Russo-Ukrainian War – a conversation with Richard Falk

[This is a discussion between Nina Prusac (ISCI Intern) and Prof Richard Falk (ISCI Honorary Fellow), which took place in March 2022]

Nina: Professor Falk, thank you so much for joining me today.

Professor Falk: I’m very happy to be here and hopefully have a good conversation.

Nina: So firstly, could you explain how this invasion violates international law and is it a crime of aggression? What are the key legal aspects that we need to understand?

Professor Falk: I think this is a very clear example of violating the most basic norm of contemporary international law, which states that no use of force across an international boundary is legal, unless it’s in response to a prior armed attack and can qualify as an act of self-defence. Even then, it needs to be reported to the UN Security Council and obtain the approval from the UN. There’s no question that this is a crime of aggression and a crime against peace in the Nuremberg sense, the judgment that was made against Germans after World War Two. At the same time, there’s an ambiguity that underlies the clarity of international law, and that is the degree to which geopolitical actors are given an exemption from the norms requiring adherence to international law. This exemption is not a matter of practice, but it was designed, embodied in the UN charter itself in the form of giving the power of veto to the five permanent members of the Security Council, which of course, includes Russia. Therefore, the veto means that there is an exception within the framework of the UN itself, which is supposedly the guarantor of international law, and it applies to the most dangerous and the most powerful countries in the world. So, there’s a contradiction between what international law prescribes and what geopolitics allows. There are certain norms in geopolitics that created an ambiguity in the Ukrainian crisis; it is a matter of a failed political practice that the states that qualify as geopolitical actors maintain spheres of influence close to their borders and that other geopolitical actors respect that sphere of influence.

One can argue that from the Russian point of view, their interests in their border regions have not been respected. This involves partly the suggestions that Ukraine might become a member of NATO, which has always been a kind of alliance directed at Russia, previously the Soviet Union. Furthermore, there were signs that the US in particular intervened in the 2014 elections taking place in Ukraine to make sure that an anti-Russian, pro-western leader was selected. So, this geopolitical norm complicates a perception of these events from a world order perspective.

Just one final point; after World War Two, the prosecution of German and Japanese leaders for crimes of aggression was a case of ‘victor’s justice’, meaning that the crimes of the victors were excluded from accountability and scrutiny. So again, that’s a geopolitical norm: if you win a war, you can impose justice on the loser and the winner enjoys impunity. And that’s embodied in international law itself. The Nuremberg judgment is considered a major development in international criminal law, but it’s a development that makes allowances for geopolitical norms. And one of them is that if you win a war, a big war, you’re not going to be held accountable if you commit crimes. The winners in World War Two were certainly not subject to investigation nor indictment for dropping atomic bombs on Hiroshima and Nagasaki and the strategic bombing of entire German cities in ways that were indiscriminate and seemed to be contrary to international law.

Nina: As an extension to the ‘victor’s justice’ term, obviously some big players on the international geopolitical scene today, like Germany, India or Japan, are excluded from permanent membership in the UN Security Council because of the consequences of World War Two. Is it likely that Russia will lose its seat on the UN Security Council because of this invasion?

Professor Falk: I very much doubt it. It would have to be expelled from the UN completely because part of the UN charter is to confer the permanent seat and the right of veto on the five permanent members of the Security Council, and changing that requires a decision of the Security Council that is itself subject to the veto. There’s a constitutional impediment to eliminating Russia from its Security Council permanent seat. But in addition to that, one of the main objectives of the UN, as compared to the League of Nations which preceded it, is to achieve universality of membership. And whether there’s agreement or not with what a particular government is doing, there have been no efforts to expel or to diminish the privileges of a UN member, let alone one of the permanent five in the whole history of the UN. South Africa was very unpopular in the apartheid period. Israel, in various ways has been very unpopular at various times. The Soviet Union, of course, was quite unpopular, and the most that was ever done along these lines was against it was in the midst of the Cold War, when the West tried to suspend the Soviet voting rights because they refused their funding obligation in relation to peacekeeping operations with which they disagreed. And it was proved to be a failure. This effort at a punitive response didn’t succeed and was seen as actually weakening the UN rather than strengthening the norms of funding payment that were important in that context.

Again, the universality of UN membership is very important. Not only has the UN never expelled any country, but no country has seen it in their interest to leave. Indonesia did for a very brief period in the mid-1960s, but they immediately re-joined. The Soviet Union boycotted the Security Council in the 1950s because of the refusal to replace nationalist China with communist China. And when the North Korean invasion of South Korea occurred in 1950, the USSR was absent from the Security Council and therefore couldn’t veto the Security Council call for a collective defence. Soviets at the time said they would never make that mistake again. Subsequently, no country has boycotted the Security Council. Therefore, one is confronted with a lot of complexity and ends up with an ambiguous situation where there are no good answers.

Nina: Putin has been struggling to find a legitimate casus belli. He’s pointed out the hypocrisy of the West, particularly the US and the expansion of NATO (and we will discuss that in a minute), but could you comment on the claims regarding genocide and Russia’s alleged responsibility to protect ethnic Russians and Russian speaking people in Ukraine?

Professor Falk: I think there’s very little substance to those claims. The claim of genocide seems to me a somewhat hysterical way of characterizing what is undoubtedly a discriminatory policy practice in western Ukraine and Kyiv on its two Russian majority provinces in the Donbas region in eastern Ukraine. The so-called Minsk agreements reached in 2014/15 were meant to avoid internal conflict. They were supposed to create a high measure of self-government and non-discrimination in the relationship between Ukraine as a state and Donbas as a region in the state. But those agreements are generally regarded as having not been complied with by Ukraine. So, there is a human rights issue, but it is not an issue that justifies intervention absent a Security Council authorization given to Russia to do so. Putin didn’t seek the authorization, nor would he have received it had he sought. But again, that’s not out of keeping with the way in which geopolitics is practised. The Kosovo intervention by NATO in 1999 similarly evaded the UN. It didn’t receive nor even seek UN authorization and yet initiated basically an anti-Serbian war on human rights grounds, based on what Serbia was alleged to have done in Bosnia. It was arguably a desirable humanitarian initiative, but it was also taken as a way of showing that NATO was still relevant even though the Cold War was over. So, there were mixed motives, as there often are in these kinds of ambiguous situations. But by and large, Putin’s legal and world-order humanitarian rationalizations are not of sufficient weight to be taken very seriously.

Nina: The West has been moving closer to Ukraine for years now, negotiating for EU and NATO memberships, supporting pro-Western groups, even involvement in, as you mentioned, the pro-Russian former president Yanukovych. There are NATO bases in the Baltic countries, in Poland, Romania, Bulgaria, none of which were initially meant to be part of the NATO pact. And Putin notices this and claims self-defence because Russia is basically surrounded. And if the situation was reversed, I’m curious how the US would react if Russia came to its backyard with military bases like, for example, during the Cuban Missile Crisis. So how prevalent was NATO’s move closer to the Russian border in instigating this conflict?

Professor Falk: There’s no doubt that NATO, the West, and US in particular were, acting to weaken, if not subvert, Russia’s claimed sphere of influence around its borders, particularly as you suggest, in Eastern Europe and even more provocatively in Ukraine. And this relates to my earlier comment that from the point of view of geopolitics, what Putin has done is a humanitarian tragedy for the people of Ukraine but is in accord with geopolitical norms, including the US’, which long maintained a so-called Monroe Doctrine for the whole of the Western Hemisphere that warned Europe not to attempt colonization and expressed a variety of claims to protect American interests in Latin American countries. The Cuban Missile Crisis was, in some ways, a dangerous precedent for what’s happening now in the Ukraine. A real catastrophe was only avoided because the two leaders at the time, Kennedy and Khrushchev, acted in a prudent and sensible way, recognizing the mutual interests of the two countries and giving each other room to show its own society that it hadn’t surrendered or backed down under pressure. But I’m afraid we don’t have that quality of leadership on either side at this point. The behaviour of the US toward China prior to the Ukrainian crisis indicated a certain desire by the political class in Washington to find a geopolitical pretext for what amounts to a new Cold War. This desire indicated a new, at minimum, rivalry with other states, both economically, ideologically and to some extent militarily, so that there was an atmosphere of intensifying a great-power conflict which, unlike in the Cold War, was against the background of unmet global challenges, most dramatically those associated with climate change. So, it’s very costly from a world order perspective to have resources and political energies devoted to these kinds of conflicts and withdrawn from the ecological hazards that threaten the stability of the whole world.

Nina: We’ve been speaking about the use of force or hard power as a way of accomplishing geopolitical goals. Putin has basically claimed three main reasons for the invasion: genocide, self-defence and historical ties to the territory and people of Ukraine. Could we maybe talk a bit more about what geopolitical benefits does Russia have from the invasion?

Professor Falk: I think in retrospect, this invasion and attempted interference with the internal political life of Ukraine is one more failure of regime-changing interventions that the Soviet Union experienced in 1979 intervention in Afghanistan. The US has experienced a series of setbacks, starting with Vietnam, then Iraq and Libya. The post-colonial world has evened the balance of power between the militarily superior intervenor and the politically persevering nationalism of the society that is the target of intervention. In the pre-World War Two context, interventions were efficient means of projecting power. Now globally, military superiority no longer controls political outcomes. In my view, Putin miscalculated in thinking that it would be a cost-efficient way of extending the Russian influence to what they call ‘the near abroad’ and re-establishing a Russian sphere of influence in Ukraine. What it has turned into is a crisis confronting Putin in his own country; unprecedented protests by Russians against a war that they regard as unnecessary, morally wrongful and damaging to Russian claims of political legitimacy.

There is no graceful way of achieving an exit from Ukraine, so Putin is confronted with the choices that I’m sure he didn’t want of either escalating by extending the combat zone or by effectively acknowledging the failure of the policy and withdrawing. On its side, the West has played a dangerous game by not giving Putin some, I wouldn’t say respectful, but maybe a respectable way out, a way to withdraw from the policies without losing his stature as a leader of an important country. I think that the West has been unnecessarily provocative and has treated the victimization of Ukraine in a way that it hasn’t treated other comparable victimization, such as in Syria, Iraq, and much less the Palestinians who have suffered from decades of inhumane occupation and unlawful behaviour. In those cases, the world has done nothing effective to respond. So, there are double standards which are accentuated by the racist aspect of treating the victims of Russian aggression differently than the victims of Western aggression. For instance, the Ukrainian refugees are welcomed, whereas Syrian refugees confronted barbed wire and hostility. One has to remember that the Ukrainians are white Christians by and large, not Islamic and non-Caucasian Muslims. And that sends a racist signal to the rest of the world. Understandably, Ukraine is, of course, part of Europe, but even the treatment of Slavic refugees and victims of the events following the breakup of Yugoslavia weren’t shown the kind of empathy that is being displayed now for the Ukrainian people.

Nina: Now that you’ve mentioned Yugoslavia, I’m drawing parallels to how much more solidarity and coverage the Yugoslavian war got in comparison to, for example, Rwanda and the genocide that was happening there in approximately the same time.

Could you comment a bit more on Western hypocrisy? There’s a lot of intense criticism of the invasion and support for Ukraine from all around the world. And I think rightfully so; it’s an illegal and unnecessary war. However, we haven’t seen nearly as much coverage and compassion to other conflicts that were not happening on European soil and that were undertaken by the US and its allies.

Professor Falk: I would accentuate your point or underscore that double standards are characteristic of the behaviour of large states in relation to the pursuit of their strategic interests. And Ukraine is, in addition to racism as an underlying factor, highlighted because it’s taken as a strategic encounter of great importance. Whereas the situation in former Yugoslavia was not seen as strategically vital on the geopolitical chessboard, so to say. Even more so with Rwanda. The Yugoslav wars happened within the borders of Europe and therefore had a certain prominence. If Yugoslavia had been located in the middle of the Pacific, I’m not sure it would have gotten the attention that it did receive. Further, I’m not sure there would have been any interventions in the Bosnian or the Kosovo war. It is crucial to understand that the geopolitical stakes of conflict are very important in shaping a humanitarian response. If the victims are in a country that is viewed as geopolitically marginal or remote, the response will be very modest or even just rhetorical. But if the conflict is in a core region or touches on core issues, then it could be very prominent and provide a moral justification for the use of force.

It is important for the West and particularly the United States to find a moral, as well as a legal justification for intervening in an ongoing war. In the Ukrainian crisis, the West hasn’t committed itself to a full-scale military intervention, but it is supplying weapons directly and indirectly and imposing a very harsh spectrum of sanctions. It is practicing coercive diplomacy in response to Russian aggression and quite openly seeking to inflict pain on Russian society as a way of either punishing or influencing Russian behaviour.

Nina: Building on that, what should be the role of the international community? As you’ve mentioned, there are harsh sanctions, travel bans, freezing assets, and sending equipment. But, if the invasion continues to escalate, do you think that humanitarian intervention would be justified, and what would be the consequences of the involvement of other countries?

Professor Falk: There are really two questions there. The humanitarian intervention could be morally justified and politically explained, but it would probably be imprudent because of the dangers of escalation. These dangers threaten to cross the nuclear threshold, so prudence becomes a geopolitical virtue in a situation of this kind. And one would hope that all measures of diplomatic initiative were attempted to de-escalate rather than to go in the opposite direction.

As far as the responsibility of the international community is concerned, it is not equipped to address geopolitical infractions of international law, no matter how serious. First, it doesn’t have the capabilities. Secondly, it doesn’t really have the authority because of the veto power. The UN, in its defence, was never thought to have that role. Otherwise, giving the most dangerous countries a veto power would be an obvious contradiction in the peacekeeping/war-prevention role that the preamble to the UN charter declares, but then the charter itself contradicts. In a certain sense, this is an incoherence at the global level.

You can also question whether it’s really appropriate to use the phrase ‘international community’ because community implies shared values. The UN is structured around not only geopolitics, but national interests. The governments don’t really act on behalf of the global or human interests, but they pursue their national interests. President Trump, for one, made that very clear by his so-called transactional approach to international relations which meant that the US would only do things internationally if it was serving its national, strategic, and material interests.

The West tries to use the UN and a situation like this as a policy tool to reinforce its legitimacy claims to act aggressively. This worked, for example, in the first Iraq War. When Iraq under Saddam Hussein annexed Kuwait, there was a successful use of UN authority to end the aggression and to reverse it. But there was no geopolitical actor directly involved, and at that point, Russia was not opposing the West, as it has been doing in more recent years.

Nina: In your opinion, is it likely that Russia, if pushed far enough, will use nuclear weapons? And in that case, what would the response of other nuclear countries be? Are we anticipating mutually assured destruction?

Professor Falk: Well, it’s certainly in the picture now. One hopes that leaders on all sides are not crazy enough to push that possibility closer to reality. We don’t know the mental stability of the leaders of important nuclear weapons states and how they would act under this kind of pressure. The result of crossing that nuclear threshold would be disastrous in terms of the catastrophic damage, but also in terms of convincing many other countries that they would be much better off having nuclear weapons than not having them. Ukraine had fifteen hundred nuclear warheads at the time the Soviet Union collapsed in 1991, but it gave them up in 1994 when it joined the Non-Proliferation Treaty. If Ukraine hadn’t given up its nuclear weapons, it’s arguable that it would never have been subject to this kind of attack. Libya is another country that gave up its nuclear capabilities and was attacked. Iraq was also attacked. North Korea, on the other hand, has not been attacked. Nuclear weapons are yet another dimension of this double standard. Israel was secretly helped to acquire its nuclear capability and has not been compelled in any way to participate in the non-proliferation regime. For instance, the obvious solution to the Iranian nuclear weapons program would be to establish a nuclear weapons free zone in the Middle East that included Israel. But the West and again, particularly the US, is so much under the influence of Israel that it won’t even allow that issue to be discussed, much less acted upon.

Nina: At the moment, it seems that the resolution for this conflict is going to be either basically rewarding Russia for its war crimes, letting it either annex the regions or get away unpunished with crime of aggression or the possibility of involvement of other countries and basically starting a World War Three. How do you expect this situation to evolve and eventually end?

Professor Falk: Well, first of all, I would question whether Russia will get away with it, even if they do annex Ukraine, which I think they won’t do at this stage, but I’ve been wrong about this before. However, the sanctions will be intensified and that will cause great damage to the Russian economy. As a consequence, Russia will suffer greatly, especially the population. Those sanctions won’t be lifted until the Russians withdraw from Ukraine. The best outcome from the Russian point of view if they continue with their Ukrainian aggression is to suffer the consequences of a very concerted sanctions program carried on for indefinite periods of time.

The escalation scenario can only be an invitation to mutual destruction, as you suggest, and would be a terrible precedent for the future in terms of how countries tried to strengthen their deterrent capabilities. Of course, we never know; history often plays games with our rational assessments, and it may be that there would be enough fear generated that nuclear disarmament would have a new lease of life. So then out of the darkness of this crisis could come the light of a new awakening to the dangers of nuclear weapons.

Nina: That’s a very positive outlook. I have not thought of that, but very important to put the message out there.

Professor Falk: To add, one of the tangible positive effects of the Cuban Missile Crisis was to create a mechanism for managing future international crises between the Soviet Union and the West. There was an effort to avoid miscalculations and accidental forms of confrontation, and that came because of this recognition that the world had come close to going over the nuclear test. And it’s not as far-fetched as it might sound at the moment to think that there would be some positive adjustments made after the smoke clears, so to speak.

Nina: Let’s hope so. The reason why I proposed that Russia and Putin might get away with being ‘unpunished’ for its crimes is because it seems to be, much like the US, their way of conducting their international affairs and furthering their geopolitical interests. For example, the 2008 war in Georgia and the annexation of Crimea in 2014. From the US standpoint, they’ve been wreaking havoc all around the world and there’s been little to no accountability. That’s why I am pessimistic that Russia would not see consequences for their actions.

But to move forward; Professor, since you have so much experience in these subjects, I wanted to ask what worries you the most in this whole story?

Professor Falk: Probably the excessively confrontational tactics of the West. I think there’s very little that can be done that isn’t being done to address the humanitarian catastrophe that faces the Ukrainian people. These catastrophes have occurred in the last twenty years in a variety of countries, and there’s been very little successful effort to address them in a humane way. Most that can be done is to contain them, and to convince the causative actors that their policies are failing. I think the sanctions have that potential impact. It’s a matter now of finding a political way that makes it attractive to Putin to adopt a more de-escalating set of options. And I hope the West will allow them to do that. See, you have to put into the equation that the West is not unhappy with this geopolitical confrontation. It wanted it for a variety of reasons, but in the US case, partly because Biden’s domestic program was being frustrated and only in foreign policy could he get enough political support to pursue an effective national policy based on a degree of unity.

Nina: Would you like to offer some concluding notes?

Professor Falk: I would only stress again the importance of distinguishing the geopolitical level of discourse from the international law level and from an understanding of the humanitarian tragedy. Those three levels are each very important, but they need to be understood and interpreted in relation to this situation. And what’s different about this crisis as compared to, let’s say, what was happening in Syria in the last decade and Iraq after 2003, is that its locus is in Europe, in a fairly substantial country. The West is still able to dominate the international political discourse and to control the controversies over legitimate and illegitimate behaviour. That’s a western, US-led form of geopolitical primacy. The Russians and the Chinese cannot do that. So, there is a sort of asymmetry at this level of geopolitics which is part of the difficulty of the period where the Chinese and Russians are trying to re-establish spheres of influence while the US is acting as if it’s a global state where the whole world is its own sphere of influence.

Nina: Professor Falk, thank you so much for blessing us with your opinions and knowledge.

Professor Falk: Good to be with you, Nina, and you made me think hard about these issues and I’m grateful for the experience and wish you well.

Nina: Thank you so much. Likewise.

[ISCI Intern Article]