Jetlag, International Law and Ukraine’s Disembowelment: initial thoughts

A long, multileg overnight flight to Kiev, plus a needlessly long, jetlagged layover in Munich, affords a person lots of time to think about important things.

For example, is it wrong for a European man of indeterminate age to be wearing gold, shimmery, sequined leggings while walking through the Munich airport? Why do older German couples happily quaff beer at 9 in the morning, like a bunch of hooligan Russians? And what does international law have to do with the crisis in Ukraine?

So, Obama, and others, have been talking a lot about how Russia’s actions in Ukraine are violations of international law: the U.N. Charter, the primacy of state sovereignty and the nation-state in an anarchic environment and the very basic philosophical underpinnings of the post-Treaty of Westphalia international order that everyone at places like the Fletcher School and SAIS and Georgetown like to harp on about. That very well may be the case. And it seems sensible for the White House, as the leadership of a country that holds the rule of law as a sacrosanct organizing principle of civilization, to hammer home that particular point.

Military-personnel-believed-to-be-Russian-servicemen-walk-outside-the-territory-of-a-Ukrainian-military-unit-in-the-3202092

There’s two problems with this line of reasoning, at this moment in time.


First is an idea that’s popping up in quite a few places these days by a few people. The idea is called R2P, a wonky internationalist acronym jargon standing for Responsibility To Protect. Basically, the idea– which is more of a theory or notion or hypothesis, rather than bedrock legal principle– is that under some circumstances nations have an obligation to violate the aforementioned sacrosanctity of the nation-state border in the advancement of “bigger” transcendent ideas that bind the human race together. In other words, genocide in Rwanda? Other countries have an obligation to intervene, violate Rwanda’s sovereignty and to stop a genocide.

There’s more to it than that, but that’s the basic idea that has been evolving roughly since the end of the Cold War and the concomitant beginning of the worst war in Europe since World War II: The Yugoslav Wars. We saw glimmers of that in Syria, with the use of chemical weapons against civilians in Homs, and one could make the argument that the pressure by the international community– including the US AND Russia– that resulted in Bashar al-Assad giving up his chemical weapons is a derivative outcome of R2P.

What’s interesting is how some observers are linking the ongoing Russian adventure in Ukraine to this idea of R2P. Putin is advancing the argument that Russia needs to intervene in Crimea in order to protect Russian citizen from the nefarious plottings of evil, fascist, neo-Nazi, nationalist Ukrainians. Russia has an obligation to intervene in Crimea, the argument goes, under the green sprout legal notion.

One of the most interesting observations on this matter was by Georgetown Professor Charles King, writing in the IHT. He wrote:

Russia was in fact a pioneer of … R2P: the responsibility to protect. Under Czar Nicholas I, Russia asserted its right to guarantee the lives and fortunes of Orthodox Christians inside the territory of its chief strategic rival, the Ottoman Empire. In 1853 Russia launched a preemptive attack on the Ottomans, sending its fleet out of Sevastopol harbor to sink Ottoman ships across the Black Sea. Britain, France and other allies stepped in to respond to the unprovoked attack. The result was called the Crimean War, a conflict that, as every Russian schoolchild knows, Russia lost.

That idea– brilliantly in my jetlagged opinion– showcases both slipperiness of the R2P doctrine and the brilliance of Kremlin policy makers– Putin included.

The second problem with the international legal argument condemning Russia’s invasion can be summed up in a word: Iraq.

The way the Kremlin (and many other sensible Russians and even Americans, too) look at it, the Americans have real nerve to be lecturing Moscow about the violations of international law in Ukraine when that very edifice was turned into rubble by the 2003 invasion on the pretext of … um… what was it again?… um…. weapons of mass destruction?… nope… um… democracy in the Middle East…. um… nope… Saddam gassing the Kurds 20 years earlier?….. nope…. how about at UN Charter Chapter 7-type invoking of self-defense, in response to the Sept. 11 attacks?… um….

In this thinking, Putin has every reason to say “how do ya like dem apples” to Obama as Obama criticizes the Russian Crimea invasion, and I have to say, there’s something to this.

It’s called hypocrisy.

And while it may not justify Putin’s decision to what appears to be annex the Crimea, a la Hitler and the Sudetenland in the 1930s, it very much disembowels the US argument that Russia is wholly in the wrong.

If you’re going to use moral opprobrium as a weapon, make sure your powder is dry. In the US case, thanks to Iraq, it’s pretty damp.

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