Russia v. Ukraine: The Policy and Legal Considerations of an Unprovoked Attack on a Sovereign Nation

Episode Notes

Transcript

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Intro:  Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job.  This show is your trusted resource for the next big step.  You’re listening to the Legal Talk Network.

Meghan Steenburgh:  Hello and welcome to another edition of the ABA Law Student Podcast.  I’m Meg Steenburgh, 3L at Syracuse University College of Law JDi program.  Today, we are honored to have with us Judge James E. Baker, director of the Syracuse University Institute for Security Policy and Law, a professor at the Syracuse University College of Law, and the Maxwell School of Citizenship and Public Affairs, and a Distinguished Fellow at the Georgetown Center for Security and Emerging Technology, Georgetown University.

He previously served as a Judge and Chief Judge on the U.S. Court of Appeals for the Armed Forces.  As a career civil servant, he served as Legal Advisor and Deputy Legal Advisor to the National Security Council.  Judge Baker has also served as Counsel to the President’s Foreign Intelligence Advisory Board and Intelligence Oversight Board, an attorney in the U.S. Department of State in aide to Senator Daniel Patrick Moynihan, and as a Marine Corps infantry officer.

In 2017 to 2018 Judge Baker was the Robert E. Wilhelm Fellow at the Center for International Studies at MIT.  In addition to teaching at Syracuse University, Judge Baker has taught at Yale, Iowa, Pittsburgh, Washington University St. Louis and Georgetown.  He is the author of numerous articles and three books and a graduate of Yale law.  Thank you so much for joining us today.

Judge James E. Baker:  Well, thank you.  It’s my pleasure and honor and it’s great to see you again.

Meghan Steenburgh:  Well, full disclosure.  You beat me to it.  I had the honor of having Judge Baker as my National Security Law professor.  So, it is so great to see you again as well.  Today, we are going to focus this conversation on Russia versus Ukraine, the unprovoked invasion of a sovereign state.  You have seen the inner workings of National Security Law from various perspectives, including from the White House for the president of the United States from a legal perspective only what is in the president’s legal toolbox.  And what have we not yet seen?

Judge James E. Baker:  Thank you.  First, I should note one of the things you get with a now senior judge as you get independence.  And that’s good if you want an impartial and independent court, it’s not as good if you want someone to speak for the United States government.  I do not.  I speak only for myself and the views expressed may in fact be the views of the United States government, but I’m not here to express those views.  I’m just expressing my own views.  Now, to your question.  Thank you.

As you know, I always look at the policy tool box before I look at the law because the law serves three purposes.  It provides the authority to act in the boundaries of that action.  It provides essential process and then it provides for our national security as well as our legal values.  So, in order to apply the law, I need to understand what the policy makers might be thinking about.  And so, I go through the toolbox and the toolbox include such things as diplomacy, law enforcement, economic tools, both positive and negative and obviously we’ve seen a lot of the negative tools which are sanctions.  And then, we have intelligence options and we have military options.  What have we not seen?  Well, we’ve seen some diplomacy.  We’ve seen a lot of sanctions.  I’m in the camp that would argue for throwing the book at this time.  Use all your sanctions and we can talk about why later, but if not now when we have literally potentially millions of lives at stake.  We have the future of democracy and the rule of law at stake.

And if ever, there was a time to use the sanctions, the complete kit, it would be now.  What does that mean?  Well, the sanction that appears not to be on — I think it’s on the table, but it hasn’t been implemented yet is the energy sector in Russia.  And there are two reasons why that may be the case or there’s probably 17 reasons but two of the reasons are it may be that they are partners and allies aren’t on board yet and unity is essential here, or it may be although I think we’re past that point and effort to try and influence.  It’s quite clear that the opponent here is not subject to that kind of diplomatic influence.  So, it either must be that our allies are not with us yet in some regard or some other factor that escapes my attention.  But I think I would go to the full set of sanctions at this time.

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Sanctions take time if they work at all and we don’t have time.  If you’re being in discriminately shelled and put under rocket attack in key, you don’t have time.  So, some of the things you said, what are we not seeing?  Well, some of the things maybe intentionally be out of sight.  So, and that’s a good thing, right?  If you’re not supposed to see it, I’m glad you don’t see it.  But what might something like that be?  Well, I don’t know so I can say that I hope we are sharing intelligence.  I hope we’re sharing military capability in terms of planning organization tactics and so on, both of which could be done in theory, remotely.  There are obviously weapons going in and the delivery mechanisms for weapons might be done overtly or clandestinely using intelligence authorities, and I won’t speculate there partly because I hope it’s happening and I don’t want to suggest either that I know or give something away without realizing I’m doing that.  But I hope that we are using the full authority of the National Security Act of 1947 is amended to support Ukraine.  And then, of course, there are military options which are not on the table at this time.

We all know that the government of Ukraine has asked for a no-fly zone.  There are different options.  The president of the United States has indicated so-called “no boots on the ground.”  I don’t really like that phrase.  It’s been a phrase that sort of been incorporated into foreign policy talk now for 30 or 40 years.  And the fact is there’s a lot of military things that don’t require boots and not every boot comes with a weapon.  So, it’s a sort of confusing term of art and it may either give you too much comfort that something is happening or too little comfort that it’s not happening.  But I think what the president means is in light of the potential threat of escalation to potentially nuclear conflict that the United States will not become a direct participant in conflict with Russia unless of course, Russia was to cross the Article 5 NATO line.

Meghan Steenburgh:  So, there are many bodies of law here.  One of them is the Law of Armed Conflict, international law.  Could you speak to its main principles and tell us who’s responsible for following it and what happens when you don’t? 

Judge James E. Baker:  In two minutes or less, yeah.  No, I’d like to sort of breach two topics here.  One is, what is a public citizen need to know about the law of armed conflict.  What does a general public audience, what is a general legal audience need to know about the law of armed conflict as it applies to the present context?  Secondly, why does this law matter?  Which is a bigger topic, but a highly relevant topic in our context today.  So, I put together a sheet for my class the other evening of law of armed conflict and other legal issues involving the Russian invasion of Ukraine.  And I had 30 or so specific topics involving the law of armed conflict.

So, I don’t want to sit here and tell you that I’m going to comprehensively cover each of those and I don’t think that’s what you asked me to do.  But a couple of fundamental things need to be said right now, there are targeting principles that are found in both treaty law as well as customary international law.  So, it’s not a debate over whether you’re a state party to protocol one or protocol two and then we’re talking about protocol one here to the Geneva Conventions, the United States in virtually every law-abiding state considers what I’m about to say to be customary international law, much of its founding treaty as well but the targeting principles — critical targeting principles are one distinction sometimes referred to as discrimination which requires you to distinguish between combatants and non-combatants in how you deploy your weapons.

So, we see immediately that Russian forces blatantly disregard that principle, and I’ll say more about that in a moment about a particular kind of weapon system, but they’re violating the most, you know, one of the threshold principles of the law of armed conflict is that you engage in combat with combatants and not by intentionally targeting civilians.  The next principle is proportionality, and proportionality is generally the concept that even if you are engaged in a lawful military action, the lawful military attack, the impact on civilians and civilian objects cannot be disproportionate to direct and concrete military gains to be had from the attack.

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So, if you’re taking sniper fire from a building, you can’t level the city block.  You might even argue that you don’t have a military necessity to attack the building at all because you can go down a different street.  But one thing you can’t do is take out the whole city block, because that would be viewed as disproportionate and violate the principal proportionality.  Over surprise here again, Russia blatantly routinely and consistently violates that principle.

The military object, you can only attack military objects, and you have to have a military necessity for doing so.  I rest my case on that as well.  And then there’s the principle of minimization of suffering for a generalized humanitarian principle, and that’s an effort to try and minimize suffering as one would imply.  But what we’re really talking about here is not using weapons systems that cause undue suffering.  So, what is an example of all of this?  There’s been a lot of talk about thermobaric weapons, and people have described them in different ways with different terminology.

A thermobaric weapon is — and I’m not going to pretend I’m a chemist or a munitions expert, but I know this about thermobaric weapons.  They’re an incendiary weapon.  They’re designed to create a blast wave that is slower than a high explosive blast wave.  And why is that?  Because it can spread out and the blast wave can go further, and it’s also a blast wave that is ignited and why might you have such a weapon for lawful purposes?  You might have such a weapon for lawful purposes if you were attacking trenches or you were attacking bunkers where the enemy was dug in.  I don’t want to say it is because everything is contextual but that’s conceivably an instance in which you could lawfully use a weapon system, because one question with the law of armed conflict is, could a weapon ever be used lawfully?  Chemical weapons are absolutely prohibited biological weapons are absolutely prohibited.  So, the answer is there’s no context in which they could lawfully be used.

The key piece of law here, in my view, there’s a lot of law here.  One is, of course, the general principles of targeting the violation of which is a war crime.  There’s also Protocol III to the Convention on Conventional Weapons.  The CCW and Protocol III addresses incendiary weapons.  It’s a very short document which lends its clarity, gives it clarity.  You may not use thermobaric, you may not use incendiary weapons against civilians, period, but that’s also your principle of distinction.  And you may not use incendiary weapons against any military objective which is located within a concentration of civilians.  So, any use of a thermobaric weapon which is an incendiary weapon in Kiev would, of course, violate that on its face, because even if which is not the case, it was being fired at a military objective.  That military objective would necessarily be within a concentration of civilians.  And of course, that’s precisely why the Russians are moving those weapons up and to my untrained eye, appear to be using them.  I’ve seen a couple of explosions in Kharkiv where it appears to me to be a thermobaric weapon being used.

We’ve also seen cluster munitions.  I’ve seen at least one video, and I know our audience will have seen that video.  It looks like a parking lot next to an open space in Kharkiv.  The explosion comes down and spreads out.  That to me looks like the signature of a cluster munition.  There is a treaty, the Dublin Treaty, that some states have signed, which prohibits the use of cluster munitions.  The United States takes the view that cluster munitions are not inherently unlawful, but what is an inherently unlawful is the use of cluster munitions indiscriminately without distinction and to put civilians at risk in the way that they’re doing. There’s no way in that video that I saw that would pass this test of distinction or proportionality and certainly would also flunk the minimization of suffering. And one thing I think that’s also important to notice. I would like to convey the passion with which I want to be dispassionate about a topic I’m very passionate about, but this is grotesque consistent and outrageous violation of the law of armed conflict.

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It is a disgrace to any professional military member who by definition, is not a professional military member to engage in any of this action regardless of who pretends to order it or who is ordering it from the top.  I don’t think anybody has any doubt about how destructive the Russian onslaught is.  However, there may be a tendency to sort of get the daily video of one bomb being set off or one cluster munition, and then you hear something.  For a while, there was the image on TV of the missile that had flown into the apartment building, which was clearly — I should say, clearly there is no apparent military purpose.  There’s no assertion that that is being used for command and control or as a weapons platform.  But what’s lost in images like that is so far the U.S. government has indicated that they can confirm, I believe the number is 580 missile strikes so far.

So, I think sometimes what we’re losing in focusing on one incident, the television tower incident or the parking lot incident is this is a blanket thing.  This is going on all night, that’s the nightly missile, 580 missiles are a lot of missiles, and that’s just their counting of sort of cruise missile type things.  So, the relentlessness of it needs and the scope of it needs to be highlighted as well as specific incidents.

Meghan Steenburgh:  And I should say we are just one weekend at the point of this conversation, so seven days we’re at.

Judge James E. Baker:  Correct, yeah. And really, the Russians do not appear to have unleashed their artillery capacity to full effect yet.

Meghan Steenburgh:  It is fascinating to hear your walkthrough everything to know what the civilians are saying, and they have described those cluster munitions.  But when you know that this is the rule of law, that it’s so flagrantly violated that the ICJ has already opened up investigations for Crimea, who actually will enforce these laws.  The ICJ is looking at them right now, all of these crimes, and what is the advantage of opening it up right now?  They’re not going to presumably arrest Putin.  Is this to go after the lieutenants and to tell them to your point about command?

Judge James E. Baker:  The doctrine of command responsibility, I think it’s important to highlight in the context of any discussion about the law of armed conflict, there’s a lot of focus on, as there should be, the war criminal in chief, which is Putin.  But under the doctrine of command responsibility, we have a number of principles, one of which is each person is individually responsible for any war crime they commit.  Commanders are responsible for war crimes that they reasonably should have been able to prevent or know about.  So, they can’t argue, I didn’t order that.  If it occurred and they knew it was occurring or if it occurred and they should have known it was occurring, they’re accountable for it.  Under the doctrine of command responsibility, in the Yamashita case.

Commanders also have to take reasonable measures to prevent violations of the law of armed conflict and clearly no indication that has occurred.  And one might look to the Queenfish case for that principle.  And then the Rwanda court and the Yugoslav court also had cases that stood for the proposition that command responsibility could run to civilians, as in the Balkans, when those civilians were demonstrated to be in the military chain of command and responsible, and I think that would obviously apply to Putin.  And then the command responsibility includes a requirement to investigate and if appropriate, we’ve called for prosecute, which leads to your question about accountability.  You mentioned the ICJ, but I think you probably wanted to focus on the ICC as well.

Meghan Steenburgh:  Yes.

Judge James E. Baker:  In us practice, the principal mechanism for upholding the law and principles in the law of armed conflict is, of course, the uniform code of military justice.  Any professional military officer or member of the military knows that good ordinary discipline and leadership and adherence to laws, it makes a professional military distinct from a mob or a criminal gang with weapons.  Professional military should want discipline and good order and discipline because they’ll fight better.  But we’ll get to that in a moment.  But in this context, where we’re talking about the Russians.

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We, do not going to have a UCMJ and in fact, I look the other day to see if they had such a thing as a Judge Advocate in the Russian military.  I could not find such a thing.  I could find military prosecutors for things like, you know, no doubt to keep people in line to make sure those conscripts go where they’re told their go but no concept of the Judge Advocate that the United States military and other professional militaries have to make sure that the chain of command is informed of and follows the law of armed conflict.  So that means where might this stuff get adjudicated.  I believe today, may have been yesterday, the international criminal court, the prosecutor said that they were opening an investigation into events potential and I only say potential because they’re not supposed to assume guilt until there’s actually an investigation and an adjudication of the facts but they’ve opened an investigation.  There is a mechanism to state parties to the ICC.

There’s jurisdiction in those cases.  There’s also jurisdiction if the security council refers a matter to the ICC and that’s not going to happen because of the Russian veto but there’s a third mechanism where the prosecutor can open up an investigation.  If a nation that is not a state party subjects itself to jurisdiction when the war crime or the event in question has occurred in its territory or by one of its people which is what Ukraine has done and I believe they actually did that in 2014 in the Donbas context, but they’re doing it now as well.  And then, as I understand it, I’m not going to pretend I’m an expert in criminal procedure or ICC procedure but where there’s a referral, like this I think the prosecutor has to go to the trial judges the judicial element of the court and get their sign off on pursuing an investigation, of course, that’s going to be difficult because the investigation would need to occur at the site of the crimes or if it was an investigation or command responsibility.

You need to have access to the commanders and those who are following either carrying out orders or refusing to carry out orders but as Milošević learned that the time is ultimately on the side of the law and accountability and there’s also something to be said from the standpoint of the victims, the adjudication, or at least investigation is a form of justice if not complete justice.  Based on the doctrine of command responsibility I would not assume that Putin is the only war criminal here or the only person who can be held accountable.  If I were in the Ukrainian country and I had access to any Russian either to visual identification or through perhaps a prisoner, I would be keeping very careful track of which units were involved and who the commanders were and make sure I had a list so that I could trace back to who actually fired the shell or who actually gave the order to fire the shell that did blank.

So, there are two other forms as I understand that the government of Ukraine is filed something at the ICJ involving both ICJ jurisdiction in genocide convention jurisdiction stemming from the outrageous, appalling and disgraceful Russian efforts to try and pretend they were coming into the Donbas for reasons of genocide, and of course, we see the care that they have for that with the targeting of the Holocaust Memorial in television tower in Keith.

And then it’s sort of flew under the radar but the European Court of Human Rights just in February decided a case involving Russia’s similar but not as large invasion of Georgia in 2008.  And the case is somewhat controversial from the human rights law standpoint because the court is split opinion.  The court declined to exercise jurisdiction over the conflict itself, the five days of actual fighting back then but they did sort of jurisdiction over the Russian occupation after the five days of fighting.  One of the issues was that seemed like an incomplete assertion of jurisdiction from the standpoint of the victims but they did hold rule against Russia in terms of things that had occurred during the occupation that followed those five days.  So, those are three possible form the ICC is probably the principal one in this case.

Meghan Steenburgh:  But one thing you brought up was the UN Security Council.  And as you mentioned five permanent members rotation of temporary, and of the five permanent, Russia is one with full veto power and we saw it exercised at veto power is to not condemn itself for the invasion.  At what point can you do you oust Russia from the Security Council?  How can it remain a member?

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Judge James E. Baker:  We may be at that point.  There are two issues here.  My initial goal will be to sort of lay out the issues for your audience and then I’ll express an opinion.  The first issue is should Russia be in the Security Council seat at all.  This has to do with doctrines of state succession, when the Soviet Union collapsed and then cease to exist and 1992 the question was, what happens to the Soviet Union’s permanent seat on the Security Council.  At that time was interictally involved in this back then.  I saw, I’m just telling you what I’ve subsequently sorted out.  Boris Yeltsin wrote a letter to the Secretary General I believe saying that the succession states from the Soviet Union had agreed that Russia would assume the Security Council seat that had been held by the Soviet Union.

So, on the one hand ordinarily under the doctrine of state succession, if a state, if it let’s say these are held the seat and these are deposed and then and then killed, the Soviet Union, which is the same state would assume the seat and the obligations including the debt and other things of Russia.  So that’s one reason Russia might have ended up in the Security Council seat.  On the other hand, and the argument that I think the government of Ukraine has made recently and in the past is that the there was no state succession because the Soviet Union ceased to exist.  So as in Russia and then some different version of Russia, it was Soviet Union and then a new state called Russia — scholars can debate that but what happened is the letter having gone into the Security Council, or into the secretary-general.  It was at that time, which it seemed the most apt time for the general assembly to use its article 18 charter authority to over the admission and new members to the United Nations the suspension of the rights and privileges of membership, the expulsion of membership and so on by two-thirds vote.

And we’ve seen that with respect to Taiwan when the PRC joined in 1972.  So, we know it can be done but it wasn’t done back when Russia assumed the scene.  So that’s point one and you can argue that but you’re sort of arguing history, but that leads us to the next question, which is wait a second, if they could throw Taiwan out could they not do something with Russia?  And this is why it was important for me to emphasize.  I don’t speak for United States government at the beginning.  I’m being a professor here and pointing out that I think the plain reading of Article 18 would give the general assembly the authority to suspend the rights and privileges of membership of a state or expel members.  It’s a fair question in the moment in time, which is this is not a dispute as to why one state or another vetoed something at the Security Council.  This is a state that has violated every principle found in the charter.  Both the humanitarian principles and the principles directed to territorial integrity and political independence.

If ever were, I mean, never say, it could always get worse, I suppose, but I can’t imagine a more compelling moment to at least consider whether the general assembly should exercise its article 18 authority.  Do either relieve Russia of its membership or suspend Russia of its membership.  This is complicated because you don’t want to get into a situation and the US as a country and a state and the government would be very wary of this.  You don’t want to vote people out of the Security Council or out of the UN when you have a policy disagreement.  That’s not a good idea and we wouldn’t want that because the United States is a critical actor and they belong on the Security Council and should be on the Security Council, but I can’t imagine a more compelling moment to at least contemplate if there ever were a time where you would terminate membership or at least suspend membership.  This might be that time.

Meghan Steenburgh:  We are speaking with Judge Baker.  Syracuse University College of Law.  We will be right back.

And we are back now with Judge James E. Baker Syracuse University College of Law.  So, as I look at this, it almost seems as though what we are seeing with everyone with NATO members lining up along the border that this is an exercise of restraint and what it looks like to follow the rule of law.  Is that accurate?

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Judge James E. Baker:  If you’re talking about restraint on the part of NATO, certainly we have seen no restraint on the part of Russia.

Meghan Steenburgh:  Yes.

Judge James E. Baker:  I think that the two areas we’ve seen restraint, and whether its restraint predicated on law or restraint predicated on discipline, policy or political discipline as well as military discipline, we’ve seen it in a number of places.  The first place we saw it, was when Russia was doing everything it could to try and provoke an incident that would give it a false cause of (00:30:38) to invade Ukraine.  So, they appeared to be firing in the Donbas Region they appeared to be, I say appear because all indications are it was Russian artillery, but I wasn’t there to investigate it.  But you will recall the incident where the artillery went into the kindergarten, and then Russia would say the Ukrainians were firing on the people in Donbas.

And the first place we saw discipline and restraint was the Ukrainian military were following the rules of engagement, which was not to fire back unless essential as an act of self-defense.  I don’t know if that was the specific rule of engagement, but they were clearly operating under direction rules of engagement that said, do not do something that will be used by Russia as an excuse.  So good on them that showed a degree of professionalism and also an understanding of why restraint and warfare is sometimes the right choice.  And then you’re also pointing out to you’re calling it restraint, but it may be a number of other things, but the policy decision by NATO and then by individual members of NATO as well, like the United States, not to enter into conflict, into direct hostilities with Russia or risk doing so.

I would say that’s really not a legal issue in the following sense, the constraint there is not legal, the constraint there is called nuclear weapons.  But under international law, and the government of Ukraine has every right to invite a member country, another country, into acting collective self-defense.  So, President Zelenskyy, who by the way, we’ve all recognized he has acted with both great courage and leadership.  He certainly has invited the collective self-defense from other nations.  And under International Law 101, there is both the principle of collective self-defense and also a state can invite another country into its territory if it wishes to.  So, I don’t see that as being a legal impediment.

I think the fundamental constraint is the concern about doing something on the NATO side that would cause Putin and Russia to do something even more irrational.  I’m not an expert, there are people who are experts in Putin, Ambassador McFaul has been commenting that he thinks that Putin is perhaps no longer a rational actor.  I’m not in a position to say that, I think he would say, I don’t want to speak for Ambassador McFaul either, but he’s expressing some concern in that category.

So, I think the constraint or the restraint is not international law.  I think the constraint is concerned about escalation and concerned about the other side of the table and their behavior.

Meghan Steenburgh:  What do you think will trigger NATO, what’s an appropriate time to jump in, is it under Article V, harm one, harm all?  But what’s the spark?  Is it an errant bomb?  Is it an embassy hit?  What does that look like?

Judge James E. Baker:  Well, I don’t think the United States would want to say what that looks like.  There’re some advantages to strategic ambiguity.  We know as a matter of principle or law or Article V that it would look like an armed attack, but I don’t think it’s to NATO’s advantage or to the U.S. advantage to specify exactly what that looks like.  We know that certain things, it would certainly look like.  One of the questions I’ve put to my students in the class that you’ve taken they just had their midterm exercise, which is ongoing and one of the questions was to analyze the president’s constitutional authority to respond in the collective self-defense of the neighboring States of Russia.

Now you have the NATO States, the Article V NATO States.  But what about Finland or Georgia?  So, the question is not just a NATO question, but what would NATO do and what would the United States do if there was an attack on, an armed attack on Finland?  It wouldn’t be an Article V scenario, but it would obviously be a continuing threat to the rule of law and democracy and everything we stand for as a country and everything the charter regime stands for that is being violated in Ukraine.

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Meghan Steenburgh:  One piece of news that seems to be coming out more and more in the last just couple of days here.  The presence of foreign fighters gathering in and around Ukraine, coming from many sources, including the United States and as far away as the United States and as close as Poland.  What risks does that bring to the nations which citizens belong?

Judge James E. Baker:  Well, I think Daniel Byman did a good job in Lawfare, either today or yesterday addressing this issue.  So, I would refer your listeners to his piece, it’s not the only instance, but this is a Spanish Civil War style call for assistance.  One sort of threshold question is, is it more helpful or less helpful?  It certainly is a symbolically helpful.  And the question, though, is in the end, is it going to be more helpful or less helpful?  How could it be helpful?  Well, if you had people who were militarily trained, former special forces people who knew how-to call-in artillery, how to use the weapon systems that are being provided, there’s probably a training deficit somewhere, and I can imagine there are people who have prior military members from different countries who would be very good at training.

One question is how to make use of these people.  Do you send them up to the forward edge of the battle area, or do you use them as trainers so that could be useful?  But Daniel Byman points out that they’re command and control issues right under the law of armed conflict, you need to have command and control.  And are these people going to come in and be placed within Ukrainian units so they going to operate on their own?  How do you command and control someone who doesn’t speak Ukrainian or Russian?

Although I must say, so far it seems that every Ukrainian, any reporter has come upon speaks English, but that’s no doubt a self-selecting thing but you do have to account for command and control.  And I think the thing I would be most concerned about from the foreign fighter standpoint, Ukraine, the will to fight, is so impressive.  I’ve been impressed with the people I’ve met in or out, if from Ukraine about their commitment to the rule of law.  I really sensed that there was a deep commitment to the rule of law and not a lately found commitment when requesting NATO assistance.

What I would worry about with the foreign fighters is that the Russians would use that as a false basis to assert that the country, if that the foreign fighter was from was engaged in hostilities.  You can imagine how that could be misplayed in dangerous ways.  And so, there’s a cost benefit analysis to be done here.  And that cost benefit analysis may be done as a general matter or may be done as a specific matter as to whether the foreign volunteer is sent to the front line to fight or to provide medical assistance that’s a whole different ballgame.  Doctors without borders or anybody who’s willing to provide that kind of assistance more power to them, what wonderful people, we need more Paul Farmers in the world.

But that’s a different way of approaching it which is for what purpose?  So maybe we’ll leave that there, I do refer your audience to the Daniel Byman piece, which I thought was well worth reading and instructive.

Meghan Steenburgh:  You mentioned earlier, Slobodan Milošević, while you were at the White House, the Bosnian war erupted.  My images that I remember NATO forces throughout the area, U.S. involved and to me, one madman of Milošević here another with Putin.  What can we learn from that then, how are they different?  How are they the same?

Judge James E. Baker:  My son just read Love Thy Neighbor.  Love Thy Neighbor by Peter Maass, and some of what is described in that book.  So, I talk about it.  He calls me up and we talk about it.  And his question is, why didn’t the United States and Ornado or others come in sooner?  Which of course, is the question that the people in Sarajevo were asking, the people in (00:39:36) were asking and so on.  One of the lessons, of course, of the Bosnia conflict was when the United States engaged in air strikes in 1995.  And then, of course, with the Kosovo the third war that Milošević’s started.  Which was the Kosovo situation in 1999.  One of the lessons is tyrants don’t stop until you stop them.

(00:40:00)

People ask why should we care about Ukraine.  I hope they’re not asking that but if anybody is in doubt about why we should care about Ukraine, I’ll say there’s at least two answers but two is enough because they’re absolutely compelling.  One is we learned in Bosnia as we’ve learned before, we don’t have to go back to 1939.  We can go back to Bosnia.  We learned that if you don’t stop a tyrant, they will not stop.  Milošević was stopped and he was stopped by force.  And in retrospect, you can say, what if that force had been used sooner?  And in the Russia-Ukraine context, you can say what if the response in 2008 or 2014 had been stronger either in the sanctions area with the military supply of Ukraine.

So, it seems like again, it’s always easier to read history backwards as one of the national security advisers I worked with used to say.  So, one reason we should care about Ukraine is we’ve seen this before.  We’ve seen it before Putin and we’ve seen it before Milošević, and we can go back to 1939 to the ‘30s as well if you don’t hold the line somewhere the line will keep on moving and that is absolutely evident.  And then the question is, when was it evident and did we act upon that knowledge?  But that’s one reason.  Second, Ukraine is a democracy.  It is a country that wants to be part of Europe that wants to be part of EAU. And this is who we are as a people, right?  If we care about freedom, we care about law, we care about sovereignty, we care about territorial integrity.  If we stand for anything, we must stand for the people of Ukraine against a war of aggression.  And unfortunately, we have seen a lot of people die and we will see more die.  And if you want to know what that looks like, look at the pictures of Grozny and look at the pictures of Aleppo.  Both brought to you, courtesy of the Russian government in Russian military.

Those military commanders are accountable for that, just as Putin is.  So, if that bothers you, then these matters.  What is different between Ukraine and Bosnia?  Nuclear weapons, the potential for escalation to wider conflict and world conflict with the full arsenals available to States, that’s not the case in Bosnia.

Meghan Steenburgh:  One more question.  Why does law matter?

Judge James E. Baker:  Thank you for that question.  It’s a good question for this podcast, and it’s a good question for this context.  If you’re a Ukrainian and you’re in a bomb shelter in Kyiv or Kharkiv somewhere else in Ukraine, it would be fair to ask, is there such a thing as law?  Is there such a thing as international law?  Is there such a thing as the law of armed conflict?  Because it doesn’t seem to be present.  And we as lawyers, we as public citizens, we as national security specialists, we’re the ones who need to carry the message forward in the United States government and in the world that law does matter.

And I think the hard part here is not to argue why law matters is a value.  The hard part to argue here is why should we care about law as a matter of national security.  And law in my view, leads to better national security and for a couple of reasons and in this context.  And it’s hard to see when the opponent doesn’t follow law at all.  And this was sort of the origin of the whole law fair phrase about the asymmetric disadvantages when the other side doesn’t follow the law and we do I would flip that.  There are also advantages.  There are asymmetric advantages to following the law.  One of them we’ve already talked about, which is militaries that operate under good order and discipline.  They do that because of law, and they do that because of leadership, the two go hand in hand.  In a disciplined military is more likely to win wars and battles than an undisciplined military.

The principles of war.  One of the principles of war is economy of force.  Economy of force is the military term for what a lawyer might call proportionality.  Only use that force or military necessity.  Only use that force necessary to accomplish the mission.  Why should you wish to do that for national security reasons?  Because national security resources are finite, and so you do not want to expend ammunition on things you don’t need to attack.  That’s a national security principle.  The will to fight, which is so evident in Ukraine.  Do you think that they would be fighting like that if they were fighting for a dictator?  “Yehey, we want the dictator of Ukraine.

(00:45:00)

Let’s lay our lives down for that.”  They wouldn’t be doing that in a second.  If they were — would they have the will to fight if President Zelenskyy was ordering them to kill prisoners or to hurl missiles into Russia randomly to hit buildings?  They’d say not going to do this.

Following the law gives you the moral authority to demand the will to fight, and it leads to the will to fight.  It also leads to something else, which is public support, international support, and people who want to volunteer to fight with you from within the country and perhaps from without as we’ve talked about.  What happens when you follow the law?  For example, Common Article 3, Geneva Conventions, humane treatment of prisoners.  A prisoner who is being treated humanely is more likely to give you information than one who’s being brutalized, we’ve seen this many times before.  So, if I were explaining to — if there were a need to explain to a Ukrainian commander why they should treat captured Russians humanely, I would want to say that it’s required by the law of armed conflict by Geneva Convention, a Common Article 3, among other things.  But I would also point out and more importantly, they’re more likely to share with you the kind of information you need to know so that you can more effectively fight the battle ahead.

And then what about law at moments of existential threat?  In response to that, I note that the first modern effort to apply the law to armed conflict was the Lieber Code, which was signed as general order 100 by President Lincoln in1863 in the middle of a civil war.  So, one needs to be careful about preaching about the value of law and the virtues of law when you’re sitting in the United States and you’re not the person in the bunker or on the Ford edge of the battle area staring down a tank with a shotgun.  But I do note that it was during the civil war among the hardest times to advocate for law that the Lieber Code foundation of the modern American adherence to law in conflict was adopted.

So, I hope that gives our audience confidence that what they’re doing matters.  Anybody who’s listening to this, who wants to become a lawyer, who is preparing to become a lawyer, is a lawyer.  Your service matters.  Military members, as civil servants do in the United States, swear an oath to support and defend the constitution.  To support and defend the law that matters, and we see why it matters when it isn’t followed in a place like Ukraine.

Meghan Steenburgh:  Judge James E. Baker, Syracuse University College of Law.  Thank you so much for guiding us through the legal components of national security and our responsibilities as lawyers.

Judge James E. Baker:  Thank you very much, Meghan, for inviting me.  I think you probably know I could go on.  The people in Ukraine deserve for us to go on as long as it takes.

Meghan Steenburgh:  And thank you for listening.  I hope you enjoyed this episode of the Law Student Podcast.  I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple podcasts.  You can also reach us on Facebook, at ABA for Law Students and on Twitter @abalsd.  That’s it for now, I’m Meg Steenburgh.  Thank you for listening.

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