Editors Note: Nicholas Rostow is Senior Partner, Zumpano, Patricios & Popok, PLLC, New York, [Zumpano, Patricios, FL], Visiting Professor of Law, Cornell Law School, and Senior Research Scholar, Yale Law School. He served as Legal Adviser to the National Security Council, 1987-93, and Senior Policy Adviser and General Counsel to the U.S. Ambassador to the United Nations, 2001-05.
Do we want a world in which the possession of nuclear weapons grants a license to commit aggression? Do we want a world where only formal allies of the United States may feel safe from aggression (if in fact they may)? Do we want a world in which great power conveys legal impunity with respect to war crimes and other crimes under international law? These are among the high stakes raised by Russia’s invasion of Ukraine.
The stakes are strategic, legal, and moral.
The strategic and legal stakes overlap. They implicate the fundamental values of the international community and therefore give a moral meaning to the issues involved. By invading a charter member of the United Nations for the second time in less than a decade—Ukraine became a UN member in 1945 as part of the price the Soviet Union exacted for joining the new global organization and became a truly independent state only after the Soviet Union collapsed—Russia challenged the international order. As President Putin made clear in his speech explaining the invasion, he has never accepted Ukraine as an independent state. That refusal, whatever its justification, does not change the international and legal character of Ukraine. It is the same as Kuwait’s, which Iraq tried to annex by force on August 1, 1990.
It is in fact the same as the United States’ or Russia’s. Just as Iraq’s invasion of Kuwait assaulted the most fundamental norms of international behavior, so too did Russia’s 2022 and 2014 invasions of Ukraine. The whole world understands this reality to be a fact. Why this understanding?
At issue in Ukraine is more than tyranny and democracy. The most fundamental rules of the UN Charter are the sovereign equality of states and the prohibition on the threat or use of force against the territorial integrity or political independence of any state. Russia has violated each of these rules. It has done so by rejecting the idea that Ukraine is a state and therefore justifying its seizure of Ukraine’s territory—Crimea and areas of Eastern Ukraine. It has engaged in unmistakable armed attacks against Ukraine that gives Ukraine the right to use force in individual or collective self-defense. Russia’s attacks threaten Ukraine’s neighbors because they had been part of the Soviet Union or Soviet allies. They worry that they are next on Putin’s list of former parts of the Soviet empire that need to be recovered. They also have become hosts to millions of Ukrainian refugees and provide military and non-military support to that non-state Ukraine.
Putin has expressed a belief that Russia has the right to use military force to ensure rights for ethnic Russians in other countries. The obvious targets are the Baltic States. Their citizenry includes substantial numbers of ethnic Russians. In each of these actions and assertions, Putin has followed the path charted by Adolf Hitler in the 1930s. Like Hitler, Putin has acted without provocation of any kind that would justify the threats and actions Russia has employed. Western—principally U.S.—clumsiness, chiefly with regard to NATO expansion, over the past three decades does not amount to armed or other attacks on Russia such that it has a right to use force against other states. Certainly, Ukraine’s political vicissitudes did not and do not justify the present situation.
Russia has not just violated the UN Charter; it has violated a solemn undertaking by Putin’s predecessor as Russia’s President. On December 5, 1994, Presidents Clinton and Yeltsin and Prime Minister Major signed a document in Budapest (the Budapest Memorandum) in exchange for which Ukraine gave up its nuclear weapons, which the Soviet Union had stationed in its territory. The Budapest Memorandum contained crucially important pledges. These included reaffirmation of the UN Charter’s prohibition on the use or threat of force and promises to respect Ukraine’s then existing boundaries, which included Crimea and the Donbass region. The leaders of Britain, Russia, and the United States promised to ensure that the UN Security Council acted on behalf of Ukraine if it should be threatened or attacked with nuclear weapons. Russia, not only has shredded its commitment not to threaten or use force against Ukraine, but also has torn up its promise not to threaten the use of nuclear weapons against Ukraine or states that come to its aid.
In his first speech on the invasion, Putin said, “No matter who tries to stand in our way or all the more so create threats for our country and our people, they must know that Russia will respond immediately, and the consequences will be such as you have never seen in your entire history. No matter how the events unfold, we are ready. All the necessary decisions in this regard have been taken. I hope that my words will be heard.” Governments understood that this statement, followed by an order to place Russian nuclear forces on alert, constituted a threat to use nuclear weapons against, particularly, a NATO intervention on behalf of Ukraine. Russia thus has used nuclear weapons to try to shield its aggression against Ukraine from a confrontation with non-Ukrainian armed forces. As of early April 2022, they had succeeded. Yet, contrary to the conventional wisdom, Ukraine has not only fought Russia but fought with substantial success. Nevertheless, NATO’s unwillingness directly to force Russian forces to retreat to Russia reveals and is understood to reveal the extent of Russia’s success in shielding its forces from such collective countering force as ejected the Iraqi army from Kuwait in 1991.
No one should contemplate nuclear war with equanimity. Equally, caving to nuclear blackmail does not bode well for the future. And does nothing to help ease Ukraine’s suffering or hasten the day when war criminals face justice. Would Ukraine’s suffering touch us more than Ethiopia’s or the Uighurs’ or others’ too numerous to list if Ukraine were not the victim of aggression? Almost certainly not. It is aggression that sets the Ukraine situation apart from human rights violations within states. Horrific as human rights violations are, intolerable as impunity for such violations is, they raise different issues from those systemic challenges of the sort Russia’s invasion of Ukraine represents. If Putin succeeds, one must ask oneself if international law, including international human rights law, has a future. Nothing less is at stake.
Franklin Roosevelt said that the only thing to fear is fear itself. He was right. Equally, no one should forget Winston Churchill’s conclusion about hydrogen bombs and the threat they posed to the future of the world, “Never flinch, never weary, never despair.”
These words must gird NATO to help repel Russia’s unprovoked invasion of Ukraine. The foreseeable consequences of failing to do so are dire indeed.
