Drawing on their practical experience in the U.S. and abroad, three experts from Fordham’s Law School recently analyzed the ramifications of Russia’s invasion of Ukraine.
“We’ve really seen an attempt to rewrite the fundamental rules of international society. I think we have had a world order since 1945—as imperfect as it was—that kept the world, to some extent, reasonably safe … But when you hear a nuclear power talking about the possibility of using nuclear weapons in 2022, when you hear a sitting head of state threatening other European nations … You can see that the rules we used to believe applied to everybody have really been stretched,” said clinical law professor Paolo Galizzi.
In a Feb. 28 virtual panel moderated by law professors Jed Shugerman and Julie Suk, Galizzi joined Director of Fordham’s Center on National Security Karen J. Greenberg and Leitner Family Professor of International Law Thomas H. Lee to discuss America’s ability to de-escalate the international conflict and speculate how events could play out in the coming weeks.
What Can the U.S. Legally Do?
The three experts unanimously agreed that Russia had breached international law by invading Ukraine.
Lee said that in response, the U.S. may take actions that comply with both international law and U.S. law. Under international law, U.S. use of armed force would be permitted because Ukraine invited military intervention from other countries, including specifically a no-fly zone. But U.S. law is a separate matter. Under U.S. law, the President can use armed force to rescue U.S. or allied persons in Ukraine, but Congress may have to authorize other uses of armed force in Ukraine. This includes enforcing a no-fly zone, which may involve U.S. warplanes shooting down Russian warplanes. Under U.S. law, the president can also implement economic sanctions and provide weapons to Ukraine, both of which have already occurred.
Lee said that in theory, the U.S. may also conduct cyber operations that do not amount to “use of force.” There is a law called the covert-action statute that authorizes the President to make findings, report to some members of Congress, and take secret actions, including encouraging anti-Putin protests in Russia. However, the U.S. has likely not engaged in any covert operations to avoid escalating the dispute, said Lee.
“And, just as important, what would happen if Putin were ousted? What’s going to happen next in Russia?” he added.
Meanwhile, Volodymyr Zelenskyy, the sixth and current president of Ukraine, has been receiving positive attention, said Greenberg.
“He has become a hero worldwide, particularly to the younger generations. His phraseology, his way of responding to the people themselves is extraordinary, and I think he’s getting a tremendous amount of credit for it,” she said, adding that Zelenskyy, a former actor and comedian, has shown the world lessons in leadership.
A Shadow Over Historic Solidarity
Other countries have been stepping up in extraordinary ways, said the panelists. Lee noted that Germany, in an unprecedented move, recently announced that it would supply Ukraine with critical weapons. Galizzi said that he was positively surprised by the strong resolve of not only Germany, but normally neutral Switzerland and countries within the European Union and worldwide.
“This conflict has really touched upon European sensitivity in a way that I haven’t seen in a long time,” Galizzi said. “I think European public opinion seems to believe that this conflict is different—that this conflict is very dangerous, that this conflict really poses an existential threat to the very survival of the European ideals of democracy and identity.”
Panel moderator Julie Suk noted that Ukraine recently applied for membership in the European Union, which would give Ukraine more security. It’s a politically smart move, but it’s unlikely that Ukraine will soon receive admission, said Galizzi. The admission process usually requires years of negotiations and requires ratification by all 26 member states, he said.
“The European Union has been doing all sorts of things, exceptionally. They might give them emergency admission, but I truly believe this is simply not a realistic option in the short term,” he said.
In addition to requesting membership in the European Union, Ukraine’s desire for membership in NATO has been growing for some time now, said Greenberg. However, an ongoing conflict between Russia and NATO—and Putin’s insistence that NATO not expand—complicates potential admission. For Putin, admission to NATO is seen as a line in the sand, challenging Russia’s own security, said Greenberg.
“NATO forces have not been invoked yet in the way they may now be called upon—in other words, to interfere actively in defending member nations—although NATO stood at the ready after 9/11,” Greenberg said. “This is therefore a test of NATO, its purpose and its strength.”
Economic Sanctions vs. World War III
In a Q&A with the audience, law professor James Kainen asked the panelists about Putin’s motivation behind the invasion of Ukraine. Greenberg said that the answer goes beyond territorial disputes.
“He is very much living within a Cold War framework and a Cold War mindset, determined to not just necessarily rebuild what the Soviet Union’s empire was, but to really create this larger sense of the Soviet Union … When they write the history books about this, they’re going to go back through time and look at … the many times that Putin has tried to get away with something,” she said, noting Russia’s interference in U.S. elections and the 2014 Russian invasion that led to the annexation of Crimea. “He has been testing the international order … and Ukraine has been a central part of this story.”
At the heart of the debate is a fundamental question about nationalism and how we define ourselves, Greenberg added.
“The idea of who the Russian people are and how you define the Russian people, ethnically and nationally, is very much at the heart of how this debate is playing out: between Putin and Ukraine, between Russians in Russia and Russian-speaking people like President Volodymyr Zelenskyy who are in Ukraine,” Greenberg said. “And this is a conversation that the world is having globally, not about Russia, but about nationalism and ethnicity—about how we define ourselves and who defines who we are.”
Lee added, “He wants to make Russia great again—and to give the United States a black eye.”
Galizzi said that it is important for this war to not be seen as a conflict between the West and Russia, but rather as a conflict “between all law-abiding nations and a country that is violating all the basic tenets of international law.” (He referenced a recent resolution by the General Assembly of the United Nations, where 141 countries voted to condemn Russia’s invasion; there were only 35 abstentions and five votes against the resolution.)
The international community as a whole must continue to put pressure on Russia with legal strategies, said Galizzi. But he warned that the options are somewhat limited, considering that Russia has threatened nuclear warfare.
“We’re only limited in what we can do,” Galizzi said. “I think Biden put it very nicely: insider sanctions or the third world war.”