By Andrew Roman
For the original version of this post by legal expert, Andrew Roman, see here.
For more analysis by Andrew Roman, check out his blog here: https://andrewromanviews.blog
If you ask the average person on the street in any Western democracy, chances are they will blame only Russian President Vladimir Putin for the war in Ukraine, now in its fourth month.
In this blog I’m asking readers to put conventional wisdom on hold, and consider why this war is happening, what could have been done to avoid it, and now, what could be done to end it sooner rather than later.
In every war governments on both sides must build and maintain public support for their war effort, through highly emotional propaganda. That’s why in every war the first casualty is always the truth.
Each side switches off its empathy for and understanding of the goals of the other. Once the good/evil glasses go on, the country can no longer see causes/effects, seeing only “us = good” and “the other = evil”. Then, neither side has to accept responsibility for their actions, because the war is the enemy’s fault. That reciprocal vilification describes the current Ukraine war messaging perfectly.
It may be too much to ask the combatants and their supporters to stop demonizing the other side and ask themselves “is there anything we have done, or not done, that could have helped to avoid this conflict?” It is usually only years after the war that some historians can look more objectively at the contributions of each of the parties to triggering the conflict, and what each might have done to reduce the risk of war.
There is nothing that can morally justify or excuse Vladimir Putin’s deadly military response to the impending further NATO expansion, but that expansion could explain why he did it. It’s possible to recognize Putin’s malevolence while also recognizing that the US, by repeatedly supporting NATO’s expansion eastwards, made it more likely that a Russian leader would, eventually, respond with force. Ukraine as a bridge has now been burned. It remains to be seen whether and how it can be rebuilt after this war ends.
Let’s start by looking at the messaging from both sides.
The Russian messaging
The Russian government’s messaging to its people has been unbelievable for anybody who’s not trapped in the Russian-controlled media bubble. It made no sense for Russia to tell the Ukrainian military to essentially overthrow their own government or lay down their arms because their country is governed by drug-addicted Nazis. Nor have these so-called Nazis been killing all the Russian-speaking residents of Ukraine in a genocide.
The professed purpose of the Russian so-called “special military operation” is to eliminate the neo-Nazi threat, to save the people of Ukraine – which Russia says is really not a separate country, but historically has always been a part of Russia.
Russian police will arrest anyone in Russia publicly protesting the invasion of Ukraine, and any Russian journalist who describes this invasion as anything but a special military rescue operation risks lengthy imprisonment.
The Western messaging
Most of the Western media has echoed US President Biden’s condemnation of Russian President Putin as a war criminal, without any such verdict in any international court. Putin is being called a fascist like Hitler, while he is also calling his enemies Nazis, so everyone is using the same messaging. Unlike Russia, Western democracies don’t have official government censorship, so dissenting opinions can be published. However, there is a sort of unofficial media censorship, which leads to self-censorship. Any journalist who says something that isn’t 100% anti-Putin risks being denounced as an unpatriotic ‘Putin apologist’. That may be why there has been so little Western discussion of what we could have done differently to avoid this war.
Two schools of thought
What limited debate I have seen in the Western media has been between two broad schools of thought, essentially, two different ways of looking at wars. These are what professor Stephen M. Walt (discussed below) has called Liberal Idealism and Realism. I have kept his labelling, but they would be better described as arguments about who is to blame for the war versus arguments about what caused the war.
Blaming someone is morally satisfying, but unhelpful in ending a conflict or avoiding the next one. But the blame game has dominated both Russian and Western political leaders’ statements. The Western media has largely ignored the so-called realists, which include many experienced diplomats and political advisors. A number of Western commentators have thought deeply about the causes of the Ukraine war and arrived at similar conclusions.
I start with the former US Secretary of State, Henry Kissinger, who got it right back in in 2014 in the Washington Post:
“Public discussion on Ukraine is all about confrontation. But do we know where we are going? In my life, I have seen four wars begun with great enthusiasm and public support, all of which we did not know how to end and from three of which we withdrew unilaterally. The test of policy is how it ends, not how it begins.
Far too often the Ukrainian issue is posed as a showdown: whether Ukraine joins the East or the West. But if Ukraine is to survive and thrive, it must not be either side’s outpost against the other — it should function as a bridge between them…..
For the West, the demonization of Vladimir Putin is not a policy; it is an alibi for the absence of one.
Leaders of all sides should return to examining outcomes, not compete in posturing.”
NATO was created for the containment of the old Soviet Union. Once that collapsed in 1991, arguably, NATO had no further purpose and should have been disbanded. But NATO continued and repeatedly expanded eastward, treating a smaller and weaker Russia as if it was still the much larger and more dangerous Soviet Union. Now, Ukraine’s potential acceptance into NATO is, for Russia, crossing a red line, because it could result in NATO troop movements and missiles on Russia’s borders.
Three months ago, at a speech at the Oxford Union, Sir John Sawyers, the UK’s former MI6 Chief, at 19 minutes in the linked video, retold Putin’s story about himself as a teenager cornering a rat in his Leningrad apartment building. The rat attacked young Putin and escaped. Sir John’s lesson from this story is never corner someone who is incredibly dangerous, somewhat irrational, with nuclear weapons at the end of his fingertips. NATO must leave Putin a way out of the corner.
In January, 2022, Stephen M. Walt, professor of international relations at Harvard University, wrote, in Foreign Policy:
“Liberal Illusions Caused the Ukraine Crisis
The greatest tragedy about Russia’s [then] potential invasion is how easily it could have been avoided….
Had the United States and its European allies not succumbed to hubris, wishful thinking, and liberal idealism and relied instead on realism’s core insights, the present crisis would not have occurred. Indeed, Russia would probably never have seized Crimea, and Ukraine would be safer today. The world is paying a high price for relying on a flawed theory of world politics.
At the most basic level, realism begins with the recognition that wars occur because there is no [single international] agency or central authority that can protect states from one another and stop them from fighting if they choose to do so. Given that war is always a possibility, states compete for power and sometimes use force to try to make themselves more secure or gain other advantages. ….
Liberalism [ Liberal idealism?] sees world politics differently. … It divides the world into “good states” (those that embody liberal values) and “bad states” (pretty much everyone else) and maintains that conflicts arise primarily from the aggressive impulses of autocrats, dictators, and other illiberal leaders. For liberals, the solution is to topple tyrants and spread democracy, markets, and institutions…
Had U.S. policymakers reflected on their own country’s history and geographic sensitivities, they would have understood how enlargement appeared to their Russian counterparts. … the United States has repeatedly declared the Western Hemisphere to be off-limits to other great powers and has threatened or used force on numerous occasions to make that declaration stick. Realism explains why great powers tend to be extremely sensitive to the security environment in their immediate neighborhoods, but the liberal architects of enlargement simply could not grasp this. It was a monumental failure of empathy with profound strategic consequences….”
Despite his criticism of “liberal illusions” Professor Walt provides a deservedly sharp criticism of Putin’s conduct, both against his domestic political opponents and in his international relations. Unlike the Cuban missile crisis under President Kennedy, when the risk of nuclear war was high, Ukraine is not currently a member of NATO and there were no NATO weapons or armies stationed on Ukrainian soil. Putin made a choice, but he was not compelled by events to make that choice.
“But Putin is not solely responsible for the ongoing crisis over Ukraine, and moral outrage over his actions or character is not a strategy. Nor are more and tougher sanctions likely to cause him to surrender to Western demands. ….. Great powers are never indifferent to the geostrategic forces arrayed on their borders, and Russia would care deeply about Ukraine’s political alignment even if someone else were in charge. U.S. and European unwillingness to accept this basic reality is a major reason the world is in this mess today.”
Walt is not alone in these views on the importance of realism. They are shared by many experienced ex-military and foreign policy experts, for example:
1. Professor John Mearsheimer, a distinguished US political science scholar with lengthy military experience, and a colleague of Professor Walt, has, since 2014, argued that the US is partly to blame for the crisis in Ukraine.
Mearsheimer is very worried about the risk of escalation because neither Russia nor Ukraine can afford to lose the war. But Mearsheimer doesn’t explain what winning or losing really means to either party. Russian propaganda could claim victory even if Russia withdrew from all but a small part of Ukraine that it has captured in 2014 and now. Ukraine could give up its unrealistic claim that Russia must withdraw to the pre-2014 boundaries and accept some loss of territory.
2. Jack Matlock, a retired US ambassador to Russia (and still sharp at age 94) was on the phone call between President Kennedy and President Khrushchev that resolved the Cuban Missile crisis. He agrees entirely with the analysis of Professor Mearsheimer, and also fears escalation.
As a former diplomat, Matlock was shocked by the lack of diplomacy when Biden publicly called Putin a war criminal and suggested that a Russian regime change is necessary (which White House staff quickly “corrected” by saying he didn’t really mean that). The name-calling wasn’t helpful in reducing tensions.
3. Ottawa University Professor Paul Robinson, in an April 8, 2022, article on The Philosophers Behind Putin, concluded:
“Denouncing others as “fascist” is to portray them as evil and nothing more. In Putin’s case, by doing so and backing it up with dubious historical analysis, we are able to reduce our differences with him to a moral issue. This permits us to ignore the geopolitical aspects of the conflict between Russia and the West – the aspects which actually feature most strongly in Putin’s rhetoric. We are able thereby to avoid having to address any contributions we may have made to our mutual problems. While this may be psychologically satisfying, it’s not an effective way of dealing with international politics.”
4. Fiona Hill, who has studied Putin for decades, has worked in both Republican and Democratic administrations. In a February 28, 2022, interview published in Politico, she said:
“I think there’s been a logical, methodical plan that goes back a very long way, at least to 2007 when he put the world, and certainly Europe, on notice that Moscow would not accept the further expansion of NATO. And then within a year in 2008 NATO gave an open door to Georgia and Ukraine. It absolutely goes back to that juncture.
Back then I was a national intelligence officer, and the National Intelligence Council was analyzing what Russia was likely to do in response to the NATO Open Door declaration. One of our assessments was that there was a real, genuine risk of some kind of preemptive Russian military action ….. We should have seriously addressed how we were going to deal with this potential outcome and our relations with Russia.”
Was the Russian invasion provoked?
Many journalists and politicians have repeatedly stated that the invasion was unprovoked. But, was it? That depends on what we consider provocation. Being provoked, like feeling threatened, is largely subjective. One cannot simply assert that someone was unprovoked without considering the person’s feelings and statements.
Consider a hypothetical situation in which a gang of well-armed men (analogous to NATO) are walking along one side of the street and one well armed man (analogous to Russia) is walking along the other side. Instead of just walking past each other, those well armed men cross the street and surround the lone man. If that lone man were you, would you not feel threatened? Some 30 US states have “stand your ground” laws that would permit you to attack an intruder in similar circumstances.
As early as December 2021, Putin begged, and even threatened Biden, to obtain a guarantee that Ukraine would remain a neutral buffer between NATO and Russia. On December 6, 2021, the Washington Post reported:
“The Kremlin has said it wants written guarantees from the United States and its allies in NATO that the military alliance will not expand east — both in terms of membership and Western forces.
Still, [a US] official suggested that a written guarantee from Washington that NATO will not expand to include Ukraine was a nonstarter, noting that the United States believes that every sovereign nation should have the right to make its own decisions about its security.”
As late as February 15, 2022, just nine days before the February 24 invasion, Aljazeera reported:
“Russia’s president says Western assurances Kyiv will not join NATO military alliance in the near future are unsatisfactory.
Russia has massed more than 100,000 troops around Ukraine’s borders and is campaigning for security guarantees from the West including a guarantee that Kyiv will be prevented from ever joining NATO’s ranks, despite Ukrainian President Volodymyr Zelenskyy pushing for it to do so.
“We need to resolve this question now … [and] we hope very much our concern will be heard by our partners and taken seriously,” Putin told reporters in Moscow.
“[And] As for war in Europe … about whether we want it or not? Of course not. That is why we put forward [written] proposals [in December 2021] for a negotiation process, the result of which should be an agreement on ensuring equal security for everyone, including our country,” he said.”
The US argument that “every sovereign nation should have the right to make its own decisions about its security” doesn’t work
1. It is applied only to others
Consider another (rather far-fetched) hypothetical situation, the mirror image of the current one. Canada and Mexico are both democratic countries and sovereign nations. What if both of them decided, through their democratically elected governments, to join a military alliance led by Russia? The treaty of this alliance would permit Russian troops and missiles to be stationed in Canada and Mexico, close to the US border. How would the US respond? Would it still be content to repeat the mantra that “every sovereign nation should have the right to make its own decisions about security”? Or does that right only exist if it threatens someone else?
In accordance with its long-standing Monroe Doctrine, the US would probably say that it would prohibit any of its neighbours, indeed anyone in the hemisphere, from joining a military alliance with any foreign, non-US-allied power, as that would be crossing a US red line. That’s what happened with the Russian missiles in Cuba, and Khrushchev quickly removed them.
The “rights” argument is a two-edged sword that cuts both ways. The US argument is that “every sovereign nation should have the right to make its own decisions about its security” without any limits. It follows that Russia and China, both sovereign nations, should also have the right to decide to invade a country that they believe will provide a base for foreign militaries that threatens their security. What’s good for the goose is good for the gander.
As Ukraine is being treated as a de facto member of NATO the lack of formal approval of membership is unimportant to Russia. NATO countries including Canada had been providing training and weapons to Ukraine to bolster its military strength.
2. It is irrelevant
The language of “should Ukraine have the right” is irrelevant because what matters is not what right someone thinks it should have but what right it does have.
The issue for Russia is not Ukraine’s rights regarding NATO. It is whether NATO should continue to expand eastwards, thereby removing Ukraine as a neutral buffer state between Russia and NATO. Russia has said for years that this crosses a red line and threatens its security. Does one nation or a group of them have the right to threaten the security of another?
3. It is based on a false analogy
Individuals in democracies have constitutional rights, like the US right to life, liberty and the pursuit of happiness. These rights are enforced by the courts, to control potential government overreach. To say that a nation has or ought to have “rights” is to use an analogy between an individual in a constitutional democracy and a country in a world of 195 countries. But nations are not individuals protected by any enforceable constitution. The 195 countries are not a single constitutional democracy and there is no judicial process to enforce a country’s right to security.
4. It is one-sided
A nation has no constitutional protection from violence from other nations. It can only try to repel invaders by military force, either alone or with allies. But to call that potential military capability a right is meaningless. Who enforced Afghanistan’s security rights against 20 years of invasion by the US, and earlier, by Russia? Or Vietnam’s, Syria’s or Iraq’s rights? Thomas Hobbes said it best in 1651 when he wrote that “Covenants, without the sword are but words … .”
Today, swords have been upgraded to missiles, some with nuclear warheads, but the reality remains the same. And that is why Russia is really in a proxy war against NATO. The Ukrainians are the territorial subject of the invasion but not the purpose of it. The real dispute is between the US-led and largely US-funded NATO, and Russia. This is a deadly and dangerous international tug of war in which Ukraine is the rope.
But what if the invasion was provoked?
If we accept that Russia felt threatened, and provoked by yet another NATO expansion right up to its border with Ukraine, that still does not mean that the extreme response of a military invasion was necessary.
As long as Ukraine was neither militarily strong enough nor inclined to attack Russia, and as long as there were no NATO troops doing more than training in Ukraine, the level of threat to Russia was not high, and not imminent.
Theoretically, the fighting in Ukraine could continue indefinitely so long as neither side wants to compromise to create peace. However, as NATO countries give Ukraine more and more powerful weapons, while Russia warns of this having unspecified dangerous consequences, the risk of escalation rises.
Once the parties to the conflict have bled enough, both literally and financially, some sort of compromise will eventually appear more attractive, allowing each to claim victory within its own propaganda bubble. The casualties and costs to both combatants are already escalating, while Ukraine cannot count on Western support indefinitely. Public attention is short. Media attention to the horrors in Ukraine has already been pushed aside by, among other headline stories, the US Supreme Court’s potential reversal of Roe v Wade, the defamation trial of a popular Hollywood actor and his ex-wife, and the school shootings in the US followed by the usual debates about gun control.
With Ukraine’s 50 percent unemployment and the inability to export its grain (because Russia controls its ports) Ukraine’s economy has been destroyed. Ukraine needs more than $7 billion a month to pay its bills. The US recently agreed to give Ukraine $40 billion, enough for several months, but how much longer will the US continue to pay these massive amounts without pressing Ukraine to engage in serious peace talks with Russia?
However, the sanctions are beginning to hurt the Russian economy, which cannot survive on oil and gas export sales alone, and are also creating scarcities of essential goods. Despite the Russian rhetoric about making Ukraine part of the greater Russia again, Russia may be content with keeping only the small but very valuable part of Ukraine that it has essentially captured, as long as the rest of Ukraine stays out of NATO. That captured area has great strategic and economic value for Russia, as I will describe in my next post.
Finland and Sweden have now sought membership in NATO in response to the Russian invasion. Countries which border on Russia, with long-term status as buffers, such as Finland and Ukraine will find their buffer status insecure and oppressive because their freedom to decide their futures is constrained by the imperative that they don’t upset the Russians.
The thirst for freedom, and the implied greater prosperity that brings, is a powerful force in countries that don’t have it. That’s what it’s all about for Ukraine.
At this time, with some as yet undetermined military outcome, any peace plan to avoid escalation is necessarily premature and speculative. However, a good example is the plan by two former top policymakers — one Russian, one American. Alexander Dynkin is served as an assistant to former Russian Prime Minister Evgeny Primakov. Thomas Graham, a distinguished fellow at the Council on Foreign Relations, was the senior director for Russia on the National Security Council staff during the George W. Bush administration. Rather than extend this already long blog post even further, here is a link to their plan, published in the February 9, 2022 issue of Politico.
Andrew Roman recently retired from a successful law practice spanning 45 years. He has practiced administrative law at all levels of court, including the Supreme Court of Canada, and has appeared in courts and administrative tribunals in all the Canadian provinces and territories. His practice has included advising and representing professional regulatory tribunals, both for the tribunals and for members subject to disciplinary proceedings.
Mr. Roman is the author of more than 90 publications, including reports, articles, monographs and a book. His writings have been cited in judgments of the Supreme Court of Canada. He has taught administrative law and advocacy as an adjunct faculty member at four law schools.