Nimble. Smart. Good judgment. With a crackerjack foreign policy team. The president we need, and the president we have--Part Two
Part One of this article, published on April 18, 2024, is found here.
See also, James Rowles, “House passes military aid for Ukraine. Now what? Fundamental flaws in strategy must be corrected,” Trenchant Observations, April 21. 2021.
Part Two
Written on April 18, revised on April 24, 2024
We ended Part I of this article with the question:
What could a nimble and smart U.S. leader with a crackerjack foreign policy team do, now, to reverse the accelerating slide toward inevitable defeat at the hands of the Russians in Ukraine?
It is worth articulating the strategy such a leader and team might adopt, however unlikely it may be that Joe Biden and his team will adopt it. Perhaps EU and NATO leaders will step in to fill the breach, particularly as a Ukrainian collapse or defeat looms closer.
First, such a new strategy should acknowledge the fact that the war in Ukraine is “Our War”.1 That Vladimir Putin and Russia are attacking much more than Ukraine, as their cyberattacks and interference in electoral processes in other countries demonstrate.
Second, they must disregard the self-imposed “red lines” Biden (and Olaf Scholz, in particular) have set up to deter themselves from acting in ways which could help Ukraine on the battlefield. Stemming from Biden’s and others’ fears of nuclear war, this self-deterrence has been perhaps Putin’s greatest weapon in the war.
To eliminate these self-imposed “red lines” means that the leader and the team we need would withdraw all restrictions on the use of weapons supplied by NATO countries against targets in Russia and the Kerch Strait Bridge. Ukraine would then be subject only to the limitations contained in the international law of self-defense and Article 51 of the U.N. Charter. Ukraine would remain subject to the requirements of “ necessity” and “proportionality” which are inherent limitations on exercise of the right of self-defense.
Ukraine would also remain limited by International Humanitarian Law, including the prohibition against targeting civilians and civilian infrastructure.
Opponents of such restrictions sometimes point to the Allied bombings in World War II of Dresden and Hamburg, and of Hiroshima and Nagasaki, as precedents justifying such attacks on civilian populations. However, these bombings took place before the adoption of the Geneva Conventions on the Law of War in 1949, which made them illegal.
Ukraine’s entire defense and its ability to elicit support from others depends on international law, and Ukrainians should be held accountable under international law and international humanitarian law for their actions. No bombing of schools or hospitals, or residential neighborhoods or other civilian infrastructure should be accepted by their leaders or their partners.
Third, the U.S. and Germany should immediately transfer to Ukraine the weapons and weapons systems they so desperately need to defend themselves. And NATO and EU members should exercise maximum pressure on the U.S. and Germany to do so.
The US. should send its long-range (300 km) ATACMS artillery rockets for use with unmodified HIMARS artillery units, in great numbers, at the first opportunity. News reports indicate that a provision added in the House version of the Ukraine aid bill requires long-range ATACMS be sent to Ukraine. This may in fact begin soon.2
Germany should send large numbers of its Taurus cruise missiles (with a range of 500 km) to Ukraine, beginning immediately. Other NATO and EU members should exercise maximum pressure on German Chancellor Olaf Scholz to authorize and transfer the Taurus missiles without further delay They should also publicly refute the excuses Scholz has been giving for refusing to send the missiles. His reluctance and refusal are due to domestic political and SPD intra-party considerations, not to the spurious reasons he has given for his inaction.
It is time to pierce the fallacious argument of Scholz that providing Taurus missiles to Ukraine would make Germany “a party to the war”. Even if German soldiers were necessary in Ukraine to maintain or oversee the deployment and use of the missiles, that would not make Germany “a party to the war”—a legal concept which in this connection has not existed since the adoption of the U.N. Charter in 1945. Moreover, it appears that German soldiers would only be necessary in Ukraine in order to control the targeting decisions. With appropriate training, Ukrainians are quite capableof handling the targeting decisions on their own.
In addition, a maximum number of F-16 fighter aircraft should be transferred to Ukraine, with all necessary maintenance facilities, ordinance, and related infrastructure, as quickly as Ukrainian pilots can be trained in ramped-up training programs in NATO and other coalition countries.
Fourth, plans should be drawn up for the dispatch of combat forces from NATO countries to Ukraine, to stand as a guarantee against a Russian victory. Decisions to actually deploy combat troops in Ukraine would come later, depending on events.
When such contingent plans are made public, Putin will threaten the use of nuclear weapons. Yet we should not forget, or let Putin forget, that NATO countries also have nuclear weapons. A nuclear show-down is not a binary affair in which the choices are simply appeasement or nuclear war. There are many steps on the ladder of nuclear escalation.
Russia’s use of a nuclear weapon would probably cost Putin Chinese support. It could also lead to the destruction of Russian military forces and equipment in Ukraine by conventional NATO forces.
Western countries must draw up plans and be prepared to dispatch troops to Ukraine if necessary to avoid Ukrainian collapse and Russian victory. This is the possibility Emmanuel Macron raised at the defense ministers’ summit on April 26, 2024.
Before any deployment of combat troops, military forces from NATO countries might begin assisting in shooting down drones and missiles fired at cities and civilian targets in Ukraine, as they did in the defense of Israel against Iran’s massive attack on April 13-14, 2024.
These measures would probably stop the Russian advances. They would definitely help to turn the tide of the war, and would help to ultimately achieve victory and the defeat of Russia’s aggression and illegal occupation of Ukrainian territory.
In conclusion, the U.S. and the West need to recognize the true significance of Russia’s war of aggression in Ukraine and its cyber-attacks and electoral interference in NATO and other countries. They must understand and act on the fact that this is “Our War”.
At the earliest opportunity, they must send Ukraine the weapons it needs to defend itself, and remove all restrictions on their use against targets in Russia.
Joe Biden, Olaf Scholz and other leaders need to stop hiding behind the fallacious argument that taking these measures would make the U.S. or Germany “a
party to the war”—a concept which in this context has no basis in international law.3
Ultimately, Joe Biden must overcome his fear of Putin’s nuclear threats. Bowing to them is tantamount to appeasement. The same threats could be used by Putin to deter Biden from responding militarily to a Russian invasion of Estonia, Latvia, or Lithuania, all NATO member countries. As NATO countries, they are all in theory protected by the joint defense obligation contained in Article 5 of the NATO treaty.
So, the question is not one of what to do, but rather one of how to move Joe Biden (and Olaf Scholz) to take the measures that will be necessary to defeat Russia and achieve victory in Ukraine, and in the broader struggle to overcome the Russian onslaught.
Biden must be reelected in the November 2024 presidential election, for a victory by Donald Trump, the pro-Putin and pro-Russian leader of the Republican Party, would be disastrous not only for Ukraine but also for the security of Western Europe, the United States, and the other countries in the Free World—an old concept which now has acquired new meaning.
Others can play important roles. Particularly after the election in November, Senate and House committees could start to hold oversight hearings, and demand explanations from the Biden administration regarding why they maintain restrictions prohibiting the use by Ukraine of weapons supplied by NATO countries against targets in Russia and the Kerch Strait Bridge.
They could demand to know what Biden’s strategy for victory in Ukraine is. And if the administration’s response contains references to a negotiated resolution of the conflict, they could demand to know whether the administration would accept a negotiated solution which contained “territorial concessions” in violation of peremptory norms of international law. And they could demand a full explanation from the administration of what that would mean in terms of U.S. national security, and international security throughout the world.
Congress has the power to shape U.S. policy towards Russia and Ukraine. The mere fact that the House was able to add a provision to the Ukraine aid bill that requires the Biden administration to send the full-version, long-range (300 km) ATACMS artillery rockets to Ukraine demonstrates that Congress can play an important role in overcoming the frozen strategic thinking of Joe Biden.
Other NATO countries can push back on Biden’s “red lines” regarding not attacking targets in Russia or the Kerch Straight Bridge. They themselves can provide weapons to Ukraine which do not contain such restrictions. As far as is publicly known, there are no binding NATO decisions which would prohibit such actions.
Yet even if there were such a NATO decision, it would probably be invalid under international law, since the right of collective self-defense is enshrined in Article 51 of the U.N. Charter, which under Article 103 of the Charter has precedence over any other treaty. Article 103 provides:
Article 103
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
In other words, the NATO treaty and decisions taken under its authority cannot restrict the right of collective self-defense under Article 51 of the United Nations Charter.
Realistically, however, such questions are likely to be decided on a political as well as on a legal basis.
Within NATO countries, international lawyers and their organizations (e.g., the American Society of International Law) can and should speak out to make the essential points outlined above. Other foreign policy organizations within each country (e.g., the Council on Foreign Relations) and/or their leaders should do the same.
Moreover, efforts in NATO and other countries supporting Ukraine should be joined with each other, so that the public discourse in each country can be informed by the arguments of those from other countries, and not just the loudest voices in their own respective news silos.
Once we understand what is at stake in Ukraine and in the current struggle with Russia, we must all act—governments, organizations, and individuals—to defend our civilization based on reason and law, against the efforts of Russia to destroy international law, the U.N. Charter, and the U.N. Charter-based international legal order.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See Nicolas Tenser, Notre Guerre: L crime et l’oubli—pour une pensée stratégique (Paris: Éditions de l’Observatoire/Humensis, 2024).
See also,
1)Laure Mandeville, “Weit über die Ukraine hinaus ist etwas sehr viel Tiefgreifenderes im Gange”: Der politische Philosoph Nicolas Tenzer erklärt den größten Fehler im strategischen Denken des Westens: die Annahme, dass Putin in der Ukraine einen klassischen territorialen Krieg führt. Und stellt klar, dass es eine Chance gegeben hätte, den russischen Machthaber von seinem Vorhaben abzuhalten,” Die Welt, den 11. Februar 2024 (14:50 Uhr (Interview mit Nicholas Tenzer, Übersetzung von von Le Figaro);
2) Laure Mandeville, “‘Far beyond Ukraine, something much more profound is going on”; The West must recognize the extent of the “total war” that Russia’s ruler Vladimir Putin is leading against Ukraine, demands the French author and political philosopher Nicolas Tenzer in his book ‘Notre guerre”,” Die Welt, February 11, 2024 (2:50 p.m.). Interview with Nicolas Tenzer, translated from French article published in Le Figaro;
3) Laure Mandeville, “Nicolas Tenzer: ‘La question du mal est une porte d’entrée pour l’analyse stratégique’,” Le Figaro, le 1 février 2024 (18:57);
4) Laure Mandeville, “Nicolas Tenzer: ‘The question of evil is a gateway to strategic analysis’,” Le Figaro, February 1, 2024 (18:57).
See, e.g. , Robert Jimison, “Here’s How Johnson’s Jigsaw Puzzle of a Foreign Aid Plan Works,” New York Times, April 18, 2024, updated April 20, 2024.
See also, Eric Schmitt, “U.S. Secretly Shipped New Long-Range Missiles to Ukraine,; Ukrainian forces for the first time used a longer-range version of weapons known as ATACMS, striking an airfield in Crimea and Russian troops in southeastern Ukraine,” New York Times, April 24, 2024 (Updated 3:44 p.m. ET).
Jens Stoltenberg, the Secretary General of NATO, made this point particularly clear in his interview on PBS News Weekend on April 20, 2024. He stated clearly that Ukraine had the right to strike targets outside its territory (i.e., in Russia) in exercise of its right of self-defense under international law and Article 51 of the U.N. Charter. He stated further, unequivocally, that assistance to Ukraine by a third state in exercise of its right of collective self-defense did not make that country a party to the war.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
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