Lay Down Your Arms - Archive

Did Russia’s invasion violate international law? Part I

2023-10-05 09:22 English
Part I
Introduction
The UN Charter has always been interpreted by different parties tailored to their own interests. Russia occupies now, in conflict with the Ukraine Government, up to one fifth of Ukraine territory, and the Western world has strongly condemned Russia for being in breach with international law, while the United States from 2015 and in conflict with the Syrian Government has occupied up to one third of Syria, but in this case, there has been no Western criticism of the U.S. violation of international law.
The United Nations Security Council
Israel has from 1967 occupied even larger parts of Palestinian territory, but no Western country has entered the conflict by giving the Palestinians massive military support. Nobody has seriously questioned the Israelis right to occupy the land of others. There is quite clear that international law has been used as a political instrument tailored to certain interests. As we discuss Russia’s invasion of Ukraine and whether it violates international law, we must ask: what interests lie behind one argument or the other? We need to look at both Customary International Law and the exact wording of the UN Charter, and we have to look at the different interpretations. We also have to look at what we consider to be morally acceptable, which is not necessarily the same as “legal” according to international law. This article will look at the Russian interpretation of the conflict and try to find out which interpretation is more in harmony with the international law and the UN Charter.
Any war, also defensive wars, are brutal, and thousands and in the Ukraine case hundreds of thousands of people are killed on the battlefield. It is difficult to justify such a brutality despite the fact that these actions may be legal according to the UN Charter. We have to discuss both the brutality of a specific war and the intentions behind this war. Benjamin Ferencz, prosecutor at the Nuremberg trials, said: “A crime against peace [a war of aggression] is itself the worst of all crimes”. It is no doubt about the seriousness of these crimes, but who is responsible? To what extent are, for example, such aggressions – these “breaches of the peace” – a “vengeance” for earlier crimes? And to what extent have these acts of war been launched after one part has been “pushed into a corner”? International law is supposed to handle these difficulties, but to be clear: vengeance cannot be “our goal”, as Ferencz said.
In the United States, many scholars have supported a “broad” definition of international law, partly because the United States is a nuclear power that has “legitimate interests” different from those of smaller states, such as being able to protect its own strategic nuclear weapons, but also because the United States, on several occasions, wanted to justify military interventions that can hardly be said to have been in accordance with the UN Charter. When it comes to Russia’s invasion of Ukraine, however, the U.S. has preferred a “narrow” definition in order to undermine Russian legitimacy. Russia, on the other hand, has chosen to consciously make use of American arguments that the United States has more or less successfully used in the past. Many Europeans, however, have often chosen a “narrow” interpretation of international law, while their political leaders may have endorsed a “broader”, definition, when it suits them, but not when it comes to Russia. What we can say today is that there is no consensus. We have to look at each individual military operation to determine whether it is in violation of international law or not.
International law contains an “absolute prohibition against invading other states. Equally absolute is the prohibition against threatening with the use of force,” says Norwegian scholar of international law professor Geir Ulfstein. In Europe, many people see this as unproblematic. But what if the second prohibition conflicts with the first one? Nuclear weapons are certainly a threat to the other side irrespective of where they are deployed, and nuclear deterrence would thereby be a violation of the UN Charter. The UN General Assembly has condemned nuclear weapons as “illegal”. Each state is supposed to defend its own territory, not guarantee its security by threats against the other. However, none of the great powers are willing to give up its nuclear capability, and in the U.S. nuclear deterrence has been developed into a sophisticated hierarchy of threats supposed to provide security to the United States. Although these threats would strictly speaking be illegal under international law, we can at least reduce the immediate threat to the other state and reduce the “threats to the peace” by avoiding forward deployments, deployments of weapons at close range to the other side. Such deployments are threatening – and often intended to be threatening. These weapons may even be considered an “existential threat” to the other great power. The latter state may then be faced with an overwhelming threat, a choice of whether to attack first – to attack preemptively – or to give up any possibility to defend itself.
From 1949, Norway’s policy for its border county to Soviet Union (Finnmark), and Norway’s nuclear weapons policy and base policy show that Norway was fully aware of this challenge. U.S. forces in northern Norway and U.S. bases in Norway would be perceived as a direct threat to the Soviet strategic military bases on the Kola Peninsula. In case of a tense situation, that would increase the risk of a Russian preemptive strike on Norway (to preempt the Americans). The Nordic countries have therefore historically speaking taken this problem very seriously. They established a “neutral” buffer zone or “zone of low-tension” between East and West. However, as of 2022, Finland and Sweden have chosen to abandon their neutrality and after a Parliamentary decision in June 2022, Norway have effectively accepted four U.S. bases in Norway (three air bases and one naval base). In this way, the Nordic countries have abandoned their traditional policy of détente. This is a radical break with Nordic policy since World War II.
When Russia on 17 December 2021 proposed similar “Nordic” restrictions for its neighbors in the West with neutrality for Ukraine and with something of “Norwegian” restrictions on nuclear weapons and foreign bases for Poland and other Central European states, Norway’s former prime minister, current Secretary General of NATO, Jens Stoltenberg, did not even want to discuss the matter. Professor Jeffrey Sachs at the Columbia University contacted the White House and said “there will be war unless the U.S. enters diplomatic talks with President Putin over this question of NATO enlargement. I was told the U.S. will never do that. That is off the table. And […] now, we have a war that’s extraordinarily dangerous.” “The United States rejected all diplomacy”. It is a “remarkable hubris”, Sachs said. The security of one state cannot be established at the expense of the security of others. But Jens Stoltenberg said that any country is free to join NATO and free to decide on the weapons these countries want on their territory.
In other words, we are talking about two very different views on European security, and that is essentially what the current war in Ukraine is all about.
First, let's look at the first lines of the UN Charter. Chapter 1 (Article 1) begins with:
“The purposes of the United Nations are: (1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; (2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; [... Article 2. The UN] shall act in accordance with the following Principles. […] (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”.
The UN Charter speaks of maintaining “international peace”, “removal of threats to the peace”, of “breaches of the peace”, and to “develop friendly relations among nations”. Every nation should refrain from both the “threat” of force and the “use of force” against the other, but every nation has also the right of “individual and collective self-defense if an armed attack occurs […] until the Security Council has taken measures necessary” (Art. 51). The UN Charter here speaks in general terms, and one may argue for different interpretations. But the language of the Charter points to the importance of “maintaining peace”. It is not only about protecting the sovereignty of each state but also about refraining from threats and actions that threaten other states. Modern weapons systems, however, particularly nuclear weapons, must also be taken into account. For the foreseeable future, we have to accept the role of nuclear deterrence as a threat against other states and accordingly as a violation of the UN Charter, but we can reduce the immediate threat and the impact of such violations by avoiding forward and thereby provocative deployments.
President Putin addresses the nation after Russia’s recognition of the Republics of Donetsk and Lugansk (Video: teleSUR)
An explanation of the Russian invasion
The starting point for many people in the West is that with its invasion, Russia has tried and still is trying to conquer Ukraine. They say that the war is a war Russia itself is responsible for, “a war of choice”, to quote U.S. Chairman of the Joint Chiefs of Staff Mark Milley. Vladimir Putin, on the other hand, describes the war as “existential”. In Russia, Western weapons in Ukraine close to Moscow are perceived as an “existential threat”, that might necessitate an attack in “self-defense”, in the same way that the Soviet missiles in Cuba were perceived by the U.S. in 1962.
But U.S. intelligence has also said that this Russian claim is sincere. Director of U.S. Defense Intelligence Agency (DIA) Lieutenant General Vincent Stewart told Congress (December 2015): “The Kremlin is convinced that United States is laying the groundwork for regime change in Russia. The conviction further re-enforced by the events in Ukraine. Moscow views the United States as the critical driver behind the crisis in Ukraine and believes that the overthrow of the former Ukrainian President Viktor Yanukovych is the latest move in a long-established pattern of U.S. orchestrated regime change efforts.” (Congressional Report, quoted by Ray McGovern, 2023). Putin’s understanding of the threat as “existential” was not challenged by the DIA.
Moscow’s perceptions are decisive for why Russia entered Ukraine with force. Russian territory has not changed in any essential way since the 18th century. Russia has not expanded its territory very different from the United States that expanded its territory with more than one third in the 19th century. Russian experience of invading Western armies from the time of Charles XII in the 18th century, Napoleon in the 19th century and Adolf Hitler and the Nazis in the 20th century have been formative to the Russian understanding of the West. The Russian leaders are convinced that this policy of expansionism is still dominating in the West under the façade of liberalism and international law illustrated by Operation Unthinkable that after the victory over the Nazis made Western leaders mobilize in 1945 in an attempt to eliminate the Soviet Union. This expansionism is also illustrated by U.S. Secretary of Defense (later Vice President) Richard Cheney’s push in 1991 not only for the breakup the Soviet Union but also for the breakup of Russia as a state as told by former CIA Director Robert Gates in 2016. The Russian leaders are convinced that the U.S. policy for Ukraine from 2008 (offering NATO membership) with the events in 2014 and with a military buildup from 2016 is not primarily about Ukraine but is preparations for an attack on the Russian state. In Russia, Vladimir Putin has been criticized for acting too late. The war in Ukraine is considered to be an existential war, also by Putin. But how do we know if this “existential war” isn’t launched also with the intention to “conquer” Ukrainian territory? Is this war just an attack in “self-defense”? Here we must ask ourselves whether there are objective criteria for determining what is correct.
We know how much military force is considered necessary to occupy a foreign country. The Russians have certainly no illusion about the Ukrainian-speaking population of Western Ukraine and their historical antipathies towards Russians. We also know that Russia entered Ukraine with 170-180 thousand men in total (Mark Milley) including logistics personnel. The United States reported 130 thousand troops (CNN) in February 2022, while an attempt to occupy Ukraine would require a many times larger force. According to Western military theory, an occupation would require at least one man per 50 inhabitants. With the Ukraine population at the time of 44 million, this would demand a force of close to a million soldiers, that is, more than 5-8 times the force that Russia had used to enter Ukraine on 24 February 2022. But Russia would almost certainly choose to be on the safe side. When Moscow occupied Czechoslovakia in 1968, they used a force that was more than 10 times as large per capita. And when Nazi Germany occupied Norway there was for a long time a German force of more than 300,000 men, about one man per every 10 Norwegian. If Russia had had the intension of conquering Ukraine, it would most likely have entered with a force at least ten times as large or with 1.5-2 million men.
That an occupation would have required such a large force was something the Russian military planners would know. Also, the current Russian leaders have experience of the 1980s. Moscow's attempts to control countries such as Poland and Afghanistan proved impossible. From purely objective criteria, we can say that the Russian force entering Ukraine in no way had the capacity to conquer that country. Moreover, the experience of the Russian leadership hardly indicates that it was interested in such a conquest. The Russian force, however, had possibly the capacity to protect eastern Ukraine, the Russian-speaking Donetsk and Lugansk, from an attack by Kyiv. At least that may have been the intent. Kyiv began massive artillery fire attacking these areas in mid-February, OSCE’s figures show. A West-Ukrainian attack on Donbass had been prepared for, for several years. In February 2022, one could imagine that tens of thousands of Russians and Russian-speakers would be killed in the impending attack, which I will return to below.
This requires an explanation. There are many claims that Russia had deployed forces in eastern Ukraine, in the Donbass in 2014. The former NATO representative Jacques Baud writes: “A resolution adopted by the European Parliament in September 2014 talked about a ‘direct military intervention’, a violation of the ceasefire ‘by primarily regular Russian troops’, and that Russia had ‘strong military presence on Ukrainian territory’. This was obviously false: the accusations came from the Polish intelligence service, but they were never confirmed by OSCE observers.” President Petro Poroshenko claimed that Russia had entered Ukraine with “200,000 men”, but no Russian troops were ever observed. In January 2015, the Chief of the General Staff of Ukraine, General Viktor Muzhenko, confirmed “that there were no Russian troops in Ukraine and that only some Russian volunteers had been observed. His claim was confirmed in October 2015 by General Vasyl Hrytsak, head of the Ukraine Security Service (SBU), who said that since the start of fighting in eastern Ukraine, only 56 Russian soldiers had been observed. [...] The OSCE had not made any observations confirming Russian troops in Ukraine.” There was only one satellite image showing Russian weapons, “4 howitzers”, but they came from a Ukrainian battalion that had defected to the rebels in Donetsk and Lugansk, Baud writes (2022).
In 2014, Vladimir Putin had agreed to give some Russian support to Donetsk and Lugansk, but he had rejected the two republics’ requests for a Russian intervention to protect them. Claims in the west that Russian troops had then invaded Ukraine were pure propaganda. Putin had given Donetsk and Lugansk the cold shoulder. At the time, Ukraine did not have a professional army. If Russia had wanted to conquer Ukraine, Russia could have done so, and now both U.S. Army officials and Ukrainian Army representatives agree to that (see below). Instead, Putin accepted the Minsk Agreement recognizing eastern Ukraine as part of the State of Ukraine, despite the pleas for protection that the Donetsk and Lugansk republics had directed to him. Unlike some Russian generals and much of the population of eastern Ukraine, Putin wanted eastern Ukraine to continue to be part of the State of Ukraine. Putin did not go in with Russian forces despite that Kyiv was killing thousands of Russians or Russian-speakers in eastern Ukraine. Putin had no ambition to conquer Ukraine, not even the Russian-speaking eastern Ukraine. Putin hoped that the significant Russian-speaking population in the east would be able to neutralize Ukrainian extremism in the west. The Russian-speakers were not a small minority. They had won the 2010 presidential election with Viktor Yanukovych (who was from Donetsk) and in 2019 Volodymyr Zelensky was elected president with support from Russians after promising a peaceful solution for eastern Ukraine in accordance with the Minsk Agreement. Vladimir Putin’s support for the Minsk Agreement definitely disproves the claim that he wanted to conquer or occupy Ukraine.
On February 24, on the day of the invasion, Putin said in his speech: “It is not our plan to occupy the Ukrainian territory”. Nor was there anything in Putin’s speech to suggest that he intended to or had an interest in occupying Ukraine. Such claims are part of the propaganda campaign – propaganda that now dominates Western media. Russia initially tried to encircle Kyiv to force the leadership to accept negotiations and to tie up large Ukrainian forces to facilitate fighting in the east. The Russians also knew it would be difficult to attack the fortified Ukrainian forces from the east. For several years, Ukraine built fortifications that went through the two eastern republics and from January 2022 they had deployed 120,000 troops ready to capture Donetsk and Lugansk. Russia also knew that they would have to attack from the north and from the south, but they most likely underestimated Ukraine’s war preparations and the U.S. support. The U.S. could follow everything from satellite. In February 2022, this made the Ukraine forces better prepared for a Russian invasion than the Russian soldiers were themselves. Ukraine let the Russians go in close to Kyiv and then they ambushed them. But the superior Russian firepower forced Ukraine to retreat in several areas. Following progress in negotiations in March 2022, the Russian side said it would leave the area around Kiev as a “gesture of goodwill”, which it did. The Russians tried to avoid losses. Nothing suggested that Russia at the time was interested in occupying these territories. Rather, the Russians wanted to guarantee the security of Donetsk and Lugansk.
But if the Russian invasion wasn’t about the conquest of Ukraine, a reconquest of the Russian Empire or of the Soviet Union, we have to ask what it was that triggered the Russian invasion.
Washington Summit 1 June 1990 with President Mikhail Gorbachev, President George H.W. Bush and State Secretary James Baker (Photo: George H.W. Bush Presidential Library).
The Russian experience of NATO enlargement
We now know that in 1990-93 all the U.S., West German, French and British political leaders (Bush and Baker, Kohl, Genscher and Wörner, Mitterrand and Thatcher, Major and Hurd) gave definitive promises to Mikhail Gorbachev and to Boris Yeltsin not to expand NATO west of West Germany. The U.S. President Reagan had already before George H.W. Bush took office agreed to treat the Soviets as equals and with respect. We should not act as a winner of the Cold War, the U.S. Ambassador to Moscow Jack Matlock said. Matlock had outlined the policy agenda in 1985 for President Reagan, and Matlock participated in the Baker-Gorbachev talks.
The U.S. State Secretary James Baker said: “neither the President [Bush] nor I intend to extract any unilateral advantages from the processes that are taking place.” And he said: “If we maintain a presence in a Germany that is a part of NATO, there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east”. Mikhail Gorbachev added: ‘Certainly any extension of the zone of NATO would be unacceptable”, and it “goes without saying that a broadening of the NATO zone is not acceptable”, he said. Baker responded: “We agree with that”. Baker wrote the following day to German Chancellor Kohl and said: “By implication, NATO in its current zone might be acceptable”. Kohl told Gorbachev that “NATO should not expand the sphere of its activity.” President Mitterrand wanted to abolish both the Warsaw Pact and NATO, but Helmut Kohl’s Foreign Minister Hans-Dietrich Genscher said: “We do not want to extend NATO territory, but we do not want to leave NATO”. That is what they all told Gorbachev.
Genscher said the same day to the UK Foreign Minister Douglas Hurd: “Poland should not be able leave the Warsaw Pact to then join NATO. ‘The Russians must have some assurances’”. “We do not want to expand to the east”, he said. Baker repeated Genscher’s words. NATO would not expand: “not an inch of NATO’s present military jurisdiction will spread in an eastern direction”. This was a prerequisite for a German-German unification, for the Soviet withdrawal of 350,000 men from East Germany and finally to dissolve the Warsaw Pact in 1991. In March 1991, when the Poles spoke about NATO membership, British Prime Minister John Major said to Gorbachev and to the Soviet Defence Minister Dmitry Yazov: “Nothing of that sort will happen”. There will not be any membership for these countries. NATO General Secretary Manfred Wörner said in July 1991: “We should not allow […] the isolation of the USSR from the European Community,” and “Wörner stressed that the NATO Council and he are against the expansion of NATO (13 of 16 NATO members support this point of view).” Already in May 1990, he said in a speech published by NATO:
The very fact that we are ready not to deploy NATO troops beyond the territory of the Federal Republic gives the Soviet Union firm security guarantees.
When Boris Yeltsin had been able to outmaneuver Mikhail Gorbachev in December 1991, the U.S. got a Russian leader, who was indebted to the Americans (CIA intelligence had supported Yeltsin in the Russian power struggle in 1991 with President Bush’s approval). But Yeltsin was still against any NATO enlargement. He claimed in 1993 that the German unification treaty precluded NATO expansion. For President Yeltsin, a NATO enlargement would only lead to “humiliation”. President Bill Clinton said in 1995: “I won’t support any change that undermines Russia’s security or redivides Europe”. But the decision about NATO enlargement had been taken already in 1993. A declassified Russian document from 1995 says that NATO expansion would (1) threaten Russian security, (2) undermine the idea of an inclusive European security that Gorbachev and Yeltsin both sought, and (3) draw a new line across Europe.
The father of NATO Containment Strategy, Ambassador George Kennan, described the U.S. proposal for NATO enlargement as a mistake of “epic proportions” (1996), “the most fateful error of U.S. policy” (1997). U.S. Defense Secretary William Perry (1994-97) “opposed” the expansion. It was humiliating for Russia, and Perry added in 2017: “The reason Putin is so popular in Russia today is that he has allowed Russia to stand up as a great power to get over this humiliation”. Even then-CIA Director Robert Gates (1991-93; and later secretary of defense), said in year 2000 that he was worried about the consequences of “pressing ahead with expansion of NATO eastward, when Gorbachev and others were led to believe that wouldn’t happen”.
Recent books and articles have stated that no promises to Gorbachev were ever made. Former U.S. Ambassador to Ukraine Steven Pifer claimed in 2014 in an article for Brookings Institution that Gorbachev, in an interview, had said that there had been no promises to him and that the “topic of ‘NATO expansion’ was not discussed at all”. Baker’s “Not one inch” was all about expanding NATO eastwards to East Germany, Pifer said, but Pifer quote does not give us the true picture. Gorbachev says a couple of lines further down in the same interview:
The decision for the U.S. and its allies to expand NATO into the east was decisively made in 1993. I called this a big mistake from the very beginning. It was definitely a violation of the spirit of the statements and assurances made to us in 1990.
Similar, the Yale historian Mary Elise Sarotte claimed that Genscher and Baker had “speculated” in not moving NATO eastwards “thinking it might make German unification more tolerable to Moscow”. But what Baker, Genscher and other leaders thought doesn’t matter. What matters is what they told Gorbachev, and their promises are well documented by minutes of meetings and in other records in the National Security Archive in Washington. Sarotte says: “by the end of February [1990 … President Bush] insisted that the Secretary of State [Baker] cease using such phrasing [‘Not one inch’]”, but Bush as well as Baker still spoke about a pan-European process and a “European home” that would presuppose a Europe where NATO did not expand eastwards to divide Europe. One document (6 March 1991) shows how all four Western powers agreed that NATO membership for the Central European states would be “unacceptable”: “We made it clear during the 2+4 negotiations that we would not extend NATO beyond the Elbe. We could not, therefore, offer membership of NATO to Poland and the others”, the document states. The US representative Raymond Seitz confirmed during this meeting that the West made it clear to the Soviets: “NATO should neither formally nor informally expand towards the East”.
The document was found in 2022 by the Wilson Center historian Joshua Shifrinson in the British National Archives. In an article in International Security in 2016, he showed how Baker spoke about not expanding NATO and about pan-European institutions, while U.S. National Security Advisor Brent Scowcroft asked Bush (already in December 1989) to ensure “that a reunified Germany maintained its ties to NATO” while facilitating “a much more robust and a constructive U.S. role in the center of Europe”. The U.S. should place itself “between Germany and Russia in central Europe”. The U.S. should expand NATO into Poland and the others, while Baker was telling Gorbachev the opposite. Baker also told Gorbachev that the CSCE (from 1995 OSCE) was “an important cornerstone of the new Europe”, while he privately cautioned Scowcroft and Bush saying that the “real risk to NATO is CSCE”. President Bush appeared as a two-faced Janus, collaborating closely with Gorbachev on a tactical level while actually forcing the Soviets to retreat on a strategic level. Bush showed respect for Gorbachev and Gorbachev expressed his sincere trust in Bush, while the CIA with Bush’s approval supported Boris Yeltsin in his power struggle against Gorbachev. Bush’s promises were nothing but deception. Shifrinson concludes “that the United States exploited Soviet weaknesses despite presenting a cooperative façade”, particularly to Gorbachev. This “cooperative façade” was what was left-over from Matlock’s policy agenda for President Reagan. The Bush Administration convinced Gorbachev by putting forward a number of oral commitments, while they had no intention to live up to these commitments.
We might argue that there is no Treaty per se other than in the case of the German-German unification (formally the Treaty on the Final Settlement with Respect to Germany; otherwise known as the 2+4 Agreement, signed in Moscow 12 September 1990), but this Treaty states:
“Following the completion of the withdrawal of the Soviet armed forces from [East Germany. … Foreign] armed forces and nuclear weapons or their carriers will not be stationed in that part of Germany or deployed there”.
The Treaty states clearly that it should not be any forces from other NATO countries in the former East Germany, and obviously Moscow would then never accept any deployment of such forces further east, east for Germany in “Poland and the others”. That was out of the question, and there was seemingly a consensus among all participants. Accordingly, the “topic of NATO expansion was “not discussed”, as Gorbachev said in 2014, because there was no disagreement.
In 1993, Boris Yeltsin said that the “spirit” of the Treaty “precludes the option of expanding the NATO zone into the East”, and the oral commitments given to Gorbachev by the Western leaders in 1990-91 would have made him believe that there was a consensus, and equally important: documented oral commitments between state leaders are also legally binding.
Soviet Secretary General Nikita Khrushchev and President John F. Kennedy in Vienna 1961 (Photo: John F. Kennedy Presidential Library).
At the very core of the issue discussed above is the legal role of oral or verbal commitments. During the Cuban Missile Crisis, President John F. Kennedy’s agreement with the Soviet leader Nikita Khrushchev was an oral agreement. The Soviets accepted to withdraw its missiles from Cuba if the U.S. withdraw its missiles from Turkey (and Italy). Such oral agreements between political leaders are considered legally binding. The UN “definition of key terms” states:
On the one hand, [the 1969 Vienna Convention on the Law of Treaties] defines treaties as “international agreements” […]. On the other hand, it employs the term “international agreements” for instruments, which do not meet its definition of “treaty”. Its Art. 3 refers also to “international agreements not in written form”. Although such oral agreements may be rare, they can have the same binding force as treaties, depending on the intention of the parties. An example of an oral agreement might be a promise made by the Minister of Foreign Affairs of one State to his counterpart of another State.
Several authors refer to “the East Greenland Case”. The minutes of Norway’s Foreign Minister Nils Claus Ihlen in 1919 says that he informed his Danish counterpart that the Norwegian Government would not object to Danish sovereignty over Eastern Greenland [“Not make any difficulties in the settlement of this question”]. Ihlen’s written note about his oral promise convinced the Permanent Court of International Justice in 1933 (14 years later) that this oral statement was binding for Norway (Norway had to cede a territory larger than Norway itself). The International Court of Justice states that, “despite the exclusion of tacit agreements from the scope of its codification of the law of treaties, it ‘ha[d] no intentions of denying the legal force of oral agreements being in conformity with international law’”. Under “customary international law oral agreements are no less binding [than a formal treaty] although their terms may not be readily susceptible of proof.” The United States Senate writes in “Treaties and other International Agreements”, January 2001:
[The Vienna] Convention definition of a treaty does not include oral agreements (Article 2) although according to the convention, its definition shall not affect the legal force of such agreements (Article 3(a)). […] whether a statement is made orally or in writing makes no essential difference. […] Under customary international law, oral agreements are just as binding as written ones (Prepared for the Committee of Foreign Relations).
This would mean that the subsequent NATO expansion into Poland and into other Central-European states in 1999 and further in 2004 was legally speaking a “breach of the peace”, a violation of international law. Countries in Central Europe, of course, had the right to express their interest in joining NATO after many years of Soviet dominance, but NATO would also have to think about the consequences of accepting new members, and to Moscow, a NATO enlargement to the east would definitely appear to be “an aggressive act”, a territorial expansion of the U.S. military forces at the expense of Russia and in violation of international law. But would this “violation” of international law give Russia the legal right to intervene in “self-defense” to prevent the U.S. territorial expansion? In 1962, Khrushchev and Kennedy kept their part of the deal and if Khrushchev hadn’t done that, it would very likely have been a war. In the 1990s, however, after Russia withdrew its forces from East Germany, the U.S. started to enlarge NATO refusing to keep the U.S.’s promise. Does this mean that Moscow has the formal right to move hundreds of thousands of troops back into Central Europe? Would that be a proportionate Russian response?
The legal entities of the UN Charter are “sovereign states”. The Charter states in Article 2(4) that states shall refrain from “the threat” of force or “use of force against the territorial integrity” or “independence of any state”. And NATO expansion has definitely been perceived as threatening to Russia. Russia protested already from the mid-1990s against Western proposals for NATO expansion into Central Europe. I myself warned of the consequences in the journal Security Dialogue in 1995. I also listened to Russian Foreign Minister Yevgeny Primakov’s criticism of the Western breaches of promises during his lecture in Oslo in 1997. Primakov had from 1996 collected a number of Western assurances saying that if NATO went along with its eastward’s expansion, this would be in breach with the “spirit” of the German unification Treaty. It would be a threat to Russian security. Europe would slide into confrontation. Russia protested strongly, not least when the first pool of countries was included in 1999 and when the second pool was admitted in 2004. It doesn’t matter what we think as long as Russia consider NATO as a threat.
In 2008, according to the then US Ambassador to Moscow, current CIA Director William Burns, all actors in Russia, not just Vladimir Putin, said NATO membership for Ukraine was a “red line”. German Chancellor Angela Merkel said: “I was very sure […] that Putin is not going to just let that happen. From his perspective, an expansion of NATO to Ukraine would be ‘a declaration of war’”. To bring in Ukraine in NATO was totally unacceptable: “The brightest of all red lines”, as Burns wrote to his Secretary of State Condoleezza Rice. In a telegram to Washington with the headline “Nyet Means Nyet: Russia’s NATO Enlargement Red Lines”, ambassador Burns wrote in 2008 that Foreign Minister Sergey Lavrov saw NATO enlargement to Ukraine as a “potential military threat”. Russians said that it would open for a Ukrainian civil war between east and west and a possible Russian intervention to save the Russian speaking population in the east. It would “leave the US and Russia in a classic confrontational posture”, he said. The Washington elite knew that Ukrainian access to NATO almost certainly would lead to war. It had nothing to do with who was in charge in Moscow. When Putin now talks about the war as “existential”, it’s because Ukraine is about to become a U.S. military bridgehead reaching almost to Moscow. The U.S. would now be able to strike at the “heart of Russia”. It is like the south-eastern United States with Texas, Louisiana, Florida, Georgia, Mississippi, and Alabama had become independent states fully armed by Russia. Washington would never accept it.
Country after country has now gained NATO membership and U.S. military installations. The U.S. said for many years that NATO enlargement was not directed against Russia. At the same time, the U.S. moved its positions step by step, all closer to Moscow with new weapons systems. If this process continues, it would hardly be possible for Russia to defend itself. A single step cannot legitimize a military response, but in sum it signifies a radical geopolitical shift. It is a “salami tactic” similar to the Israeli one, which with any new settlement conquers more and more of Palestinian territory until there is no more Palestinian land left. It is also parallel to the U.S. strategy towards China. The U.S. says it recognizes China’s “One-China policy”, but at the same time, it allows U.S. top officials to visit Taiwan and they welcome Taiwan’s president into the U.S. as if Taiwan was an independent state. One takes small steps until one has reached a fait accompli. This must be seen as a definite break with the UN Charter’s objectives of maintaining “international peace and security” and of the “removal of threats to the peace”. For Russia, it became necessary to create a kind of “buffer zone”, which would reduce the risk that Russia one day would have to strike preemptively, in “self-defense”, to protect its vital interests.
On 17 December 2021, Russia called for negotiations, to get the U.S. to withdraw its forward deployed weapons installations and bases from Central Europe, from the new NATO-member states, and to get guarantees for Ukraine’s neutrality, thus establishing a form of “Nordic buffer zone” through Central Europe. This would reduce the threat to Moscow and reduce the risk of a conflict escalation and thus removing the “threats to the peace”. This had been Gorbachev's proposal from 1988 with a neutral Poland, Czechoslovakia, and Hungary, a European “neutral buffer zone” similar to the Nordic one. Gorbachev was influenced by Giorgio Arbatov and the Palme Commission, and he was thinking in terms of a zone of low tension between the major nuclear powers to limit the risks of pre-emptive strikes. The Americans, however, were thinking in terms of “deterrence”, not just on the strategic level but also on a local tactical level. They would prefer threatening deployments close to the Russian border to “deter the Russians from any adventures”. A RAND Report, “Enhancing Deterrence and Defense on NATO’s Northern Flank” (2020), suggests deployment of Western missiles with a range of 900 km to give Norway a “deterrent” capability. But that could provoke a pre-emptive strike. Western military planners know full well that Russia would not be able to defend itself if Western forces were deployed in Ukraine close to Moscow. For Russia, it is not about “conquering Ukrainian territory” but about denying the West a forward military presence, a bridgehead close to Russia’s most vital interests. There is thus a direct parallel to the Cuban missile crisis when the U.S. leaders believed that Soviet nuclear weapons had been deployed far too closely to U.S. vital interests.
Let us here bring up some examples from U.S. security policy history and legal history, from crises and wars (the Cuban Missile Crisis 1962, the Kosovo War 1999, the Iraq War 2003, and the Libya War 2011) that the Russian side now has made use of or will be able to make use of. And let's begin with US President John F. Kennedy’s words about the Soviet missiles in Cuba in his speech on 22 October 1962, which is definitely a parallel to the present situation.
The Soviet submarine B-59 during the Cuban Missile Crisis 1962 (Photo: National Security Archive).
When the Soviet Union began deploying missiles in Cuba, this was stopped by the United States through an act of war, a blockade. The United States attacked Soviet vessels. The U.S. military leadership also believed that it was fully entitled to carry out a full-scale military attack on Cuba. This was stopped by President Kennedy. Moscow gave in and withdrew its missiles from Cuba after Kennedy had approached Moscow and promised the removal of U.S. missiles from Turkey.
At that time, there was room for a certain pragmatism. A Russian retreat was achieved. But what is unequivocal is that the U.S. perceived the Soviet missiles in Cuba as a definitive “threat to peace” (UN Charter Art. 1). This “threat” was interpreted as “an armed attack”, which came to legitimize a U.S. attack in “self-defense” against Cuba and the Soviet Union (despite the fact that the U.S. did not then explicitly refer to UN Charter Art. 51), or to quote John F Kennedy:
Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change of their deployment may well be regarded as a definite threat to peace.
According to U.S. lawyers, threatening weapons deployments near U.S. territory gave the United States the right to use force in “self-defense” in accordance with Art. 51 of the UN Charter, including outside U.S. own territory. Kennedy argued that such an attack in “self-defense” against the threatening party was legitimate and in accordance with international law because a threatening deployment of weapons was contrary to the spirit of the UN Charter: a “threat to the peace” (Art. 1). It was an existential threat to the U.S. This, in turn, paved the way for the doctrine of “pre-emptive self-defense” (Murphy 2005). In the era of nuclear weapons, according to Kennedy, international law must not only consider “the actual firing of weapons” but also provocative weapons deployments as a “threat to the peace” and a violation of international law. The UN Charter’s prohibition (Art. 2.4) against the use of a “threat” against “any state” can, according to Kennedy, take precedence (primacy) over a prohibition of “the use of force” (including an invasion), if these two prohibitions are in conflict with each other.
However, such wording can obviously also be misused. One state could argue that another state is “a threat to the peace” to justify an attack. Rather, what is of vital importance is to respect the other’s fundamental requirements for security. The Soviet Union should have respected the U.S. requirements for the security, while the U.S. should have respected Russian requirements for the security by not enlarging NATO. Individual states should have the right to deploy weapons or accept any alliance affiliation, but not if they directly threaten a neighboring state. The security of an individual state cannot be established at the expense of the security of another state. This was stressed by the Palme Commission on “Common Security” in 1982 and by the OSCE “Charter of Paris for a New Europe”, a document signed by all the relevant states (1990). Europe should develop “without dividing lines” (NATO-Russia Founding Act 1997). “The Charter of Paris” writes: “Security is indivisible, and the security of every participating State is inseparably linked to that of all the others. We therefore pledge to co-operate in strengthening confidence and security among us and in promoting arms control and disarmament.” Every country has the “freedom of choice”, the Charter states, but not the freedom of choosing an alliance affiliation or weapons deployment that threatens the peace and security of another state.
The claim that the offensive Soviet weapons in Cuba were “a definitive threat to peace” emanated from a “broader” definition of international law. This should apply to Russia today to an even higher degree than to the United States in 1962, firstly because the distance from Ukraine to Moscow is only one-third of the distance from Cuba to Washington, and secondly because the weapons are now faster and more precise than in 1962. The distance from Ukraine to Moscow is certainly too short for Russia to be able to defend itself. Threatening deployments are therefore as serious as any invasion. They are accordingly “acts of aggression” (Art. 1).
A “narrow” definition of international law that reduces the UN Charter to a ban on invading other countries, places the entire blame on Russia for its attack on Ukraine, while a “broader” interpretation gives Russia the right to “self-defense”, a right to deny U.S. deployments of weapons systems in Ukraine, weapons that could be described as a “threat to the peace”. We may argue that this interpretation is right or wrong, but according to a school of international law, this interpretation is legitimate. There is no consensus within the interpretation of international law.
A common European view is that a violation of international law occurs when an aggressor fire weapons across a border or tanks and troops cross that border. This is a “red line”. There is a prohibition against invading others, but “equally absolute is the prohibition against threatening with the use of force” (Ulfstein 2022). The UN Charter Art. 24 (1) states that “Members confer on the Security Council primary responsibility for the maintenance of international peace and security”. But if the threatening party, as in this case, can use its veto in the Security Council, the threatened party would have to act on its own and, if possible, obtain approval from the Security Council at a later stage. We are faced with a dilemma, of which the Cuban Missile Crisis is an example. If one state’s alliance affiliation threatens a neighbor or if weapons deployments of this state threaten this neighbor’s capital, the threatened party will be faced with the choice of risking being knocked out by a devastating attack or strike preemptively on its own.
The first part and second part of the sentence in Article 1(1) and in Article 2(4) are here in conflict with each other, and the more serious the threat from a threatening state is and the closer this threat is placed in relation to the capital and the vital interests of the other, the stronger are the arguments for letting the first part of the sentence (“the threat” of force) take precedence over the second part (the actual “use of force”). If, for example, such a conflict concerns nuclear-armed powers, this does not just become a matter between these powers. This was President Kennedy’s conclusion at the Cuban Missile Crisis.
Let's take a closer look at what happened during the Cuban Missile Crisis on October 27, 1962. Soviet submarines had at the time permission to launch a nuclear torpedo if attacked. When the Soviet submarine B-59 was hunted by four U.S. aircraft and 14 American Naval vessels (incl. an aircraft carrier) and was attacked with grenades and depth charges, the captain of the submarine, Valentin Savitsky, assumed that the war with the United States had already started. He gave orders to prepare for the launch of a nuclear torpedo. But one of B-59’s highest-ranking officers, Vasily Arkhipov, convinced Savitsky that they would be able to survive without the use of force (see National Security Archive). If Arkhipov, on the other hand, had arrived at a different conclusion, the US response would have been to strike back with nuclear weapons. But at the time, there was only one plan in response to a hostile nuclear attack, SIOP-62 (Single Integrated Operational Plan): a full-scale nuclear attack against the Soviet Union and China. It would have killed up to estimated 285 million people in one night (according to the National Security Archive). After some time, the radioactivity would kill many more, even in other countries.
The United States was never forced to respond to a nuclear attack, but what constitutes “a threat to the peace” and thus a violation of the UN Charter cannot, in such cases, in the case of nuclear-armed powers, be reduced to a question of whether someone has crossed a border into another state. The doctrine of “preemptive self-defense” is an expression of this. This does not mean that we should accept this doctrine, but a European “narrow” definition of international law does not consider the seriousness of the threat to peace inherent in modern weapons systems. One must weigh one side against the other, and we must recognize that a military build-up near the capital of the other major power could be fatal to that power. One cannot let one side deploy nuclear weapons near the very center of the other side. That would be an unbearable threat, much more serious than some tanks crossing the border in a peripheral part of that country. In December 2021, President Putin said that U.S. “Mk 41 launchers” already exist in Romania and soon in Poland. They can fire missiles that will reach Moscow in 10 and 9 minutes, while the missiles from Cuba in 1962 would have reached Washington in 12 minutes (Ray McGovern, 2023).
Today, many people say that nuclear weapons and other weapons of mass destruction are only meant for deterrence and that “everyone” knows that they are not going to be launched because the destruction would be too serious for both sides. But if we presuppose that nuclear weapons are never going to be launched, they will have no deterrent effect. It is the very uncertainty of their use that gives them a deterrent effect. And the more one argues that they will never be used, the more likely it is that they actually will be used. It is this paradox that has been characteristic of nuclear deterrence. The new Western elite that has had its politically formative years after the Cold War during the crisis of Rwanda and Bosnia discusses what happens in Ukraine as if these weapons did not exist. They have started to use long range weaponry in Ukraine, claiming that Putin’s “red lines” are just a bluff. In a debate between the International Relations scholar John Mearsheimer, the Swedish former Prime Minister and Foreign Minister Carl Bildt said that the Western countries should not give in for “nuclear blackmail”. This is serious. Yeltsin’s and Putin’s former presidential advisor, Sergey Karaganov argued in June 2023 that the Western states are playing a dangerous game: “The fear of atomic escalation must be restored. Otherwise, humanity is doomed,” he says. If the West continues to escalate the conflict, we may have to go for a “nuclear strike [not in Ukraine, but] in countries directly supporting the Kiev regime […] to prevent a slide into a global thermonuclear war”. He argues that the West has to be reminded of its own vulnerability.
Left: State Secretary Colin Powell showing a model vial of anthrax during his presentation before the United Nations Security Council 5 February 2003, where he claimed to have proof for Iraqi chemical and biological weapons. Right: Under Secretary of State Victoria Nuland appeared before the Senate Foreign Relations Committee questioned by Sen. Marco Rubio (R-FL) on 8 March 2022, where she claimed that “Ukraine has biological research facilities [that should not fall] into the hands of Russian forces”.
Weapons of mass destruction in violation of International Law: Iraq and Ukraine
We have several examples where weapons deployments have been described as a violation of international law in order to legitimize a military operation. A more dubious case is the U.S. claim in 2003 that Iraq had biological and chemical weapons, weapons of mass destruction, which, according to President George W. Bush, were a “threat to the peace”. His words show that he intended to give legitimacy to the coming war against Iraq in the UN Charter.
According to him, these Iraqi weapons would give the United States the right to disarm Iraq, because such weapons could be brought to the United States and destroy that country or any country. Now it turned out that Iraq had no weapons of mass destruction whatsoever. The United States went on bombing and destroying Iraq killing hundreds of thousands of people without there being any basis for the US claims. But while Iraq did not have weapons of mass destruction, Ukraine did.
There is no dispute that Ukraine, before February 2022, had dozens of biolaboratories. The U.S. Department of Defense (DoD, 2022) confirmed U.S. funding of up to 46 such labs in Ukraine. The disagreement concerns whether these labs were military or civilian. But they were funded by DoD (by Defense Threat Reduction Agency) and several labs were studying more or less deadly viruses and bacteria like cholera, tularemia, plague, anthrax, Congo-Crimean fever, and African Swine fever. The Odessa lab had supposedly 654 containers of anthrax and 422 containers of cholera. In 2020, Kazakh Deputy Defense Minister Amirbek Togusov described corresponding US-Kazakh laboratories as “dual use” (military-civilian). Documents showed that US civilians and military officers ran these projects. They were “removed from national control and operate in a secret regime”. They were “veiled military bases born in response to the ban on biological weapons and bypassing the biological weapons convention”, he said. The Prime Minister of Ukraine until 2014, Mykola Azarov, said that Ukrainian authorities, as in Kazakhstan, were denied access: “these were labs of the American military”. The 2014 coup was a direct response to the Ukraine Government’s attempt to close these laboratories in 2013, Azarov claimed.
11 US Department of Defense (DoD) financed laboratories as presented by the Bulgarian journalist Dilyana Gaytandzhieva at Arms Watch 2019. DoD later confirmed that they had financed not 11 but 46 biological laboratories, and these laboratories had, according to US Under Secretary of State Victoria Nuland, such military significance that they should absolutely not fall “into the hands of Russian forces”.
As of April 2023, Russian authorities claim to have found a total of 240 pathogens (more or less lethal types of bacteria or viruses) that Ukraine and U.S. experts have studied or developed in these laboratories. On March 11, 2022, shortly after the war had started, U.S. Under Secretary of State Victoria Nuland told Congress under oath: “Ukraine has biological research facilities which in fact we are now quite concerned Russian troops, Russian forces, may be seeking to gain control of. So, we are working with the Ukrainians on how they can prevent any of those research materials [bacteria and viruses] from falling into the hands of Russian forces should they approach.” This is an American confirmation. These viruses and bacteria were not only funded by the U.S. military. They were also more or less lethal, highly classified biological materials of vital military significance. They must thus be defined as biological weapons.
The Americans were also interested in biological weapons that could be genetically modified to attack specific genotypes (Russians or Chinese), i.e., they wanted to develop specific viruses to be able to take out specific groups of people, as described in a document of the Project for the New American Century (year 2000) with Victoria Nuland’s husband Robert Kagan. From 2005-10, but even more from 2020, there was something of an archipelago of virological laboratories in Ukraine, Kazakhstan, and Georgia. Some labs were also experimenting with “carriers” (birds, insects, and drones) to be used for spreading these viruses to other countries. Russia faced a significant “military-virological complex”, about which Russia knew little more than that it stored a wide range of biological weapons. Drawing a parallel to the U.S. argument on weapons of mass destruction prior to the Iraq War, this would give Russia the “right to disarm” Ukraine.
There are two obvious reasons for why the U.S. has deployed such biological laboratories in Ukraine, Kazakhstan, and Georgia near the borders of Russia, and in Thailand, Laos, and Vietnam near the borders of China. Firstly, it enables the U.S. to experiment on humans and study dangerous viruses and bacteria that for safety reasons would be difficult to handle in the U.S. or Europe. One has supposedly also used the population for lethal experiments in these countries. Secondly, by deploying laboratories in countries bordering Russia and China, it will facilitate the U.S. use of biological weapons against its enemies. There is suspicion, for example, that the U.S. has used biological weapons to attack Chinese pig farms as a part of its economic warfare. Such warfare has from the 1990s been proposed by Robert Kadlec, biological weapons advisor for the U.S. Special Forces, and later for U.S. Secretary of Defense, and for the Senate Intelligence Committee. To deploy weapons of mass destruction in such a way at the border of the adversary is, to quote President Kennedy, “a definite threat to peace”. If one accepts only a “narrow” definition of international law, this is a matter of provocations, not a violation of international law. However, if we apply a “broader” interpretation with “threats to the peace” as a violation, it turns out that the U.S. argument on weapons of mass destruction was not valid for Iraq in 2003, because no such weapons were ever found in that country after the disarmament took place in the 1990s, but that the argument on the other hand is valid for Ukraine and thus would legitimize a Russian invasion of Ukraine and justify Russia’s ambition to disarm Ukraine.
It is also doubtful that the U.S. would be able to justify the right to “self-defense” by disarming a country because of weapons of mass destruction when that country is located on the other side of the globe. When it comes to nuclear deterrence, we accept that such weapons are deployed in such a manner. But there is no consensus when it comes to forward deployments, and Kennedy argued that these deployments were “a definite threat to peace”, and accordingly a violation of the UN Charter. When, in this case, biological weapons are found stored near the border to Russia, this could, if we follow Kennedy’s definition of “self-defense”, give Russia the right to use force against Ukraine and the right to disarm Ukraine.
Unlike the US invasion of Iraq, the Russian invasion of Ukraine could thus be defended as legitimate. One could say that any military attack is in itself a violation of international law, but if it is done in self-defense to prevent a “definitive threat to peace”, this would, according to Kennedy, mean that it is legitimate even under the UN Charter. This does not make the war more bearable. And the moral justification of this war is perhaps primarily determined by the malice and seriousness of the U.S. “military-virological complex” and by the seriousness of the threats posed by a U.S. military presence in Ukraine and Central Europe. From this point of view, the war is not about Western provocations that had triggered the Russian invasion as a “violation of international law”, but rather about the U.S. and Ukraine’s “violation of international law” that have prompted Russia to use force in “self-defense”, perhaps in accordance with the UN Charter.

Click here to continue on to Part II...