Thoughts on the Crisis in Ukraine
Surprising as it may seem to some, the United States is the primary creator of public international law, although, as WWII co-victors, Russia, the UK, France and not-the-China-you’re-thinking-of also played some role.
For many years, the international legal realm expanded. Treaties on all kinds of things were written, signed and ratified, including on the prevention of torture, child protection, environmental issues, and, of course, trade. In particular, GATT, the General Agreement on Tariffs and Trade was finally transformed into the World Trade Organization and its agreements, a move that facilitated multilateral trade and created an international dispute settlement mechanism (a court to decide on trade disputes). Another major achievement was the creation of the International Criminal Court to try individuals for alleged crimes such as genocide, crimes against humanity and, of course, war crimes.
This was all hugely advantageous to the West, because as the most powerful group, they mainly set the rules. Although Russia and China were reluctant to get onboard with all of this, they did sluggishly come along. This, you would think is exactly what the West would want, everyone playing by the same rules. Our rules.
However, now we get to the part where things get very frustrating. After having gone to an enormous amount of trouble to create these rules, and having achieved hegemonic power to the extent that people freely admitted there was only one superpower (the USA) the USA started disregarding its own rules.
In fact, it started disregarding them fairly early on. In the 1980’s, the International Court of Justice (ICJ) rendered a judgement against the United States for its military involvement in Nicaragua. The USA ignored the judgement and withdrew its consent to the ICJ’s compulsory jurisdiction, in other words, it stopped recognizing the court’s right to make judgements over it. Not a great moment for the rule of law, really.
However, things got even rockier at the turn of the millennium. First, the US attacked Iraq and overthrew its government despite failing to get a Security Council resolution authorising the use of force and failing to convince pretty nearly anyone (except the UK) that Iraq posed a threat to international security. This was a flagrant disregard of international law and the international legal order that, let me remind you, the US was the driving force behind.
To make matters worse, once in Iraq, US and British forces committed many actions that could be considered crimes falling under the jurisdiction of the International Criminal Court (ICC). However, the idea that they could be called to account before this court was considered laughable (someone even made a satirical film about the trial of Tony Blair, then Prime Minister of the UK). At the same time, Africans were being pursued by the court left, right and center. Perhaps unsurprisingly, Africans began asking themselves if this ICC business was all really fair. This should have been a warning sign. And that warning sign should have started flashing the day South Africa refused to extradite Sudanese leader Omar al-Bashir to the ICC in 2015. Faith in the institutions that the West tried so hard to create, and through which it exercised its hegemonic influence on the rest of the world, was being undermined by its hypocrisy.
This was only one front of the problem, however. International trade deals were also beginning to show cracks. Trade negotiations were supposed to occur, as…well…negotiations. For a long, long while, the West prevailed here too, cracking and splitting opposition to get deals pushed through that didn’t necessarily enjoy a lot of international support. However, they could only ride that train so far. Eventually opposition from other countries coalesced to the point where negotiations stalled (the Doha Round of negotiations has been ongoing for over 20 years). Now at this point, Western countries and particularly the USA, could have decided that they had had a good run of getting their way and that they had finally reached a point where they’d have to give back a bit, perhaps even significantly, in order to keep on getting.
Or, they could do what they actually did, which was to largely abandon their own creation (a multilateral framework with a mechanism for settling disputes), and pursue bilateral and regional trade deals like TTIP instead. In their view, their ‘mistake’ had been to allow their opposition to congregate all in one place where they could form a bloc. So, they went back to negotiating one-on-one, which favours the more powerful even more. This is important, because one of the streams of thought behind multilateral organizations like the WTO is that by facilitating trade according to rules, it cuts down on states essentially feuding with each other over resources, something that can easily escalate into conflict. Neutral courts are supposed to apply the law (as agreed by States), rather than states just deciding when they feel like punishing each other. Thus, although the WTO was in many respects a corporate, neoliberal, aggressively globalist project, it did have some basic upsides.
And if all that wasn’t enough, of course, the big news is that no one even really cares what the United Nations thinks of anything anymore. This is a bit of a problem, as the failure of the League of Nations (the UN’s predecessor) to moderate the behaviour of major powers is seen as a key factor leading to WWII.
As we all know, the invasion of Iraq on what turned out to be false pretences was a disaster (not only in military terms, but also in terms of reputational damages), and this was followed by Libya, Yemen and Syria. In particular as regards Libya, Russia and the USA ascribed to wildly differing interpretations as to what the Security Council resolution authorized. This seems to have been the last straw for the Russian government on international cooperation. Following that came action in Syria, which resulted in a rather under-reported proxy-war between Russia and the West.
And that brings us to Ukraine, a simmering conflict that has been going on in parallel to these other events. Western powers, again particularly the US, tried to swallow Ukraine into their sphere of influence ca. 2014. That didn’t work. Enter stalemate and proxy activity in both parts of Ukraine.
Finally, over the last few days, Russia decided to do what was a long time coming – take the USA’s script and run with it.
The long reading of Russia’s version of Ukrainian-Russian history? That’s called staking a claim to territory. The protecting of ethnic minorities, recognizing a brand-new state and getting its government to invite you to protect them? That was the Kosovo logic with some of the steps in different order. Decapitating (possibly literally) your enemies within a state you are (possibly temporarily) occupying in order to make sure everyone’s a bit more on your side in future? That’s what happened in Iraq and Libya (although not with great results).
Two can play any game. Which is something the West (particularly the USA) really should have remembered all these years when it was in the driver’s seat. In fact, three can play, so just wait till China gets in on it. And then perhaps we can add space exploration and drones into the mix just to keep things interesting.
International institutions have never worked amazingly, and these are only a fraction of the problems they have experienced over the years. Nonetheless, following the Cold War, there was a clear opportunity to improve, something that would have ultimately benefitted not Russia or the USA the most, but weaker States that have to negotiate the world without strong legal protections.
In light of recent events, it is interesting to think where we were at just fifteen years ago. At that time, we were inhabiting something of a neoliberal wasteland intent on making a lot of money through globalization.
This is noteworthy when you consider that a lot of the issues around Ukraine concern the Nordstream II pipeline, a gas pipeline that runs from Russia to Germany. Right now, a lot of Russian gas runs through Ukraine, where Ukrainians take a cut of it for passing through their territory.
Gerhard Schroeder, the former German Chancellor who has spearheaded support for the Nordstream pipelines in Germany was nothing if not a child of neoliberalism. Useless tariffs and charges are exactly what neoliberalism and free trade aim to end. Thus, getting your gas direct without those charges is a simple globalist calculation. And this is how things were proceeding. The rich were getting richer, in the West, in Russia and in China. And the idea that we wouldn’t wage war with each other because we were all too busy making money was, if not exactly iron-cast, at least creeping along.
So, why could the West never quite get on one wave-length about its own institutions? A couple of factors may be relevant:
1) Arms manufacturers are a significant part of American business, so no wars translates to no money for them. Global peace governed through trade will not be profitable. Thus, this sector at least had little interest in improving international institutions.
2) Western business never forgot their glory days ravishing the post-Soviet economies and while not exactly hurting for money, have never been quite able to let go of the idea that Putin has personally injured and insulted them by putting a stop to the worst excesses in this regard. Thus, while certainly making a lot of money, many of them can’t seem to stop thinking about how much more money they could make if someone friendlier to their interests were in power. Russia As Enemy has thus remained a huge part of their foreign policy.
3) Non-Western business is now more competitive with Western business than it has ever been. Indeed, due to lesser regulation and being somewhat behind on health and safety and so forth, they have an edge. An even playing field in free trade would still benefit the very wealthy – but possibly not disproportionately the American very wealthy.
In this regard, it is worth noting how the entire Western conversation on Ukraine up to this point has turned around ‘sanctions’. Military incursions of a country require defence of that country, not sanctions, which are of questionable value to the people of that country. The sanction-obsession seems to indicate that the primary concern here is a business one.
There’s definitely a case to be made as to why any military escalation to defend Ukraine would be unwise, but then…that’s why we invented all of the aforementioned and now largely spurned diplomatic channels in the first place – to avoid military conflicts that in the age of nuclear, chemical and biological weapons had become self-defeating propositions.
This system also would have helped smaller and weaker states like Ukraine live more independently under a rule of law system with their own standing, rather than becoming little more than a prize that two superpowers are fighting to control.
To make a comparison: in the old pre-democracy, pre-rule-of-law days, most people did not have access to independent courts that recognized their rights on the basis of equality. So instead, many people had patrons – those who protected them in exchange for loyalty. This is where we are today with states and is what you are seeing unfold in Ukraine.
So, in closing, we had a relatively humane containment strategy for non-Western powers, our clever system of military, criminal and trade institutions and courts, that we were in a pretty good position to at least make a good go at foisting onto everyone else. But then we blew it, due to hypocrisy and being too greedy. If you don’t acknowledge and abide by your own institutions, who else is going to? Certainly not your frenemies, who were never half as invested in them in the first place.
Western journalists often make hyperbolic accusations against foreign powers, and sometimes completely false ones. This is really unfortunate, because we get bogged down in the details of sifting through the facts on these crazy accusations. This obscures the issue that there are still foreign powers and they have to be dealt with somehow. Perhaps China and Russia are not insane cesspits, home to unique evil, unknown in the pure West, but they are still enormous countries with considerable military power and they aren’t our country. They do have their own interests. A failure to be uniquely evil in unimaginable ways doesn’t make one uniquely good.
So, is this situation particularly dangerous? Well, aside from the fact that everyone in this equation has nuclear weapons (so…yes), it’s probably going to be the worst for all of those people located in ‘buffer’ regions which one side or the other will now attempt to more overtly control. Perhaps it will be best for developing countries far enough away to be non-aligned and play one superpower off another. Those countries are beginning to have options again, as they did during the Cold War (although considering there aren’t competing ideologies at play this time around, it will be interesting to see how this plays out).
At any rate, what we have seen is a loss (although not a complete one) for internationalists and for diplomacy, and a win for older nationalist conceptions of security, spheres of influence, etc. largely based on the ‘might is right’ strategy with some lip-service to principle thrown in.