USA & NATO vs Russia in Ukraine: Washington''s Geopolitical War IX

 

In 1941 the US froze Japanese economic assets and squeezed its oil supplies in an effort to prevent it from undertaking further territorial expansion. In the event, these acts of deterrence were spectacularly counter-productive and led to Japan launching its surprise attack on Pearl Harbour.

Forty years later the Iraqi president Saddam Hussein faced a somewhat similar choice: either to give up his territorial ambitions in Kuwait or launch a surprise invasion, which was to have predictably disastrous results for himself and Iraq.

These two gigantic gambles have a common feature in that by any rational calculation they were probably going to fail, but they still happened, propelled by hubris, misinformation and the perpetrators’ belief that they could not retreat.

Much the same cataclysmic misjudgment took place on 24 February when Vladimir Putin invaded Ukraine, having convinced himself that his recently modernised army would face little political and military resistance. He soon learned how wrong he was, but Japanese, Iraqi and Russian leaders are not alone in overplaying their hand when they believe that they hold winning cards.

Brimming with overconfidence after Putin’s failures, Washington, London and Kyiv are now in the process of switching places with Moscow when it comes to expectations of military victory, though nobody seems to know what would constitute a victory. Would this mean Russia returning to pre-February lines, its total eviction from Ukraine or regime change in Moscow?

NATO politicians and media are in full 1914 mode as they report a succession of Russian humiliations. These upbeat reports are at odds with the caution of top American intelligence officials speaking in Washington this week about the future course of the war. Their wariness was in sharp contrast to the cavalier approach of politicians and media pundits welcoming a wider war. The director of national intelligence, Avril Haines, told politicians that Putin is preparing for a prolonged conflict in Ukraine and has not abandoned his original goals, though he will have to escalate the war to achieve them.

“The current trend increases the likelihood that President Putin will turn to more drastic means, including imposing martial law, reorientating industrial production or potentially escalatory military action… as the conflict drags on or he perceives that Russia is losing in Ukraine,” Haines said.

American intelligence chiefs are largely aware of reports from Russia suggesting that elements of the army and security services do not blame Putin for going to war, but they do blame him for not waging a total war.

As far as I know, Russia’s military believes that limiting the war’s initial goals is a serious error. They now argue that Russia is not fighting Ukraine, but Nato. Senior officers have therefore concluded that the Western alliance is fighting all out (through the supply of increasingly sophisticated weaponry) while its own forces demand all-out war, including mobilisation.

These may be only hints of what is going on in the Russian elite, but they do lend support to one largely ignored but conceivable outcomes of Putin’s failure as a warlord. Putsches usually succeed because they are unexpected. If a putsche against him did occur it would well be carried out by those who claim to be more capable of waging war than Putin and not by some pro-Western figure willing to make peace.

One should not rule out a fully mobilised Russia putting 800,000 soldiers into the field instead of the inadequate 150,000 or so with which it tried to conquer Ukraine. A key feature of Russian failure has been lack of infantry.

Those who erroneously consider bellicose rhetoric about regime change in Moscow or permanently weakening Russia, may consider that Putin will only authorise the use of nuclear weapons if he perceived an existential threat to the Russian state.

“Mission creep” from a policy of defending Ukraine to one of defeating Russia has been going on since the beginning of the war, but lately it has become more of Washington’s  “mission gallop”. Europe’s and USA’s media and the public are blithe about this happening or are urging on the shift towards direct military action to take place at an even faster pace.

Arms-limitation treaties, once lauded for averting the risk of nuclear war, are discarded as if they were irrelevant museum pieces. Dominic Cummings, the former chief adviser to Boris Johnson, skewers this reversal in goals by governments, media and pundits who previously denounced as a Putin apologist anybody taking seriously the Kremlin’s claim that the United States and Nato are using Ukraine to destroy Russian power. But three months on, disbelieving in this second policy objective shows again that “you are a Putin apologist”.

Remembering Pearl Harbour, one must bear in mind that one of the golden rules of politics: given that nuclear issues aren’t taken seriously never assume anything [else] is. The reverse applies and it is frightening that two governments of sloganeers such as British and American with such a record of blundering should be deciding issues of nuclear peace and war.

In expanding their war aims, the US and the Nato powers are doing Ukrainians no favours, but they are dooming them to living in an arena where outside powers fight each other over issues that have nothing to do with Ukraine. This was the fate of Yugoslavia and Syria after 2011, producing endless war and turning half the population into refugees.

The bloody stalemate in Syria could be ignored by the rest of the world because in the eyes of Americans and Europeans Syrian lives don’t really matter, do they? However, the same is not true of Ukraine because of it is an European country in a strategic position and as vital supplier of foodstuffs and raw materials. Nato would be unlikely to allow the continuation of the Russian blockade of Ukraine’s Black Sea ports. Russia would be likely to make attacks on western Ukraine to impede the flow of Nato weapons and supplies. Military escalation will inevitably have a momentum of its own.

The international atmosphere today is close to 1914 with nations on the march, but without having much idea what they are marching towards. During the Great War more than a century ago, decisions affecting the lives of tens of millions of people were taken by nincompoops like Kaiser Wilhelm II and Tsar Nicholas II, but are we are much better off with leaders as feeble as Joe Biden or as frivolous as Boris Johnson?

I was fascinated to discover that there is strong evidence that HIV/Aids was first transmitted from chimpanzees to humans during the First World War, far earlier than I had imagined. According to this excellent radio documentary, it happened in about 1916 in the rain forest of south east Cameroon as a bizarre consequence of the First World War.

Cameroon had been a German colony which was conquered by the allies using locally raised African troops as infantry. These soldiers, unlike the officers who got a litre of wine a day in addition to other foodstuffs, were ill-fed and had to hunt their own food – what would now be called bushmeat. This meant shooting with their rifles infected chimpanzees, whom local people had left alone because they are dangerous to hunt with bows and arrows and spears.

But the butchering of the chimpanzees appears to have led one soldier from the Congo becoming infected with HIV/Aids and taking it home to the Kinshasa where it became endemic, though it took half a century or more for the virus to spread to the rest of the world.

The story is interesting in itself and I had never heard it before. But it is also a sort of parable about the unintended but deadly consequences of the chaos of war. This is one of the points of my main piece about the unpredictability of the conflict in Ukraine. Of course, the First World War also produced the Spanish flu pandemic which first spread through US army training camps where raw recruits from the countryside without immunity were crammed together.

The illness was quite unfairly called “Spanish” flu because the Spanish, in contrast to the combatants in the war, did not censor accounts of its lethal impact on their country. HIV/Aids is estimated to have killed 30 million people during the epidemic, compared to 15 million killed by Covid-19.

News from Ukraine tends to be either over-covered or under-covered by the media. The over-covered news is mostly propaganda; even the truth is usually selective and it is impossible for the public to know if some skirmish is typical or atypical of the way the war is going. Does a Ukrainian success here or a Russian retreat mean one side or the other is winning or is there a stalemate?

Due to bias and censorship, crucial news about the war is often lacking – such as what the Russian security elite are thinking about Putin’s performance as a war leader – simply because reliable information is difficult to obtain.

But some important facts about the war are concealed simply because they are lost in the great torrent of information that pours out of Ukraine and its neighbours and the propaganda itself, that comes from Kiev and Washington officials.

As to the press, nobody takes the time and patience to sample it all and detect the nuggets amid the repetitious and the dross.

It is a pity. If not shameful and dangerous. Very dangerous, indeed. 

Mean/while, the Biden administration wants to sell off the yachts, homes and other luxury assets it has seized from Russian oligarchs and use those proceeds to support reparations for Ukraine.

As part of his proposal for the latest aid package to Ukraine, President Joe Biden is asking lawmakers for the authority to formally confiscate the assets of sanctioned oligarchs to pay to “remedy the harm Russia caused … and help build Ukraine.” The House has already passed a bill urging Biden to sell the assets, but it didn’t specifically give him the authority to do so.

Others have encouraged the administration to sell off the tens of billions of dollars in Russian central bank assets it has frozen. It’s not clear from the White House statement whether Biden plans to go after state-owned assets too.

That he has gone to Congress to get permission indicates that his lawyers believe, as do I, that current law permits only freezing, and not selling, foreign property in the course of an international crisis.

I’ve studied and practiced international law for several decades and advised the departments of State and Defense on issues like this one. The idea of forcing Russia to pay reparations for the harm to Ukraine has obvious appeal. But the U.S. needs to comply with constitutional and international law when it does so.

You might ask what the difference is between seizing or freezing property – forbidding anyone to dispose of or use an asset or take income from it – and confiscating it.

Freezing destroys the economic benefits of ownership. But the owner at least retains the hope that, when the conflict is over and the freeze order ends, the property – or its equivalent in money – will return. Confiscation means selling off the property and giving the proceeds, along with any cash seized, to a designated beneficiary – in this case, people acting on behalf of Ukraine.

The International Economic Emergency Powers Act of 1977permits only freezing, and not selling, foreign property in the course of an international crisis. Congress adopted this law to replace the Trading With the Enemy Act of 1917, which gave the president much broader power to take action against U.S. adversaries in and out of war.

Since then, the U.S. has frequently used the power to seize assets belonging to foreign individuals or nations as an economic sanction to punish what it considers bad behavior. For example, after Iran stormed and seized the American embassy in Tehran, the U.S. government seized billions of dollars in Iranian assets in the U.S, including cash and property. The U.S. has also frozen assets of Venezuela and the Taliban over ties to terrorism and Russian individuals considered responsible for human rights violations, thanks to the Magnitsky Act.

In all these cases, the United States held on to the foreign property rather than sell it off. In some cases, it used the seized property as a bargaining chip toward a future settlement. In 2016, the Obama administration famously returned US$400 million to Iran that the U.S. had seized after the embassy siege in 1979 – delivering stacks of Swiss francs stuffed inside a Boeing 737. In other cases, the assets remain under government control, administered by an office of the U.S. Treasury, in hope that eventually some compromise can be reached.

The Patriot Act, adopted in the wake of 9/11, created a limited exception to the confiscation ban in instances in which the United States is at war. The U.S. never has used this authority. And despite the increasingly heated rhetoric, stepped-up sanctions and growing aid for Ukraine, the U.S. is not at war with Russia.

A fundamental principle of justice says those who cause harm while breaking the law should pay.

In international law, we call this “reparations.” As the United Nations puts it, “Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law.”

In recent history, victors have often forced reparations on the losers of war – as was the case following both World War I and World War II – especially when they are deemed responsible for massive death and ruin.

Russia has wrought terrible destruction in Ukraine. Several cities, including Mariupol, are all but destroyed, and evidence of war crimes in places like Bucha is mounting.

So it makes sense that so many scholars, lawmakers and others would argue that the regime of Vladimir Putin and those who benefit from his rule should help pay for it.

Some, such as Harvard legal scholar Laurence Tribe, argue U.S. law already allows the president to use any seized or frozen asset as reparations. But, as other experts have pointed out, doing so has serious problems. The legal issues noted above are one major hurdle and open this up to being challenged in court.

Another is political. Confiscating assets takes away important bargaining chips in any future negotiations, as they have been with Iran and other countries.

Specialists in sanctions law – including me – agree with Biden that Congress needs to pass a new law.

The question then becomes what that legislation should look like to avoid running afoul of international law and the U.S. Constitution. There still seem to be several limitations on what Congress can do.

For example, the Constitution’s Fifth Amendment guarantees due process before the government can confiscate a private citizen’s property. But does this apply to property in the U.S. that belongs to a foreign citizen? The answer seems to be yes, at least according to two Supreme Court cases.

Selling off Russian state property such as central bank assets, creates other problems. International law provides a certain degree of immunity from confiscation to foreign nations and their assets overseas. Outside of wartime, confiscation of state property, including U.S. deposits of Russia’s central bank, runs up against these challenges.

A case currently before the International Court of Justice will decide whether the United States violated this rule when it used funds from frozen Iranian central bank deposits to compensate people who had won a default judgment from Iran for supporting terrorists.

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So, yes, I believe that Russia’s invasion of Ukraine is outrageous and demands a response. But that doesn’t mean the U.S. and other countries should ride roughshod over international law and the U.S. Constitution to do so. Congress should be able to craft a law that allows some assets to be confiscated without violating due process or international law.

I predict that disregarding these issues will likely produce embarrassing judicial setbacks that will make it harder to help Ukraine down the road.

Let's not forget Shireen