Reflections on the war, and on dangerous developments on the American Front

Doctor of Juridical Science (SJD) in International Law, Harvard University

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The War in Ukraine

Russia’s war of aggression against Ukraine rages on, claiming a terrible toll in soldiers’ lives at Bakhmut. The horror of this war is like that of the First World War. Trench warfare.

I look forward to seeing “All Quiet on the Western Front”, this year’s winner of the Academy Award for Best Foreign Film. The  original book by Erich Maria Remarque, “Im Westen nichts Neues” was published in Germany in 1929, but it didn’t prevent the fascists from taking over the streets and Adolf Hitler from seizing power, after assuming office in January, 1933 through constitutional means.

The war drags on, as President Joe Biden and other decision makers in Washington and other capitals continue to act in “bureaucratic time” instead of at the tempo of the war, “in war time”.

Biden’s thinking continues to be muddled, like that of his principal officials.

Secretary of State Antony Blinken revealed the reigning confusion in their minds when he testified before the House Appropriations Committee on March 23, 2023. Asked if U.S. and Ukrainian goals are in alignment in terms of expelling Russian forces from the Crimea, Blinken made a very ambiguous statement that seemed to suggest Ukraine might make territorial concessions at some point in the future.

While the U.S. supports upholding the territorial integrity and political independence of Ukraine, Blinken said, it would be up to Ukraine to decide how that is defined in practice. He stated further that Ukraine might decide it could not achieve all of its goals on the battlefield, and might decide to pursue some of them diplomatically.¹

Such statements are  a gift to Vladimir Putin, suggesting that U.S. support for expelling Russian forces from the Crimea is sharply limited. It is disingenuous in the extreme for Blinken  to suggest Ukraine will “define” what “territorial integrity” and “political independence” mean in practice in the negotiations. It is like saying that in the negotiations Ukraine will “define” the meaning of “a straight line”.

The U.N. General Assembly Resolution on February 23, 2023 refers explicitly to the internationally recognized territorial limits of Ukraine, i.e., those existing in 1991. There is nothing to define. Any territorial adjustment made by Ukraine with the Russian army either occupying its territory or on the border would be void under peremptory norms of international law.

One can see how Blinken is trying to square the circle here. It is clear from many sources. some official and some on background, that the U.S. is not committed to supporting Ukrainian efforts to expel Russian forces from the Crimea.

Blinken’s statement is duplicitous. We don’t know if Biden has promised Putin not to support Ukrainian efforts to expel the Russians from the Crimea—in National Security Adviser Jake Sullivan’s secret back-channel discussions with Putin’s top aides, or through other channels.

We won’t know until Sullivan is called to testify in Congress to answer this specific question, and also whether Biden has undertaken to respect Putin’s “red line” prohibiting U.S. support for Ukrainian military actions against targets in Russia proper.

Such actions are lawful under the international law of self-defense and Article 51 of the U.N. Charter.

But so far Biden has exacted promises from Ukraine not to use U.S.-supplied weapons to strike targets in Russia, while also refusing to supply weapons with that capability, such as the long-range (300 km) ATACMS artillery rocket munitions for the HIMARS artillery units, or modern jet fighters such as the F-16. To make sure Ukraine could not use the HIMARS to launch long-range artillery rockets into Russia, Biden had the HIMARS transferred to Ukraine modified so they could not exceed the authorized 80 km range.

Meanwhile, Ukraine is running out of men and has been forced to adopt mandatory conscription since earlier this year.

Biden appears still to be constrained in his actions by his fear of Putin and Putin’s nuclear threats. Consequently, the U.S. and NATO have been supplying Ukraine only with the weapons that will enable Ukraine to contain Russian advances on the battlefield, not with those needed to secure victory.

Biden is not committed to securing a victory for the Ukraine and the U.N. Charter by expelling all Russian troops from all of the territory of Ukraine. At present, this seems to be the only way a ceasefire can be obtained and negotiations for a just and durable peace settlement can begin.

On the American Front

As we have observed for some time, the American Front may be the most important front in the Ukraine war.

The situation in America today is eerily similar to the situation in the Weimar Republic in the late 1920’s and early 1930’s.

Tens of millions of Americans support an apparent fascist movement led by a charismatic Leader who does not accept the results of the 2020 presidential election, which he lost by some seven million votes. Many among the Leader’s supporters are willing to threaten and engage in acts of violence to support their Leader. On January 6, 2021, many did so.

The Republican Party has been taken over by the Leader’s followers and supporters. The Leader himself has issued veiled calls for violence and violent demonstrations to prevent or respond to his  indictment and arrest by the Manhattan District Attorney in connection with the Stormy Daniels affair.

Meanwhile, the federal Special Prosecutor charged with investigating the Leader’s retention of classified documents at Mar-a-Lago, and potential obstruction of justice by filing false statements through his lawyers to the Justice Department, appears to be making rapid progress toward a recommendation to Attorney General Merrick Garland that the Leader be indicted on these charges.

The Special Prosecutor is also charged with investigating the Leader’s involvement in the January 6, 2021 Insurrection.

Garland has been reluctant, perhaps out of fear,² to indict the Leader for any of the many serious crimes he apparently committed while in office as President.

In short, in the U.S. the Leader–and former President of the United States–refuses to recognize the results of the 2020 election which he lost, and has been making incendiary statements and threatening violence if he is indicted. The Republican Party appears to be entirely under his control, with few if any leaders condemning him publicly for his incendiary statements.

The situation the country finds itself in is extremely problematic. Tens of millions of people appear ready to follow their Leader, with many of them prepared to commit threats and acts of violence to prevent prosecutors from indicting and arresting the Leader.

A weak central government has been afraid to bring criminal charges against the charismatic Leader of what seems to be essentially a fascist cult. The Leader is a candidate for the presidency of the United States.

The 2024 presidential election will be held in one year and seven months. Primaries will be underway in one year.

In Germany in the years leading up to 1933, few leaders thought Adolf Hitler had any chance of assuming power in the Weimar Republic.

History records, however, that they were wrong.

In the U.S. in 2023, the risk of the Leader assuming power appears much greater. He has already occupied the presidency for one term. His party controls the U.S. House of Representatives and state governorships and legislatures throughout the country. One of the leading cable new channels provides him with one-sided news coverage and propaganda support 24/7.

The Leader has excellent prospects of winning the Republican nomination for the presidency.

Republicans have appointed loyal followers of the Leader to many state electoral positions that have great power over the counting of the presidential vote.

While the word “fascist”³ scares everyone and in particular Democrats who are afraid to use it, if we look at things objectively we see a situation in which what appears to be a very large fascist movement threatens to win the presidency in 2024.

If we were describing a similar situation in another country, e.g., France or Italy, what terms would we use?

The biggest question is whether Joe Biden and Merrick Garland will have the intestinal fortitude to act decisively to hold the Leader accountable under the law.  Do they have the guts to try to take the Leader down by indicting him for crimes he appears to have committed?

Will they seek to reestablish the rule of law, or continue the current policy of granting the Leader and his associates apparent impunity?

The risk to Ukraine of the Leader winning the presidential election in 2024

During his four years in office (2017-2021), the Leader never voiced a single word of criticism of Vladimir Putin.

If the Leader wins in 2024, it is hard to see how the flow of weapons and financial support to Ukraine could continue at its current rate.

U.S. leadership of the coalition supporting Ukraine would be likely to disappear. And without U.S. leadership and economic power, it is hard to see how Ukraine could continue its fight against Russia “as long as it takes” to secure victory.

More likely would be the defeat of Ukraine, and of the U.N. Charter and international law. Where things might go from there is hard to predict, but would definitely not be in a good direction.

It is time for Biden and Garland to undertake decisive action to bring the Leader and his accomplices to justice. If they don’t, they could be making the same mistake politicians in Weimar Germany made in 1932 and 1933.

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See also “Why I care about the war in Ukraine,” Trenchant Observations, June 26, 2023,

1. See, e.g., Roland Oliphant, “Ukraine may not be able to reclaim Crimea by force, US says; Secretary of StateRoland Oliphant, Antony Blinken claims some of Kyiv’s war aims may only be achieved through diplomacy instead of military action,” The Telegraph, March 24, 2023 (5:08 pm);

2. See, e.g.,

“FEAR: After delays and hesitations, the looming arrest of Donald Trump,” Trenchant Observations, March 21, 2023.

3. See,

1) Dictionary definitions of fascism, here.

2) “Ukraine War, August 23, 2022: Recognizing genius--Trump as the most brilliant fascist demagogue since Adolf Hitler,” The Trenchant Observer, August 23, 2022.

3)”Fascism in America is here NOW, in the Republican Party,” The Trenchant Observer, May 30, 2021.