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Prof. Claire Finkelstein discusses Ukraine NATO membership as well as U.S. ethical, legal, and cybersecurity concerns

February 25, 2022

Finkelstein is a renowned expert in national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, recently shared her insights on Russian President Vladimir Putin’s invasion of Ukraine.

Finkelstein is the founder and faculty director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania’s Annenberg Public Policy Center (APPC). She is a distinguished research fellow at APPC and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

Office of Communications: Can you share some general observations about the current situation in Ukraine?

Finkelstein: As the extent of Putin’s ambitions become clear, it should be evident that Russia has been planning a total takeover of Ukraine for a long, long time. Ancillary goals, such as the weakening of NATO, should be understood in the context of his ambition to take over Ukraine. His great fear was that Ukraine would join NATO and that NATO would therefore respond with force once Russia invaded Ukraine. But he gambled that the West would not respond with military force to his attempts to annex all of Ukraine, a bet that thus far Putin is winning. He learned from the takeover of Crimea that though there may be bloodshed, in the end he can prevail. Crimea was the staging ground for the current takeover, and his experimentation with techniques such as cyber and Denial of Service attacks, as well as propaganda, etc., are being replicated here with a vengeance.

While Putin is so far winning the bet that NATO would not engage militarily, he is thus far losing the war he started. The fierceness, discipline, and determination of the Ukrainian military, the outpouring of international support for Ukraine, and the strength of NATO sanctions against Russia were all factors that Putin may have underestimated in his decision to invade Ukraine. It is a major question, however, whether Ukrainian resistance will hold in the face of the continued insistence on the part of NATO countries that they will not engage militarily in the conflict.

For the past several years, commentators have analyzed Putin’s actions as explained by his determination to dismantle NATO. It now appears that weakening or destroying NATO was only intended to be a means to an end. Weakening NATO was simply designed to facilitate this goal, so that NATO would not interfere with Putin’s plans.

Office of Communications: What should the international community do now?

Finkelstein:

  • Vote Ukraine into NATO immediately, despite the implications that it might have regarding intervention.
  • Increase NATO troop presence along Ukraine’s border.
  • Bar Russia and Russian banks entirely from the international SWIFT system.
  • Expel all Russian diplomats from all NATO countries.
  • Increase funding to Ukraine for military supplies.
  • Increase and update military equipment and weapons supplies to Ukraine.
  • Step up the targeting of assets and personal property of Russian oligarchs – Freeze bank accounts, seize assets, yachts, etc. This should be accomplished in the U.S. through a robust law enforcement effort as well as though foreign intelligence collection to help trace U.S. persons’ communications with foreign sources.
  • Explore cyber measures to disrupt Russian communications and supply lines.
  • Engage in a robust communications campaign to disabuse Russian troops of disinformation they may have acquired regarding their mission and to convince them to put down arms.

Office of Communications: Can you speak to some of the U.S. government’s ethical and legal concerns?

Finkelstein: There are several critical concerns that my suggestions should not be taken as in any way minimizing. First and foremost, Russia’s official military doctrine endorses the use of “tactical” nuclear weapons on a first-strike basis. This means that if Russia felt it was losing the conventional war, it would regard itself as entitled to launch a tactical nuclear attack on Ukraine. Needless to say such a course of action seems highly unlikely, no matter how irrational Putin’s current course of action may appear to be. Since Russia wants to occupy Ukraine, it is not in Russia’s interest to inflict on it the kind of damage that the U.S. inflicted on Hiroshima and Nagasaki during the Second World War.

More realistically, the Biden administration is, accordingly to news reports, debating the ethics and legality of arming and training the Ukrainians. Any reason to doubt the probity of this step should lie only in policy, not in law. It is beyond question that Russian is conducting an illegal attack on a sovereign member of the United Nations, and under Article 51 of the UN Charter, Ukraine is entitled to defend itself. Any other country, moreover, is entitled under the doctrine of collective self-defense to come to the defense of Ukraine to help it repel its wrongful attackers and occupiers. The U.S. and NATO are thereby entitled to assert the self-defensive rights of Ukraine. This does not depend in any way on Ukrainian membership in NATO, which as of now it lacks.

The possible worry of the Biden administration, however, may be that by assisting Ukraine, the U.S. may be directly participating in hostilities (DPH) and may thus forfeit its formal neutrality and entitle Russia to respond with force to U.S. military installations. The same might be said for any attempt to use cyber, dazzle Russian satellites, or otherwise interfere with Russian navigation and ground troop movement. These considerations may be playing a role in debates about how far the U.S. and its NATO allies feel they can go to intervene on Ukraine’s behalf.

However, the question of when other individuals and countries can be seen as participating in hostilities is not at all clear under international law, and the DPH analysis is subject to a sliding scale. At one end of the scale, imposing sanctions would not make the U.S. co-combatants or co-belligerents. At the other end, taking up arms in defense of Ukraine would. Somewhere in between there is a tipping point, and when we are dealing with the hybridized techniques of modern day warfare, especially against the Russians who are masters of such techniques, the location of that tipping point is not clear.

It is important to bear in mind, however, that the point at which the U.S. would make itself targetable and the point at which the Russians would see themselves as entitled to attack U.S. persons involved in the defense of Ukraine may not be the same. Russia is not looking to draw the U.S. or other NATO allies into the war. It is looking to keep them out. Therefore, it is likely that Russia will turn a blind eye to U.S. involvement, were the U.S. to engage by offering weapons and training to Ukrainians.

Office of Communications: Can you expand upon the types of techniques that could be used to attack the Russians in cyber?

Finkelstein: As the Russians have taught us, there is a great deal that can be done at the level of cyber that fails to rise to the level of use of force. Such measures would include bombarding Russian troops with anti-invasion propaganda, interfering with Russian cyber operations and communications, jamming Russian satellites to interfere with navigation and troop movements, assisting the Ukrainians with defensive cyber operations to help them maintain their energy grid and communications, and more. The critical question is whether the U.S. and its NATO allies should be afraid that use of such techniques would legally and practically constitute participation in hostilities such that we would make ourselves legitimately targetable by Russia. A further question, of course, is to what extent we should avoid placing ourselves in the line of fire. As of this moment, Ukrainian forces are managing to maintain control of the country’s major cities, and from what we know, Russian casualties far outweigh Ukrainian loss of life. But what if the Ukrainian forces can no longer hold the line? Should NATO truly stand by and watch Ukraine fall? It might be worth risking Russian aggression at the margins if Ukraine’s survival – and the security of all of Europe with it – is truly in doubt.

Follow Finkelstein on Twitter @COFinkelstein.

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