Did Russia violate International Law? Part I

A Draft Paper as a Contribution to the Present Debate

         The United Nations Security Council (Photo: Public Domain)

1. 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 we have to admit that the United States from 2015 and in conflict with the Syrian Government has occupied up to one third of Syria, but in the latter case, there has been no Western criticism of the U.S. “violation of international law”. Israel has from 1967 occupied even larger parts of Palestinian territory, but no Western country has entered the conflict by giving massive military support to the Palestinian people. No political leader in the West 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 what is legally permissible according to international law, and we cannot just brush the Russian arguments aside. We have to go deeply into the Russian analysis. To ignore their arguments would just be a recipe for conflict escalation and World War III. This article will look at the Russian and the Western interpretations 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 is a military intervention strictly speaking an act “of aggression”, a “breach of the peace”? To what extent is it a “vengeance” of earlier crimes? And to what extent is such an intervention launched by an actor being “pushed into a corner”? International law is supposed to handle these difficulties, but to be clear: vengeance cannot be “our goal”, as Ference said.

In the United States, many legal 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 threats and invasions 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 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. The U.S. neo-conservative elite, however, argues that they are spearheading a global battle, an ongoing “political war” directed against states like Russia and China. Such a warfare against others would strictly speaking be a violation of international law and of the UN Charter. There is certainly 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 (UN Charter Article 2; 4) contains an absolute prohibition against invading other states. Equally absolute is the prohibition against threatening with the use of force, the Norwegian scholar of international law professor Geir Ulfstein says. In Europe, many people see this as unproblematic. But what if a threat of using force is so serious that the threatened state has no alternative than to attack in self-defense?

Nuclear weapons are certainly a threat to the other side, and the International Court of Justice (ICJ) concluded that “the threat or use of nuclear weapons would generally be contrary to international law” but possibly lawful when the “very survival of a State would be at stake”. But still, nuclear deterrence has been developed into a system of threats said to provide security to the single states. Although these threats strictly speaking would be illegal under international law, we can at least try to reduce the immediate threat to the others by avoiding forward deployments. 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, such forces 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 Cold War.

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” and “friendly relations” not about the right to undermine the stability of a rival. The UN Charter 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 on 21 February 2022 after Russia’s recognition of the Republics of Donetsk and Lugansk (Video: Tele SUR).

2. Which were the Russian objectives?

The starting point for many people in the West is that Russia, with its invasion, 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.

This Russian statement has often been described as “propaganda” in the West, but U.S. defense 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 18^th century. Russia has not expanded its territory very different from the United States that expanded its territory with more than one third in the 19^th century. The experience of Western armies invading Russia from the time of Charles XII in the 18^th century, Napoleon in the 19^th century and Adolf Hitler and the Nazis in the 20^th century have been formative for 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 U.S. Secretary of Defense (later Vice President) Richard Cheney’s push in 1991 not only for the breakup of the Soviet Union but also for the breakup of Russia as a state, as told by former Director of Central Intelligence (CIA) 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 a preparation for an attack on Russia. 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 (2022) 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. [The OSCE said that] the military equipment used by the rebels often were the same as used by the Ukraine Army, because the rebels took over their equipment [from defecting forces].”

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 that suggested 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. From January 2022, Ukraine had deployed 120,000 troops ready to capture Donetsk and Lugansk (see below). 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. This made the Ukraine forces better prepared for the 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 the progress in negotiations in March 2022, Russia said that it would leave the area around Kiev as a “gesture of goodwill”, which it did. Moscow 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 and President George H.W. Bush, and with State Secretary James Baker to the right (Photo: George H.W. Bush Presidential Library).

3. 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 east of West Germany. The U.S. President Reagan (1981-89) had already before George H.W. Bush (1989-93) 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.

In February 1990, 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 had spoken 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 the 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 to Pifer, 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”:

“Security in Central and Eastern Europe - Summary: […] General agreement that membership of NATO and security guarantees 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. [Representative of the U.S. 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 (formally Assistant to the President for National Security Affairs) 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 accordingly 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. When Yeltsin and his Ukrainian and Belarussian colleagues had taken the decision to abolish the Soviet Union, Yeltsin didn’t call Gorbachev to tell him that he was president of nothing, he called President Bush to tell him the news. President Bush’s promises to Gorbachev 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).

4. Oral commitments in International Law and the request for a buffer zone

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, after a Danish request, 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 recognize Danish sovereignty over a territory larger than Norway itself). The Permanent Court of International Justice found that an oral promise as equally binding for the two states as a written treaty. For the Danish side, the problem was to have some written evidence to support this oral commitment, and in this case there were notes from the Norwegian Foreign Minister confirming that an oral promise had been given, which also became decisive for international law.

“For its part, the International Law Commission made clear [in 1962] 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’”.

American Society of International Law stated in 1997 that “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 U.S. Senate writes in “Treaties and other International Agreements”, (Prepared for the Committee of Foreign Relations) 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.”

This means that the NATO expansion into Poland and into other Central-European states in 1999 and further in 2004 was legally speaking a “breach of the peace”. The NATO expansion was in breach with the oral promises given to Gorbachev and considering the global impact of this U.S./NATO policy, it was a major 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 domination, but NATO would also have to consider the consequences of accepting new members, and to Moscow, a NATO enlargement to the east would definitely be understood as “an aggressive act”, a territorial expansion of the U.S. military forces at the expense of Russia. But objectively speaking, it was, as demonstrated above, a major violation of international law. The problem is whether this violation would 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 promises. Does this mean that Moscow afterwards had 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 and “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 promises 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 into NATO was totally unacceptable: “The brightest of all red lines”, as Burns wrote in 2008 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 every 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 Georgi 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 in a tense situation that could provoke a pre-emptive Russian strike, and the same is the case for Ukraine. 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. In 2007, US former Secretary of State Henry Kissinger, former State Secretary George Shultz, former Defense Secretary William Perry and former Chairman of the Senate Armed Services Committee Sam Nunn wrote for the Nuclear Security Project about the need to avoid forward deployments to reduce the risk of escalation. Such forward deployments may provoke a preemptive strike. 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.