, that does not excuse the failure to submit the matter as the law required. The USA was guilty of this same failure in its invasion of Iraq in 2004, and continues to pay the price for that failure). The issue of self-determination was raised after-the-fact and the so-called referenda were handled by Russia, by then an occupying power under the 4th Geneva Convention. That referendum violated the provisions of that Convention simply by being organized and managed by the occupying power. Beyond the legal argument was the clear absence of any moral legitimacy in such a rigged process.
Finally, there is a question of supremacy. The right to self-determination is a right recognized by international law, but all that law is dependent upon the U.N. Charter. Article 2(4) prohibits the use of force in aggression, just as Article 51 protects the right to use force in individual or collective defense. Putin's violations, in fact, have violated not just Article 2(2) but all four of the subsections of Article 2:
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
That Putin's arguments are contradicted by the facts illustrate that the arguments carry no weight - or should.
Unfortunately, as Putin and other politicians (even some in our own country) have learned, a lie repeated loudly and often enough is likely to be accepted at some point. Unfortunate, but true.
Mr. Putin can end this war by withdrawing his troops to Russia, back to the borders agreed upon BY RUSSIA. Unfortunately, as some have argued, Putin has maintained that these agreements did not (despite the clear understanding of everyone else) guarantee anything for Ukraine (https://www.chathamhouse.org/2022/08/russias-longstanding-problem-ukraines-borders). That this argument has any viability at all is due entirely to Putin's bad faith and long-held desire to restore, not just the territory of Ukraine, but of all that was once Imperial Russia to his control.
Peace will come when Russia is defeated. The fighting may stop for a while, but the war will not have ended.
I think that Jaimie Orr has made the correct analysis, including the cluster munitions issue in which U. S. criticism of their use has been predicated on risks to--or deliberate deployment against--noncombatants.
Two additional points: first, characterizing Yanukovych's February 2014 removal from office as a "coup" is Putin's word for the event. The Ukraine Parliament overwhelmingly voted to remove Yanukovych after he abandoned his position in February 2014 and left Kiev. Calling this a "coup" was a predictable spin by Putin, no doubt, given that Yanukovych fled to Russia and remains there, sentenced by Ukraine for treason.
Second, John Ryder's post puts a significant strain on the U. N. concept of self-determination of "peoples." The term, "peoples," is ambiguous in comparison with "nation." While grammatically plural, "peoples" can be applied to individuals. In that case, self-determination reasonably implies a right not to be the subject of political oppression such as denial of habeas corpus, extra-judicial confinement, starvation, assassination, threats of violence against family members, etc.
Self-determination at the individual level does not imply--at least not in the absence of overwhelming ancillary argument--a moral right to wage violence against one's alleged oppressors. For example, the right of self-determination does not entail a right of a January 6 rioter to attack a Capitol police office who was "oppressing" his or her attempt to trespass on Capitol grounds, or a restaurant patron to attack the hostess during a national health emergency when asked to present a COVID vaccination card. As a species of freedom, self-determination is full of exceptions and limitations, and is conditioned by the (legitimate) legal environment.
Does the self-determination of "peoples" apply to non-state subgroups? The general answer is "Yes," followed by several pages of exceptions, qualifications, and distinctions, but self-determination necessarily occurs in the context of law governing the people in question.
Here's an example. A subgroup of Californians in the northern part of the state have expressed a wish to secede from the state of California. That's not legally possible, so there is no "right" of self-determination in such a case. We don't have "autonomous republics" in the U. S., so that species of self-determination of a "peoples" is not applicable.
Ukraine is different in this regard, and consequently, the self-determination of Crimea was negotiated as an autonomous republic section of Ukraine. In 2014 (and now), that species of self-determination did not and does not include the unconstitutional secession of Crimea from Ukraine, let alone justify Crimea's self-declared parliament to sign a treaty of accession with Russia.
Thanks to John Bing for posting these discussions on Ukraine. I certainly respect the opinions expressed by my fellow Alums. They have all given me new perspectives to ponder and certainly differ from the talking heads on TV on both the right and left. If only our politicians could discuss such topics in a rational way.
Part II
As for the conflict of principles, it is surely true that the UN statement of these principles are placed in the context of other principles, which one of the responders was kind enough to list. These include, among others, the responsibility of all signatories to refrain from the use of force in pursuing their ends, which clearly Russia violated with respect to Ukraine. The problem is that if the principles have meaning and import, they must apply to all signatories equally, and the rest of us in making judgments about relevant cases cannot apply them differently to different cases either. Russia has clearly violated the principle of non-violence in relations with other countries, as has the US, the UK, NATO, China, and a number of other countries in recent years. NATO and the EU continue to defend the bombing of Serbia, which included civilian infrastructure – I saw one of the bridges over the Danube in Nowy Sad collapsed in the river – and support the forced secession of Kosovo that resulted. I fully agree that the Russian invasion of Ukraine was not justified, and on the same grounds neither was the NATO bombing of Serbia. If it is illegitimate for Russia to endorse the secession of Crimea and the Donbas because they were violently enabled, then it is equally illegitimate for NATO and the US to endorse the secession of Kosovo form Serbia because it, too, was violently enabled. We are not entitled to have it both ways. Something similar applies to the many other regions that have attempted to secede from the countries of which they were a part – Nagorno-Karabakh from Azerbaijan, Turkish Cyprus from Greek Cyprus, South Ossetia and Abkhazia from Georgia, the relation between Taiwan and the PRC, the mess that is Israel and Palestine, among others.
The important point was made by one of the readers that it is not clear how the UN-endorsed right of self-determination can be calibrated. Presumably it would not be expected to apply to Northern California, but what about Texas? If not, why not? The principles enshrined in UN documents had their origin in the years in which colonies were being liberated, or were liberating themselves, from their colonial masters – English, French, Portuguese, Belgian, etc. These colonies were not states at the time, so the principle of the right of self-determination, which was meant to apply to them, could not have been meant to apply only to existing states. And the US and NATO use the preeminent value of self-determination to justify the Albanian population’s desire to be independent of Serbia’s control despite the fact that Kosovo has been part of Serbia for a very long time. It is not at all clear where the line can be drawn, but it is clear that as far as currently powerful states are concerned, it is not meant to be drawn to include only existing states. In that case, there is no good reason on the face of it to say that independence is legitimate for Kosovo or Nagorno-Karabakh, but not Crimea, Donetsk, and Lugansk.
This is the reason we face the conflict between the inviolability of borders and the self-determination of peoples. When all is said and done, it still seems to me that as important as respect for borders is, and it is indeed important, and as important as it is to avoid violent intervention, it remains the case that the wishes of the people of Crimea and the Donbas deserve to be respected. For the most part, they regard themselves to be Russian. They were fine with the way things were going in Ukraine before the coup, and the Donbas problem at least could have been worked out through the Minsk Accords. All of that has been rendered moot by Western intransigence and the Russian invasion. The question now is whether to insist on Ukraine returning to its pre-coup borders in defiance of the expressed will of the people of Crimea and the Donbas, or to honor their preferences and respect their secession and annexation to the Russian Federation. A respect for people and the self-determination suggests the latter.