Russia’s invasion of Ukraine has raised numerous dilemmas for nations and the international community, a fact underlined by Professors Kristen Eichensehr and Paul B. Stephan ’77 of the University of Virginia School of Law, who spoke about the conflict at an online event Friday.
Eichensehr, the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law and director of the Law School’s National Security Law Center, writes and teaches about cybersecurity, foreign relations, international law and national security law. Stephan — the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor of Law — is a Russia expert who helped design the country’s tax system after the Cold War ended.
The event was sponsored by the UVA Law Federalist Society chapter, the John Bassett Moore Society of International Law, the National Security Law Forum, and Law, Innovation, Security, and Technology (LIST).
Here are highlights from the discussion.
Can international law address the illegality of the invasion?
Eichensehr: Regardless of how [the conflict] started, [international humanitarian law] is designed to apply even when the international system and international law has failed to avoid conflict as it has here. And there have already been reports of Russian strikes on civilian targets … . So even as things unfold, it’s important to be working to document war crimes, crimes against humanity, and to be looking forward to a day when hopefully the international system will bring perpetrators of those crimes to justice. …
Part of the reason that the illegality of Russia’s actions here is so clear is because of the actions the Biden administration has taken over the last few weeks to strategically declassify intelligence — so, the warnings that you’ve seen in the media about pretext and false flag operations that Russia would use to claim a justification for invading. The U.S. intel community has I think been proven extremely accurate in its forecast about Russia’s plans. And, at least in my opinion, that the Biden administration deserves a lot of credit for using those strategic disclosures to undermine Russian claims, and also to build unity among allies about the illegality of Russia’s actions and the need for a significant response. So there is no fig leaf of legality here for Putin to hide behind.
What does the invasion mean for the future of international law and international cooperation?
Eichensehr: It’s, I think, deeply unsettling that international institutions — the United States, NATO alliances — were unable to prevent this invasion from happening. The question that some are now asking is whether this is really the death knell for that system, for that version of international legal order that has reigned since World War II. …
I think it’s too early to say; I sincerely hope it’s not. Certainly the failure to deter the invasion and to prevent the invasion is a blow to that system. But there have been other blows before, and violations of law don’t mean that there is no law or that there is no purpose to the law. …
We’ve seen nearly uniform reaffirmation of the prohibition on the use of force — and I think greater unity among many countries — because of just how egregious Russia’s actions are, as well as a willingness and a unified willingness among a lot of countries to impose pretty costly sanctions. So I think that the verdict is still out on … the impact of this on the international legal system.
How could cyberattacks be the next front in the war?
Eichensehr: For years, Russia has used Ukraine as basically a test ground for cyberattacks. It attempted election interference in 2014, it shut off the power in Ukraine to Kyiv twice in 2015, and then again in 2016. It’s repeatedly launched destructive malware, plus its usual disinformation campaigns. And we’re seeing more of the same from Russia in the course of this conflict over the last month. …
I would expect for Ukraine all of that to continue in an effort to prevent Ukrainian government from communicating with its people and with the rest of the world, and to sow chaos and confusion in the midst of the invasion.
For countries outside of Ukraine, including the United States, there are two major types of cybersecurity concerns. The first is deliberate attacks by Russia on other countries and the second is spillover from attacks on Ukraine itself. … the one that I think is probably more likely is unintentional spillover from cyberattacks aimed at Ukraine. And the reason I think that’s more likely is that we’ve seen it before. So in 2017, Russia launched malware called Notpetya against Ukrainian systems and it didn’t stay in Ukraine. It boomeranged around the world and ended up causing $10 billion in damage.
Would the U.S. use force against a Russian cyberattack?
Eichensehr: There have been extraordinarily few cyber incidents that rise to the level of use of force or an armed attack. So I think that the bigger challenge for the United States and for other countries is how to deal with cyberattacks that fall below that threshold, which is where the … vast majority of cyberattacks have fallen. So things that … don’t look like bombs and missiles, right? They’re disruptive attacks, they’re wiper malware, that sort of thing.
What are Russia’s goals?
Stephan: I think the principal goal of the Russians at this stage is to return Ukraine to the status quo ante-2014 — that is to say, a government that asks Moscow first what it can do before it does anything of great international significance. That was the status of Ukraine for most of its independence. And the shift in its orientation, particularly in 2014, is seen by Russia as the product of gross and unacceptable American and European interference in Ukrainian domestic affairs. … Secondly, the goal I think, is to exploit what they perceive as weaknesses and disunity in the West, particularly Europe. …
The path that Russia has chosen is very dangerous. Russia is not in control of events and things could quickly get out of hand in a way that is harmful, not just to Ukraine, but blow back on everybody and affect everybody.
Why did Russia act now, and did it misjudge its hand?
Stephan: The annexation in 2014 set off a cycle of increased tensions between the two countries. And then I would add to that, that in the wake of the various crises in the last five years, there’s a growing perception on the part of Russians — correct or not — that the West and the United States are softer targets than they were even as recently as 2014, that they can get away with more, at least they’re willing to take that risk. So I think that’s why now, rather than any time before now, and yeah, it is interesting that they waited until the Olympics were over.
Eichensehr: I think that there are some signs that [Western alliance structures] have been frayed in the last couple of years, but I think perhaps Putin overestimated the extent to which that was true. … So I think perhaps if that was the plan, to exploit disunity, I think maybe Putin overplayed his hand.
Stephan: I would agree completely. And just very quickly, the thing to watch is when — if — the Nord Stream [natural gas pipeline] pause is called off. The longer the Germans hold fast, the greater hope one can have for the efforts the Biden administration are undertaking.
Will the sanctions be effective?
Stephan: I’m just not sure what personal sanctions on Putin mean after the interference in the 2016 election. We did target people around Putin — people who we thought were his wealth bearers — overseas. So, I mean, we could go further down that line. If we sanction him as a head of state — try to restrict his movement, for example — that is complicated. I mean, we could do it, but there would be pushback to say the least. I worry that people personalize this conflict. It’s, you know, “Putin the madman” paradigm; Putin, the anomaly as a Russian leader. … When we see people on the streets of Russian cities protesting this invasion, we’re looking at hundreds of people. We’re not looking at millions. And if we look back at what happened in 2014, [many Russian leaders, like Alexei Navalny and Mikhail Gorbachev] ... all endorsed the annexation of Crimea.
Eichensehr: Obviously the sanctions are intended in various ways to put pressure on the Russian government [and] the Russian economy — to squeeze Russia in various ways to as punishment for the invasion. And I think that all makes sense, but part of what’s been interesting to watch this week is the extent to which, you know — taking Paul’s caution about not personalizing the conflict — I’m not sure where the other power centers are in Russia right now. Like who are we expecting to stand up to Putin and pressure him to change his mind? If indeed this is a personal decision and he’s the one driving the policy, then we need to have some sort of idea of who the counterparts are who have influence with him, who can change his mind and get him to back off. Now, that’s one, that’s the sanctions as coercive and attempting to coerce a change of policy. It’s also possible they’re just punitive. I guess I don’t have a lot of clarity at the moment about whose minds the United States is hoping to change, whether it’s Putin or whether it’s some of the Russian elites who are also being targeted by these individualized sanctions.
Stephan: The three maximalist sanctions that we could impose, are A: detachment from the SWIFT system, which would isolate Russian banking or more precisely require them to work through China and cryptocurrency, which would be costly [this happened with some Russian banks over the weekend]; B: going after everything connected with the oligarchs and the pyramid of corruption with Putin at its peak, which would involve expelling all these kids from Eaton and other English boarding schools, taking back their soccer teams and real estate holdings in England, and comparable measures in New York and LA as well. And then thirdly, trying to erect a multilateral boycott of their energy products. Because ultimately their economy depends on energy. I think that it would require really inspiring leadership and a great deal of the spirit of sacrifice and resilience on the part of the U.S. and Europe to do that, because those will hurt us a lot. It will hurt them more, but it will hurt us a lot. And part of the Russian attitude is … you guys don’t know anything about deprivation and suffering. We can always out-suffer you.
Considering how China views Taiwan similarly to how Russia views Ukraine, what does the conflict mean for China and Taiwan, and relations between Russia and China?
Stephan: I think Taiwan is a far more serious concern to the United States. It implicates our national interest far more greatly than Ukraine, and therefore we should be more concerned about how our response to the current crisis might affect Chinese perceptions, even though I don’t think the legal tools are the same in framing the Taiwan-Chinese conflict.
Eichensehr: While [Chinese and Russian] interests are aligned, that’s problematic. … The [short-term] relationship between China and Russia could blunt the impact of the sanctions that the United States and its allies are attempting to impose on Russia.
China could help Russia evade those sanctions in some ways. And you know, obviously the atmospherics of this — the Biden administration was attempting, as the Obama administration had, to effectuate a kind of pivot to Asia and views China as the longer-term, more important strategic threat to the United States — but once again, the United States is now distracted, right? In 2014, it was distraction with respect to the Middle East and ISIS. Now it’s distraction with respect to Russia and Ukraine. So there is a problem here that the United States does not seem to be driving policy and every time it tries, it gets pulled into a conflict it didn’t intend to focus on.
Will Russia seek to absorb other former Soviet territories?
Stephan: I would say that anything is possible. But I would be surprised if over the short term, aggression goes in other directions, but events can get out of control. … I don’t think it’s in the short-term plans of the Russians, although they’re open to opportunities if they arise.
Eichensehr: I’m very worried about the risk of accidentally going off the rails here. … There’s a question about deliberate strategy and then there’s a question about accidental escalation and, as between the two, I’m more concerned about the latter.
Can Russia be removed from the U.N. National Security Council?
Eichensehr: So the answer to that is no. … [However] there is a provision in the U.N. General Assembly resolution that established the Human Rights Council for removing or suspending members. I think with the two-thirds vote of the general assembly, if they engage in gross and systemic human rights abuses. So the Human Rights Council is not the Security Council, but there may be sort of punishment coming in various forms within the United Nations. … But there’s no way I know of to get them off the Security Council.
Is there cause for concern about Russia and misinformation?
Eichensehr: I would fully expect Russia to continue engaging in disinformation campaigns. I mean, we’ve seen that in their official statements of late, so it’s not exactly masked and, you know, I think the question is really how effective will those be? It’s something that has caught the United States off guard in the past, particularly with respect to the 2016 election. I don’t think anybody’s going to be caught particularly off guard at this point. Russia is using disinformation campaigns to sow chaos, to stoke divisions, but this is something it’s been doing in the United States and other places, including Ukraine, for a number of years, so I think it will continue. I think people are better prepared for it now. So how much of an effect it will have? I’m not sure.
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