‘There is no buffet-style international law.’ So says Dr. Thomas D. Grant, international lawyer and author of ‘Aggression against Ukraine’, a new book on the conflict from the perspective of a fundamental principle that has existed since World War Two. As Grant, ‘a lawyer by training and an academic by vocation’, puts it: ‘Post-1945, there is no title to territory through use of force.’
President Putin seems to think otherwise. For many, like Grant, Putin’s behaviour in Georgia, Crimea and, more recently, in Ukraine, constitutes nothing less than incursions into sovereign territories. The latter, in particular, represents the most serious challenge to the post-war order founded on international law.
The talk at JW3 was chaired by World Jewish Relief, a charity which, since 1933, has aided many Jews in need, especially in the former Soviet Union. The flouting of international law has, according to WJR, affected virtually the entire 44 million population of Ukraine, six million directly, with 2.3 million uprooted, 1.3 million internally displaced, and the best part of a million seeking refuge in neighbouring countries.
In a part of the world that has long historical association with the persecution of Jews, from the pogroms of the 19th and early 20th Centuries to the murderous Einsatzgruppen operations of World War Two, it’s no accident that there lurks within the nationalisms of both Ukraine and Russia an enduring anti-Semitism across a now uncertain border. There’s no doubt, too, that anti-Semitism itself is a useful tool for ideologues and non-ideologues alike. In the case of the recent conflict, the problems of Jews have been subsumed within a broader catastrophe. The question is how to frame that catastrophe with a view to resolving it.
Grant’s position is one that makes a clear distinction between international law as fundamental principle – the European and American view – and international law as an ‘epiphenomenon’ – Russia’s view. In other words, Russia sees international law not as principal cause but as effect and manifestation. Indeed, any realist would agree: what counts is what you can get away with. That basic geo-political unit known as the nation-state is a territorial entity founded on a monopoly on violence. In a jungle environment, the only law that counts is the one implemented by force and maintained by it.
Grant inevitably argues that the Russian Federation has got its law ‘badly wrong’ in deploying legal, human rights or historical justifications. But the more realist view of NATO suggests that Russia didn’t get its law wrong at all: it simply had, and has, a strategy of self-interest. Self-interest is, of course, a law unto itself. When in March Russia celebrated its first anniversary of the annexation of Crimea, it was also celebrating ‘maskirovka’, a strategy of, literally, ‘little masquerade’, which generates disinformation and deception, and uses false logic to create a narrative hall of mirrors in which everything is simultaneously true and not true. Who knows who starts the shooting on a daily basis in Donetsk or Luhansk? Who knows who shot down MH17? Who knows who was behind the massive cyber attack on Estonia in 2007? And, unsurprisingly, the incursion into Crimea was a typical act of ‘trompe l’oeil’-style misdirection: it arrived in the form of anonymous soldiers in unmarked helicopters while NATO’s attention was firmly focused on daily developments in Ukraine, something that Major General Gordon Davis, NATO’s deputy chief of staff of operations and intelligence, acknowledged earlier this year.
Events in Ukraine are therefore not quite the ‘stunning shift’ that Grant suggests. The continuum of history is a series of processes. From Russia’s point of view, the Founding Act or similar and related agreements for resolving the military and territorial issues between NATO and former Warsaw Pact countries is less about the finer points of international law than the exact direction in which real missiles are really pointing. For Russia, for the foreseeable future, the near abroad will continue to be the near abroad, and its perceived sphere of influence begins there.
The near abroad has a slightly different interpretation for refugees, who often end up in the near abroad indefinitely. For the Jews of Ukraine, numbering up to 70,000, there is always the possibility of ‘making Aliya’, the immigration or ‘ascent’ to Israel of diaspora Jews. In the early 1990s, many did ‘make Aliya’. More recently, according to WJR, 2000 Ukraine Jews have gone to Israel, with 5000 remaining in the conflict zone. There is little room for any civilians to manoeuvre. What would save them is territorial integrity. The argument for this integrity, underpinned by law, is also an argument for the vertical rather than the horizontal distribution of violence. Only nation-states fit the bill.
As such, international law is not a fundamental principle. It is just the sort of epiphenomenon that Russia perceives. The key difference is that it’s an effect worth fighting for. Just as democracy is a work in progress, so, too, is international law. For any practically-minded observer, this has less to do with concept than with quantifiable benefit. The work has to continue because international law is the best guarantor of the safety and well-being of whole civilian populations of whatever region, including Ukraine. Nation-states, with their monopolies on violence, still represent the more stable, consistent and accountable approach to doing business. The alternative, that we witness daily in territories whose borders are either uncontrollable or have disintegrated altogether, is economic chaos, slaughter, huge forced migrations, and the resultant humanitarian tragedy.
The Jews of Ukraine was part of the ongoing cultural programme at JW3, the Jewish Community Centre London. Thomas D.Grant’s Aggression against Ukraine (Palgrave, 2015) is available from amazon.co.uk.
Nick Barlay’s Scattered Ghosts: One Family’s Survival through War, Holocaust and Revolution is published by I.B.Tauris. For details of this and other works, see www.nickbarlay.com