2013 Sasha Mordovets

In times of regional violence, local rules apply

Neither international law nor unilateral force will solve the crises in Ukraine and the Middle East

September 3, 2014 6:00AM ET

International relations appear increasingly to involve violence. Russia invades Ukraine; Israel invades Gaza; and the Islamic State appears to be invading everyone in the Middle East. We read of downed aircraft, bombed schools and beheadings. But violence is not always synonymous with chaos. Understanding the sources of violence and restraint in its use is a necessary part of statecraft.

One of the remarkable facts about political violence over the last 50 years has been that the most powerful do not always get their way. Even states with vast capacities to do violence will often exercise restraint by following rules. These rules are not found in the formal conventions of international law. They are not imposed from the outside but evolve through action and response by the parties to the conflict. The best example of this may be the Cold War, where adherence to rules was a necessary condition for avoiding nuclear disaster. The Israel-Palestine conflict has much the same character: It has gone on for decades with relatively low levels of casualties — at least compared to conflicts in neighboring states — because there have been rules. When there are no rules or the rules break down, chaos, such as Syria’s civil war, can quickly arise.

While legal rules apply equally to all parties, local rules of conflict do not have this symmetry. It is as if each side is given a different hand from which it can play. For example, Israel and the Palestinians do not operate by the same rules. Israel is more destructive, but far more rule-bound. It sends out notices; it uses missiles “to knock” before a building is destroyed; it has made targeting a juridical process. It can no longer choose to act otherwise; it has bound itself by these rules.

Hamas is not bound by the same rules of targeting. It uses rockets that cannot discriminate, but that are generally far less destructive than Israel’s weapons. Israel has generally accepted that this is the military means available to its foe. When Hamas introduced invasion through tunnels, however, it broke the rules. Israel set as a goal the destruction of all the tunnels, while it has not sought to eliminate all the rockets. Israel would not tolerate stabilization around a new rule that has Hamas using tunnels.   

Or take the current efforts to control Iran’s nuclear capacity. No single set of rules determines whether it is “lawful” for a country to have nuclear weapons. Israel has the bomb; Iran does not. That is not a determination of law, but of politics and history. The question for negotiation right now is whether politics can determine an acceptable set of rules for all the parties with an interest in Iran’s nuclear program. In the absence of such rules, there will be violence, which will eventually stabilize around a set of rules.  

The West is not going to go to war to save Ukraine. That means we may have to live with Putin’s rules.

Ukraine too has become the site of a conflict over local rules. Russian President Vladimir Putin is telling the world that whatever it might have thought the rules were in Europe, it was wrong. If we thought that a European sovereign state was one whose borders were respected and in which conflict is resolved through political compromise and the rule of law, we were wrong. If we thought that international law protected a state from force or the threat of force, we were wrong. The rules, according to Putin, begin with recognition of spheres of influence. Within that sphere, order will be dictated by the more powerful, and failure to comply will be met by force.

Putin insists that within the Russian sphere, no one will determine his course of action. These “proposed” rules are entirely familiar. Recall the American response in 1962 to Soviet missiles in Cuba, or American interventions in Central America during the Cold War. Putin’s rules look a good deal like the rules of President Ronald Reagan or Soviet General Secretary Leonid Brezhnev. They are the rules that the powerful follow when they think that global politics is fundamentally a matter of conflict. These are the same rules that the Chinese may move to establish against its neighbors in the East China Sea and South China Sea — what the Chinese regard as their sphere.

The Cold War rules were full of subtlety: One could arm opposition groups, but not too much; one could support proxies, but not send the national military; one could share intelligence, but there were additional rules on espionage; different rules applied to regions close to home. We may need to dust off the old rule book.

The Ukrainians, of course, disagree that these are the rules, but what can they do about it? (Perhaps they can do a lot — as the Soviets learned when they tried to follow these rules in Afghanistan.) For now, however, given the relative strength of Russia and Ukraine, the question is what the West will do about it. Will the old Cold War rules again govern spheres of influence? The West can accuse the Russians of violating international law, but the rules that count once the violence begins are local, not universal. When the United States violently intervened in Nicaragua, the Nicaraguans took the United States to the International Court of Justice. The United States walked away from the court. The Russians would do the same in response to any legal proceeding. Indeed, despite the threats of the Palestinians to take Israel to the International Court of Justice, they too should remember the limits of law. 

Where then does this leave us? Pretty much where we have been at least since Thucydides’ account of the ancient Athenians ordering the Melians to submit or die: Small states are at risk from the large. Values matter in politics, but having the right values hardly guarantees success. Strategy is still more important than principle. President Barack Obama is wise to take as the guiding principle of American foreign policy, “Don’t do stupid things.” Successful foreign policy requires situation-specific judgments and attention to the local rules that Americans cannot set unilaterally.  

The West is not going to go to war to save Ukraine. That means we may have to live with Putin’s rules. If that is the future, we need to stop thinking about sanctions, as if economic pressure will lead Russia to reconsider. Putin’s reconsideration of the post-Cold War settlement has been long in the making. Nor will it change anything to send some NATO forces to the border, since all sides accept the rule against direct conflict between nuclear states. There needs instead to be a fundamental rethinking of relations of dependence once globalization gives way to spheres of influence.

Paul W. Kahn is the Robert W. Winner professor of law and the humanities and the director of the Orville H. Schell Jr. Center for International Human Rights at Yale Law School. His tenth book, “Making the Case: The Art of the Judicial Opinion,” will be published this spring by Yale University Press.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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