Lift sanctions so Russia withdraws from Ukraine? No, increase them! writes Victor Rud

Not long ago, America's National Public Radio's website published an Op-ed by three former U.S. ambassadors to Ukraine, William B. Taylor, Steven Pifer and John E. Herbst. "The COVID-19 crisis could present an unexpected opportunity both to resolve the only hot war in Europe and to address...Putin's assault on international norms of behaviour." writes Victor Rud.

The authors argue that (a) Western sanctions have depressed Russia's annual economic growth by 1%, and that (b) the drop in the price of oil and the pandemic mean that "now more than ever Russia needs a break from sanctions." Add that "the looming global recession will deliver another blow to the Russian economy." They propose removing sanctions for Russia's invasion of Ukraine's Donbas region if Putin withdraws, and see the essentials of the deal as having already been set in the so-called Minsk negotiations.

The authors are dedicated professionals who understand Ukraine's pivotal role in securing one of the foremost foreign policy and global security goals for the United States and the West, generally. That goal is to re-stitch 75 years of the rules-based international order that Russia shredded by its invasion, annexation and now seventh year of occupation of Ukrainian territory: the sovereignty of nations, territorial integrity, the inviolability of borders, the rule of law. Unfortunately, unless it is restructured, the ambassadors' proposal paradoxically would be counterproductive. Furthermore, to compel Russia's withdrawal from Ukraine, sanctions against Russia must be increased. This will also send a clear message to China and other tyrannical regimes that hold their populations in thrall, that are terrified of them, and that see Western Democracies as so much prey.

Preliminarily, it is telling that the proposal comes from the U.S. side, and not from a repentant Russia as the aggressor and war criminal under international law. (Putin's calls for sanctions relief - without withdrawal - are addressed below.)

Though not an entirely parallel situation, as a U.S. initiative the proposal harkens back to the Obama Administration's infamous "reset" initiative, only months after Putin invaded Georgia, his trial balloon for Ukraine. Washington sought him out, not the other way around. What was the message? Though "who was first" in making an overture seems a minor point, it reinforces an algorithm that, long before Putin, the Kremlin had written for its psy-ops against America. Washington's after-the-fact attempt to resolve crises that the Kremlin either caused or exploited has been a predictable pattern. Our DNA is to manage, to "stabilize," to compromise. The action initiative is Russia's. The response initiative is ours. Putin has applied that algorithm with aplomb. He will do so again to subvert the proposal, even if the other concerns, discussed below, are addressed. This, of course, does not mean that the West should never take the initiative in making a proposal, but this is not the time to do so. Putin can deduce, well enough, what he has to do to have sanctions lifted.

Substantively, the cardinal shortcoming of the proposal is its cursory treatment of Crimea, where existing sanctions would also be lifted "if Putin is willing to withdraw" from that Ukrainian territory, as well. Paradoxically, those sanctions remain even more flaccid than those imposed after Russia's ensuing invasion of Ukraine's East. Why are vessels docking at Crimean ports allowed access to Western ports? Paradoxically, as well, it was the proposal's oblique reference to Crimea that fired Kremlin's invective. Elevating intellectual deceit to the heroic, Putin's spokesman, Dmitry Peskov said, “Crimea is part of the Russian Federation, with all the consequences this entails. Russia doesn’t have to leave Donbas soil since it had never entered there.” Others in the priesthood ascribed "dementia" to the authors who were confusing "fantasy and reality." The ambassadors should be rather proud of the vituperation.

Though the proposal addresses Crimea only in passing, Russia's annexation of the peninsula is in several respects even the bigger transgression against international law. Merely "stopping the war in Donbas" will not restore the international order, redeem international law, or recoup our reputational catastrophe if Crimea remains under Russian occupation without increasing sanctions that would be at least commensurate with the international crime. It would only reinforce the chasm between Western word and deed so evident in the vacuous condemnations following Putin's free ride and occupation in Georgia. It was Western fecklessness that joined in that disaster. Four months after that invasion and three months before the "reset," former Secretary of State Condoleezza Rice assured: “Everybody is now questioning Russia’s worthiness as a partner. They’ve come out of this badly. And I think it could help deter them from trying something like that again.”

Without radically increased Crimean sanctions, the lifting of sanctions for Russian withdrawal from Donbas would be understood by the world as a Western quid pro quo, with Crimea traded for Russia's withdrawal from territory it had no right to invade in the first place. This means that Russia's annexation of Crimea would remain without consequence. We ourselves will then have abetted the very "assault on international norms of behavior" that the proposal seeks to address. We will have institutionalized its opposite purpose - "a world governed by laws rather than by force of arms." Such a disaster can easily come to pass. "It is incompatible with the rules of the existing world order for Russia to annex Crimea," intoned Henry Kissinger, delicately parsing his minimalist terminology - merely "incompatible." He then told President-Elect Trump to accept Russia's conquest. (How has Mr. Kissinger's "let's open China" worked out?)

Crimea aside, that it was not Putin who made the proposal raises an inescapable question about the proposal's underlying thesis: It is "a costly war...[that] continues to damage Russian interests." A "withdrawal agreement would free up resources in...Russia...to fight the virus." Under such circumstances, we would have expected that Putin would have made the overture himself. But he didn't because the proposal ascribes to Russia behavioral norms endemic to the West but that have no application to him. Why did he organize a Praetorian Guard of several hundred thousand troops?

As proof of pain the authors cite Putin's speech to the Group of 20 calling on a halt to international sanctions in light of the pandemic. The authors see this as confirming that "Russia needs a break from sanctions." But (a) Putin railed against all international sanctions, generally, and not just those imposed because of his Donbas invasion. (b) This would have included sanctions imposed on Iran and North Korea. And (c), he manifestly did not offer to withdraw from Ukraine or to cease his international marauding. He simply played sanction relief as a "humanitarian issue."

The proposal also assumes that Western sanctions have been impactful, citing a slowing in Russia's economic growth (not absolute GNP reduction) of some 1%. But the fortuity of both circumstances (the pandemic and fall in oil prices) and that they have to coalesce in order to support the authors' argument only underscores the weakness of the sanctions. Both circumstances are wholly extraneous, and dwarf the annoyance of the sanctions. Putin long ago adjusted to sanctions, has anticipated a drop in oil prices, and still has significant dollar reserves. Indeed, the pandemic and oil price drop make sanctions relief less, not more, consequential. What does the removal of a leaf in a forest fire achieve?

The systemic weakness of Western sanctions is scarcely understood. On the eve of Russia's long-planned invasion of Ukraine, President Obama's NSC advisor Susan Rice warned that invading Ukraine "would be grave mistake." What were the consequences? Sanctions were minimal until the body parts of 283 passengers and 15 crew members of Malaysia Flight 17 showered the Ukrainian countryside on July 17, 2014, almost half a year after Russia's invasion. (FSB Colonel General Andrey Burlaka was recently identified as a key player in that crime). This does not, however, at all, reflect on the efforts of such dedicated professionals in the Administration at the time as Ambassador Daniel Fried and Deputy Secretaries of Defense Michael Carpenter and Evelyn Farkas. They argued for a stronger American response, but the chain of command prevailed.

Despite sanctions and until recently, Russia's GDP grew at the fastest rate in six years, in February 2019, Moody's upgrading Russia's sovereign debt to Investment Grade. In the first quarter of 2019, foreign investors bought over half of Russia's debt, and the ruble and stock market were both among the top performers. I wrote last year, "After four full years of sanctions Russia’s GNP grew 1.5%, more than Germany (1.1%), Italy (0.7%) and France (1.4%). Germany’s investment in Russia is at a 10 year high, and French/Russia trade increased last year by 11%. The Russian market is up 21%, back to pre-sanction levels, and its sovereign debt is oversold. And not a single major Russian bank has been sanctioned after more than half a decade. Putin knows that Russia’s money in our financial institutions is secure."

How much greater a violation by Russia must there have been to merit the imposition of truly consequential costs? The largest country in the world invades the largest country in Europe, the target's independence having ensured the demise of the "evil empire" and our "winning the Cold War."

How did our sanctions at the time compare to the $50 billion that Putin spent on the Sochi Olympics extravaganza? What have been our sanctions against North Korea? Given the enormity of Russia's international crime, how can those sanctions amount to but 10% of the consequences of those imposed on Iran? Iran is a nuclear wannabee, whereas Ukraine was compelled to surrender - to Russia - an existing, massive nuclear arsenal: 176 ICBM’s armed with 1,240 nuclear warheads, 44 strategic bombers armed with 1081 nuclear-tipped cruise missiles, and an unspecified number of tactical nuclear warheads. That imploded a correspondingly massive industrial complex, complete with the world's largest ICBM plant. Western sanctions remain a bargain price for the benefits accrued to Putin by his invasion of Ukraine, and then the multiplier effect, globally.

Flaccid sanctions confirm Western lack of resolve and failure of political will. An annual drop of 1% in Russia's annual GNP growth has not translated to the ground. We do not know as a fact that the prospect of greater sanctions in the event of further maleficence has tempered Russia's calculus. It is reasonable to so assume, at least in certain cases. But that remains in the realm of surmise, speculation, and conjecture. However, we do know as a fact that, despite sanctions, Russia's international mayhem has increased exponentially...and Putin has succeeded extravagantly in ensuring, as he boasted, that "the American system is cannibalizing itself."

Furthermore, internal stresses caused by the pandemic and the drop in oil prices are hardly tempering Russia's aggression. Internationally, now is precisely the kind of destabilizing environment that Russia has thrived on. It is simply another battlefield. In the Kremlin's mouthpiece, Izvestia, the title "Coronavirus Instead of War" says it all. "The pandemic," wrote Dmitry Suslov, "has not softened the [international] confrontation, but has become one of its arenas."

This is not the conduct of someone who has been chastised. This is the conduct of someone who feels empowered and whose predation has been "sanctioned," as in "approved." The bright spot is U.S. sanctions imposed last December against Nord Stream 2, stalling pipeline construction 160 kilometers short. Putin has since doubled down, and the end result is indeterminate.

To be sure, as the proposal states, Putin wants sanctions removed but he doesn't even intimate withdrawal from Donbas. Why should he surrender his crowbar over Ukraine, using it as a fulcrum against the West? If, as the authors write, "the war continues to damage Russian interests," Putin would long ago have ended it or not invaded in the first place. Sanctions relief will not allow Putin to write a check to the populace sufficient to overcome his perceived loss of standing in Russia as the omnipotent vozhd. That imagery is already being compromised, and the last thing he will do after six years in Donbas is to put on his shirt and put his horse in reverse. The pandemic and falling oil prices thus are not leveraging the utility of sanction relief, as the ambassadors argue, but are having the opposite effect. They are leveraging the damage to Putin if he withdraws from Ukraine as the price of that minimal relief. Sanctions must be increased, exponentially, for cause and effect to work. Only then can Putin bask in the penumbra of his role model, the Great Sun.

The proposal is also inexplicably silent about Russia's liability under international law for six years of war crimes and crimes against humanity, ecological catastrophes, plunder of industrial and other assets, reparations, de-mining of the most dangerous real estate on earth, resettlement of almost 2 million refugees, and economic reconstruction. Without penalty, what is the international order and rule of law all about? It would be as if a serial criminal invaded a household, killed the family, destroyed the home, then is assured he will not be punished if he will only depart, leaving corpses and a burned out shell. Instead of resolving "the only hot war in Europe," such result would only catalyze more wars, in Europe and globally. It would be the coup de grace for the very "international norms of behavior" that the authors wish to address. As it is, we are already careening into a credibility sinkhole, energizing a cabal of Beijing, Tehran, Pyongyang and Caracas.

The authors' endorsement of the "Minsk negotiations" as setting forth "the essentials of a deal" is disappointing, and backs into Putin's pretense for invasion. "Minsk" means Putin's dramaturgy of non-existent discrimination against "Russian speakers" - local elections in Ukraine, a change to Ukraine's constitution, federalization. Why? Who dictates such things to a sovereign country? (Sooner that Ukraine, with full international backing, make the corresponding demands of Russia, including the return of Ukraine's historic territories still occupied by Russia.)

To their credit, the ambassadors do not describe the Minsk negotiations as an international "agreement or treaty," which they are not. They are a record or protocol of consultations. If the record was intended to be binding as an agreement or treaty, it could never have been binding on Ukraine as it was signed under coercion and therefore void under international law. Furthermore, it was never ratified by the Ukrainian Parliament. Even if we were to posit an initial binding effect, the terms were repeatedly breached by Russia, relieving Ukraine of any otherwise obligation. All this, however, is irrelevant. The termination date passed years ago.

All the more reason to understand that "Minsk" was and today remains an enormously effective Russian shell game, ensnaring the West to increase its pressure against the victim while insulating the aggressor, thereby institutionalizing the aggression. "Western Democracy" is driven by its compulsion to "return to business as usual" with Russia, and to latch on to some argument, any argument. Minsk is the West's escape pod from reality. It's implementation will memorialize the final, vertiginous collapse of the vaunted "international order."

The proposal concludes that if sanctions are removed and Russia reneges on an implementing agreement, they would be re-imposed. Breach is a given. Our mercantile culture depends on reason, and assumes compromise. That, in turn, requires restraint. We are hard wired to approach international agreements as we do domestic ones: as solutions to problems, not as their cause; as resolutions of conflict, not as their catalyst; as enforceable paths forward, not as highways for reversal. We’re hypnotized with “doing the deal.” But deal making with Russia does not work. Restraint is not its calling card. Moscow has already violated (innumerable times) the UN Charter, the Budapest Memorandum, the Helsinki Final Act, the Paris Charter and other multi-lateral and bilateral agreements.

Six years of Western sanctions against Russia have only raised the trajectory of Russia's maleficence, both in Ukraine and globally. The West (30 countries in NATO, alone) has been outplayed, outsmarted and outmaneuvered, not only in Ukraine but elsewhere in Europe, the Middle East, Latin America, Africa and the Arctic. Each new outrage is increasingly less shocking. A "new normal" is a weekly event. Even Nord Stream sanctions, though for now stopping construction, have not stopped Russian aggression. Additional Nord Stream related sanctions being considered in Congress will not accomplish that, either

Point by point “cost imposing” measures against Russia have not worked, reducing many sanctions to so much political theatre. Europe is capitulating. The United States must exercise the global primacy that it still retains financially, and impose full financial blocking sanctions, as a minimum. This includes removing Russia from SWIFT. Western savants recoil, expressing angst about the impact on Western economies. Evidently it is still not understood that, under international law, the economic cost to countries that sanction an armed aggressor are internationally cognizable claims against that aggressor.

Ultimately, sanctions are but a tool, the economic expression of political will . . . or of its ignoble demise. Without a goal there is no policy, without a policy there is no strategy, and without a strategy there can be no effective tools or tactics. Within the broader context of recouping the international rule of law, our goal must be to turn Putin inward to address the massive endemic problems that the Russian "Federation" faces internally, and especially as an imperial construct of dozens of long suppressed non-Russian nations. In that context, and even without, lifting sanctions to prompt Russian withdrawal only from Ukraine's Donbas region is the last thing we should do. Increase sanctions, and keep increasing them. Will we do that? Of course not. The White House has renewed championing an unrepentant, increasingly contemptuous KGB Colonel back to the G7. Afterall, he had solemnly intoned in his interview with Oliver Stone, “We have to stick to certain rules. Otherwise international relations cannot be built.” So why not also withdraw U.S. troops from Germany? Will a Russian assault on those rules ensuring America's national sovereignty in the Bering Sea across from Alaska perhaps be a wake-up call? Don't count on it.

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Victor Rud

Victor Rud

Victor Rud has practiced international law for 35 years, and before the fall of the Soviet Union represented, in the West, political prisoners persecuted by the KGB. He also served as Special Counsel to a member of the US Delegation to the Madrid Review Conference on Security & Cooperation in Europe ("Helsinki Accords").

His commentary has been carried, among others, by Forbes, Kyiv Post, Foreign Policy Association, Defense Report, Atlantic Council, Centre for Global Strategy, and EuromaidanPress.

Victor is Senior Advisor to Open Court, an NGO in Ukraine, and was the keynote speaker at the first L'viv Security Forum.

He is the founder and past Chairman of the Ukrainian American Bar Association, and currently chairs its Committee on Foreign Affairs. He received his undergraduate degree in international relations from Harvard College, and his law degree from Duke University.

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