It’s time to talk about peace in Ukraine

Don’t let the Michael McFauls of the world tell you otherwise.

A Russian soldier and a Ukrainian soldier, both killed in action.

A chance to stop the fighting in Ukraine and negotiate an enduring peace may be only a month or two away. Armies on both sides seem to be approaching exhaustion. And the slow, grinding advance of Russian troops in the Donbass could lead to a day this summer when Vladimir Putin can plausibly tell Russians that he’s achieved his key war aims—a declaration he no doubt considers a pre-requisite for serious negotiation.

But the national security elites who shape public opinion in America don’t seem eager to prepare the ground for a negotiated peace. Consider Michael McFaul, former ambassador to Russia and MSNBC’s trusted guide to the Ukraine war. Though McFaul says he’s not opposed in principle to negotiations, he spends a lot of time discouraging idle chatter about possible deals (“empty talk”) and says we should focus for now on sending more weapons to Ukraine. Along with several dozen other notables, he signed a recent letter warning about the perils of a cease fire.

Ambivalence about peace talks is understandable. They will almost certainly leave Russia in possession of land acquired via invasion of a sovereign country. That’s positive reinforcement for a clear violation of international law—for the flagrant disregard of core principles enshrined in the UN Charter upon the UN’s creation at the end of World War II.

As McFaul put it on Twitter: “After 1945, we established new global norms against annexation and empire, and for sovereignty and independence, which worked pretty well for many decades. Do we really want to return to the pre-1945 world? I don’t.”  

I don’t either. I’m an evangelist for international law, and I think anything that erodes its force—which positive reinforcement for violating it does—carries a cost.

The question is: How big a cost? That may sound like a cold and weirdly quantitative way to talk about upholding one of the most critical principles on Planet Earth. Isn’t the “cost” of weakening the rule that keeps us from dissolving into a war of all against all potentially… existential?

I guess you could make that argument. But you could say much the same about the cost of continued fighting. Each day of war carries at least some risk of a momentous fluke that could lead to a wider war or even a nuclear war. To say nothing of costs that are “existential” at the individual level—the lives being lost on both sides of this war, and for that matter lives that could be lost beyond Ukraine if the disruption of food supplies continues. 

So, yes, I’m afraid that, however gratingly clinical a cost-benefit analysis may sound when matters of principle are at stake, such an analysis is in order. Does continued war or imperfect peace bring the bigger cost? Which brings us back to the original question: How much does it “cost” to positively reinforce Putin’s violation of international law?

Believe it or not, there’s a way to answer that question—or, at least, to start answering it. There’s a way of framing the question that allows us to at least see how the cost tends to be higher or lower under different circumstances—including the circumstances we’re in now.

And there’s an ironic result of looking at things this way. It turns out that the cost of reinforcing this violation of international law is lowered by the influence of the Michael McFauls of the world—the foreign policy elites who constitute “the Blob.” Or, to put it another way, by looking at the flip side of the “cost of reinforcing” coin: The benefit of upholding the law against invading sovereign states is lower than it would be if McFaul and his fellow Blobsters hadn’t been running US foreign policy for the past quarter century.

As I’ve noted before in this newsletter, there’s a big difference between law among nations—international law—and law within nations.

Within nations there’s usually a well developed set of institutions for enforcing the law. And in many nations there is, for good measure, a strong norm of complying with the law voluntarily, even when punishment for violation is unlikely.

On the international scene, in contrast, there’s little systematic enforcement. The law against invading another country is in theory enforceable by the UN Security Council, which can declare an invasion illegal and authorize the use of force to reverse it. But because Russia, the US, and the three other permanent members of the UNSC have veto power, they can invade countries without fear of Security Council action.

The lack of reliable enforcement means that the strength of international law depends heavily on how robust the norm of voluntarily compliance is. I regret to report that this norm is currently pretty weak—and that it’s weak in large part because of deep-seated tendencies within the foreign policy establishment. To see how these tendencies have undermined this norm is to see why upholding the norm in Ukraine right now is less valuable than it would be if US foreign policy had been in more enlightened hands.

Like many people in the Blob, McFaul sometimes talks about the importance of abiding by international law. And, also like many in the Blob, he evinces what is either a dim comprehension of what international law actually says or something approaching indifference to America’s repeated violation of it.

Consider this tweet from McFaul in February, a few days before the invasion: "Putin has gone to war 4 times already—Chechnya 1999, Georgia 2008, Ukraine 2014, and Syria 2015. Each time the West could not stop him and Putin felt like he won.”

There are actually four different kinds of wars here, but for our purposes the two to focus on are Ukraine 2014 and Syria 2015. Russia’s seizing of Crimea in 2014 was a classic violation of international law—the invasion of a sovereign state, to say nothing of the subsequent annexation of it. But Syria was different: Russia entered Syria at the request of the Syrian government, to help it fight ISIS and other jihadist enemies who were trying to overthrow it.

So Russia’s intervention in Syria in 2015 wasn’t illegal (and it shouldn’t have been surprising, given that Russia has a naval facility in Syria and thus a keen interest in whether the Syrian government gets overthrown). What was closer to being illegal in Syria was America’s infusion of arms, starting back around 2012, to support the jihadists who were trying to overthrow the government in the first place.

And what was more clearly illegal was (a) the subsequent introduction of US troops into Syria without the government’s approval; and (b) the shooting down of Syrian aircraft by US aircraft. (To this day, US troops occupy some of the most oil-rich territory in Syria and oversee what to the casual observer looks a lot like the theft of Syrian oil.)

One might infer from McFaul’s tweet that he’s not aware of this elementary distinction in international law between sending troops into a country at the invitation of its government and sending troops into a country in spite of the opposition of that government. But I doubt that’s the case. The problem, I think, isn’t that he doesn’t grasp this distinction but rather that his awareness of it and his emphasis on it are situation dependent.

If you asked him what the legal difference is between Russian troops in Ukraine and American troops in, say, Somalia, he’d presumably give the correct answer: The Somalian government welcomes the troops and the Ukrainian government doesn’t. If you asked him what the legal difference is between Russian troops in Ukraine and US troops in Syria, he’d… probably pause before answering, because this isn’t the kind of question he’s in the habit of pondering.

This is the problem with the Blob more broadly: Its awareness of international law comes and goes, depending on whether citing it works in favor of the Blob-approved American policy in question. Have you even once heard anyone in the US foreign policy establishment suggest that maybe US troops in Syria are there illegally?

What’s worrying about McFaul’s Chechnya-Georgia-Syria-Ukraine tweet isn’t that he says anything inaccurate in it. All four of those operations can indeed be called “wars” (even though the Chechnyan conflict was inside Russia and was a war against separatists—like Ukraine’s eight-year war against separatists in the Donbass). What’s worrying is just that McFaul seems to be in the habit of lumping such different kinds of wars together, without distinguishing between the ones that the US can object to on legal grounds and the ones that—as a matter of law, at least—aren’t any of America’s business. His working definition of a war worth decrying seems to be a war undertaken by an adversary of America. And if that is the overriding criterion for objecting to wars—which it is for pretty much the whole Blob—these objections will collectively erode, not strengthen, the norm of complying with international law. (I don’t mean that McFaul can’t come up with plausible reasons to object to wars that aren’t illegal—like the brutality of the Chechnyan war or the Syrian war. The problem is that, like most people in the Blob, he doesn’t shower comparable opprobrium on the comparable sins of America’s friends and allies. This kind of inconsistency impedes the formation of coherent global norms.)

The selective attention to international law paid by national security elites is one reason the US so casually violates the law. Just to take two examples that particularly got under Putin’s skin: the Iraq invasion of 2003 and NATO’s bombing of Serbia on behalf of Kosovo separatists in 1999 (not to be confused with NATO’s intervention in Bosnia in 1995, which had Security Council authorization and so was legal).

Putin complained loudly about these kinds of things in a high-profile speech in Munich in 2007: “We are seeing a greater and greater disdain for the basic principles of international law… The United States has overstepped its national borders in every way.”

This wasn’t hypocritical; at that point Putin had never invaded a sovereign country. But the following year the Bush administration continued to do the other thing Putin complained about in that 2007 speech—sustain the thrust of NATO expansion, this time by putting Ukraine and Georgia on the future NATO membership list. Shortly thereafter, Putin’s uninvited military interventions began: Georgia in 2008, then Ukraine in 2014, and Ukraine again in 2022.

In  short: the world’s two nuclear superpowers have spent the last quarter century taking turns violating the international law against transborder aggression, with the US leading the way. One consequence is that the norm of abiding by that law is in tatters.

So, really, how much good would “reinforcing” the norm do right now? Raise its power from 17 to 20 on a scale of 100? Is that worth the cost—a years-long slaughterhouse of a war that would carry substantial risk of triggering a larger conflagration, maybe even a nuclear one?

It would be one thing if, through assiduous compliance with the law, and a bit of evangelizing about the importance of compliance, the US had used the post-Cold-War era to get that norm’s power way closer to 100. In that case defending the norm in Ukraine would have real value and failing to defend it would come at a steep price. But how much cost in blood and treasure—and existential risk—should be incurred to shore up an asset with so little current value?

And, to be clear (and at the risk of repeating myself): The Blob’s role in eroding this asset doesn’t lie only in support for illegal US wars. It lies, more broadly, in a lack of interest in the question of legality. For example: McFaul did (commendably) say some things in 1999 about the Kosovo intervention that could be construed as critical—namely, that it had stirred up anti-American nationalism in Russia. But it doesn’t seem to have occurred to him to note that the bombing was illegal. This kind of thing tends not to occur to people in the foreign policy establishment.  

It could be that staying the course in Ukraine can’t even move the needle from 17 to 20 on that scale of 100—even if there’s miraculous military success and Russian troops are somehow pushed completely out of the country, including Crimea. After all, the de facto “enforcer” of international law in this case would be the United States, since it would be the global power providing the lion’s share of the weapons, training, and intelligence that went into that success. And America’s violations of international law are so widely known (outside of America, I mean) that this act of enforcement wouldn’t have nearly the normative power it would have if the enforcer were a country that practiced what it preached. In much of the world this Ukrainian victory would be seen not as the upholding of international law but as the domination of an adversary by the world’s most powerful country—as just another victory in another American proxy war. 

In other words, glaring hypocrisy undermines your moral authority—which, in practical terms, means that your power as a norm enforcer weakens; the moral pronouncements you make, and the corresponding actions you take, carry less weight, in real terms, on the ground.

So the seeming indifference of national security elites to the illegality of American military actions—in Serbia, in Syria, wherever—carries a dual cost: The illegal interventions it abets not only weaken the global norm of compliance with the law but also reduce the power of America to restore those norms. American hypocrisy is a very expensive thing.

Maybe that’s why McFaul and his fellow Blobsters work so hard to generate smokescreens when anyone complains about that hypocrisy. Pointing to past American transgressions, they say, is “whataboutism.” And whataboutism, in their considered view, distracts us from the important business of upholding the “rules based order.”

They are the opposite of correct. Not until America dials down the hypocrisy will it be in a position to nurture respect for the rules, to meaningfully strengthen, in particular, the norm of complying with the law against invading sovereign countries. Meanwhile, taking our foreign policy cues from the people who have helped weaken that norm doesn’t make much sense—especially when the subject under discussion is how to avoid weakening it.

Photos: Dmitry Kozubenko of Russia and Volodymyrovych Dubrovka of Ukraine.