Kerch Strait Incident and International Law: opinions of Ben Hodges and Lucan Way

Hello and welcome to a new episode of Ukraine Calling. I’m Bohdan Nahaylo for Hromadske Radio in Kyiv. Tensions were high in Ukraine this week after Russia attacked Ukrainian ships in the Kerch Strait, captured vessels, took more Ukrainians prisoner, and Ukraine declared martial law. To help understand what happened and what this means Marta Dyczok spoke to a military expert and political scientist. Our feature interview this week is with Lieutenant General Ben Hodges, former commander of US Forces in Europe now analyst in Washington think tank CEPA, The Center for European Policy Analysis, and University of Toronto’s Professor Lucan Way.

FEATURE INTERVIEW: MARTA DYCZOK SPEAKS TO FORMER COMMANDER OF US FORCES IN EUROPE BEN HODGES AND POLITICAL SCIENTIST LUCAN WAY

Dyczok: On Sunday 25 November 2018 Ukraine hit the international headlines again. Media begin reporting that there had been a ‘confrontation’ between Russian and Ukrainian forces in the Kerch Strait. That’s a small passageway between the Black Sea and the Azov Sea. And also that Ukraine was preparing to introduce martial law in response.

To help us understand what happened and what the implications are we have two experts with us today: Lieutenant General Ben Hodges, a retired United States Army officer who served as commanding general of the United States Army in Europe (USAREUR). Currently he is the Pershing Chair in Strategic Studies at the Center for European Policy Analysis in Washington DC. We reached him in Berlin, where he is attending the Berlin Security Conference.

Professor Lucan Way teaches Political Science at the University of Toronto. He is an expert on Ukraine and Co-Director of the Petro Jacyk Program for the Study of Contemporary Ukraine. We reached him in Toronto.

Gentlemen, thank you very much for finding the time to speak to us.

I’d like to start with what happened and the military/international side of things, and then move onto the Ukrainian response. Lieutenant General Hodges, let’s start with you.

We live in the age of information warfare and deliberate disinformation. Russia has accused Ukraine in provoking an incident. Three Ukrainian ships were attacked by Russian vessels, 24 Ukrainian sailors were taken prisoners. As a retired US Army commander, a military expert and analyst, is there any question in your mind about what happened in Kerch Strait on Sunday, November 25? What is your assessment of the situation?

Hodges: First, this is entirely predictable. This is classic Russian use of warfare to try to twist interpretations on international law. The entire world agreed that annexation of Crimea was illegal and now to claim that Ukrainian naval vessels violated Russian territorial waters around Crimea is classic. If the world sort of stands by and gives some sort of equivalency to what Russia does and what Ukraine has done, then in effect it adds credibility to Russia’s claim of Crimea as a sovereign Russian territory and therefore Russian territorial waters. That’s why it’s so important that the West needs to be very loud and very clear that this is not a violation of the Russian territorial waters because Russia claim of Crimea is complete false and illegal. Everybody has seen the video. This is obviously a deliberate effort by Russian forces to keep pushing the line to find out how far they can go until the West says “stop, that’s enough”, and then they would pull back and keep pushing again a little bit further and a little bit further to change the facts on the ground or in this case change the facts on the sea. When they built that bridge it’s supposed to be a gate across Kerch strait. The activity of the Russian navy in the past few months – interfering with shipping, interfering with the Ukrainian Navy, all violations of international law, and of their own agreement with Ukraine. So nobody should be surprised.

Dyczok: You mentioned video of the Russian ship ramming the Ukrainian ship which has been widely circulated. I’ve been wondering how did Ukrainian security service get hold of it? As a military person, do you have any insight how that thing could have happened?

Hodges: What is amazing here is we have been giving information about Russian operations in Donbas and Crimea and other places for the last few years.

Dyczok: Is “we” the United States?

Hodges: The international community. Russian soldiers, Russian sailors frequently post on social media pictures of themselves as a unit moves across Donbass area, for example. When you are smart about looking at social media you can figure out what’s going despite official government denials. There is irrefutable evidence of Russian troops being in Syria and Donbass and in Crimea. I am not surprised actually some video was taken [recorded] from the Russian ship.

Dyczok: It is from the Russian ship.

Hodges: Of course. I am not surprised it ended up in social media spaces because they have a habit of indiscipline, if you will, about these kinds of things getting out. It does not surprise me.

Dyczok: That’s interesting. I was recently speaking with my students about the impact of social media, so I should use this example next time. Something else also emerged – video of captured Ukrainian sailors who are allegedly ‘confessing’ to violating Russian orders or something along those lines. What’s your take on that, and what Ukraine can do secure their release?

Hodges: First of all, its the laughability of Russian justice. This has to be one of the quickest trials in history, when in less than 24 hours all these sailors were sentenced to two months of confinement. It’s a farce and nobody in the West should give credence to anything that comes out of the Kremlin on this. The entire West should very loud, very clear say that this is unacceptable and that these sailors should be returned to Ukraine immediately, along with the Ukrainian naval vessels. I am proud that the US Ambassador to United Nations, Nikki Haley, has been loud and clear. I am disappointed that our President has not been nearly as loud and clear about this. The West needs to stick together on condemning what Russia has done. It’s also time to make sure that the Alliance has a strong strategy for the Black Sea region. What we have in Ukraine is just a symptom of what Russia is doing –  trying to dominate the Black Sea as their own because they need it as a launching pad into Syria, into the eastern Mediterranean. Just like the 20% of Georgia that they still occupy ten years after they said they would leave. So NATO has got to develop a strong clear strategy that builds coherence of deterrence while still respecting the constrains of the Montreux Convention that limits the number of non-Black Sea littoral ships that can be there.

Dyczok: That actually takes me to my next question of larger implications of what’s happening. There are some discussions that there might be further escalation of Russia aggression in that sphere. There were very strong statements both at the United Nations and NATO headquarters.  What will likely be the international response beyond just statements?  What do you see NATO actually doing?

Hodges: I think Romania is going to have to play a very important role here. Turkey, which is good strong reliable NATO ally, is completely focused to their south, with Syria, and the various terrorist and counter-terrorism operations they’re dealing with. Plus, the more than 3 million refugees. And their maritime orientation is to the South as well, and into the Mediterranean. Because they do not have much naval infrastructure on the Black Sea, they are not going to be of much help on the Black Sea. And they do not want to rock the boat, if you will pardon the pun, with Russia in the Black sea region. So, Romania is going to have to take a load.

Dyczok: You are a US retired General, so I was wondering what the US perspective would be. If you were an adviser to Ukraine’s President Poroshenko, what you would advising him to do militarily? Ukraine continually asks for support from international community and they get a lot of verbal support. But what would you be advising him as a strategy militarily?

Hodges: Well, first of all, the international community, I would tell him to be loud and clear, and transparent on everything that’s happening, he’s got to make sure that people in the West do not fall victim, and start believing the Russian narrative that somehow this whole incident was provoked, was by the Ukrainians, and that this is all about upcoming elections. I mean the Russians wasted no time in trying to generate that narrative. So, President Poroshenko has got work hard to make sure that serious people in the West do not subscribe to that or fall victim to it, that’s number one. Number two, Ukrainians have got to develop a maritime strategy. They don’t have one because –

Dyczok: They don’t have one?

Hodges:  The Black Sea fleet was always the Soviet – that’s correct – the Soviet fleet, known as the Black Sea fleet. Of course, at the end of the Cold War, the Ukrainians did not develop, in my view, did not develop a Black Sea strategy. The naval headquarters remained in Odesa, so there’s no navy influence into strategy and policy-making back in Kyiv. And then of course when Russian seized Crimea, most of Ukraine’s navy was also lost.

Dyczok: Right.

Hodges: The core of the navy, if you will. So, they’re basically starting from zero; having to re-establish what is their strategy, what do they need to do to protect their littoral, what do they need to do to ensure freedom of navigation, both in the Sea of Azov but also out in the Black Sea.

Dyczok: Well it seems like in the middle of a crisis, developing a strategy is a little bit too late. The response that the Ukrainian president –

Hodges: That’s a fair point, but this is not going away. I mean, you’ve got, just the way they’ve had to change their land forces because of Donbas, they’ve got to modernize and adjust their strategy for the maritime as well.

Dyczok: Well perhaps this is where there’s room for cooperation with international partners, but I’d like to bring in Professor Way into this discussion. The response that came from Kyiv to this crisis in this Black Sea, Azov Sea area was to discuss martial law, which caused a lot of raised eyebrows and I’m just wondering Professor Way, what is your take on this? Why would somebody discuss martial law when you’ve been attacked on the sea? How do you make sense of that?

Way: Good question.

Dyczok: And Ben if you want to jump in on that, but let’s start with Lucan.

Way: First I just want to reiterate Ben’s point, this represents a dangerous and illegal aggression on the part of Russia, and really demands an international response and obviously a very clear response by Ukraine. I have to say though, that I was puzzled by President Poroshenko’s decision to declare martial law. I mean it seems like, first of all this is the first time since Ukraine became independent that martial law has been declared. Martial law was not declared even at the start of the crisis in 2014, which in many ways represented an even more dangerous situation for Ukrainian sovereignty, when Russia was invading its territory. Neither acting president Turchynov nor Petro Poroshenko, when he began his presidency in 2014, declared martial law. So, it’s a little bit puzzling as to why he declares it now. I mean parts of the martial law do relate to the military conflict, they call on sort of the mobilization of military resources in ten provinces on the border region with Russia. At the same time, other parts which limit constitutional freedoms of assembly and free speech really seem to have not at all a clear relationship to the military crisis at all. And so, I agree with Ben in that it’s important to see this simply as not just about upcoming elections, but in a sense, Petro Poroshenko makes it very hard not to see it as about upcoming elections. So, I’d like his help on here; it’s not simply Russian propaganda, he’s sort of in some ways shooting himself in the foot, in my view, and sort of helping out, sort of feeding into Russian propaganda. It’s interesting that, at the same time, first Poroshenko proposed a 60 day term of the martial law, which, because the election campaign officially begins on December 31, would have required a delay –

Dyczok: A change.

Way: A change, yeah. And so that would have postponed the election. I have to say, Ukrainian society responded quite admirably. You really had a, I wouldn’t say unanimous response, but you had a number of civil society and ex-government actors responding quite negatively to this expressed desire to have the delay of the elections, including three of the former presidents, Kravchuk, Kuchma, and Yushchenko came out with a very powerful statement criticising Poroshenko on this. And in response –

Duczok: So, what does this suggest about sort of domestic Ukrainian politics?

Way: Well I think it suggests good things. I think clearly it suggests that Ukraine is not Russia. You know, this is a country in which the power of the president is not unlimited, and there are real checks. And it also suggests that Poroshenko must rely on the support of even his opponents in the legislature. And they force some compromise; the two main sources of compromise were the fact that initially Poroshenko wanted martial law across the entire territory of Ukraine, and Poroshenko agreed to only ten of the provinces, as opposed to the entire. And also, he agreed to an initial term of 30 days instead of 60 days. And right now, as it’s stated martial is supposed to end just a couple days before the official start of the campaign. So, it seems like it won’t affect the electoral process, although I want to say a couple things about this. First, martial law could be extended. And so, we don’t know yet if that will happen or not, hopefully it won’t.

Dyczok: Well I share your puzzlement about why a domestic policy of martial law is introduced in response to foreign aggression, escalation of aggression. Maybe we could talk a little bit more about what exactly will this martial law entail. You mentioned there’s something, a military dimension, and I don’t know if Ben you want to jump in here, but usually martial law is a way of limiting domestic civil liberties, right? So what exactly is likely to happen here? I don’t know who wants to go first.

Hodges: It’s useful that the president has introduced it for 30 days, and it’s also restricted to – this is not all across Ukraine, but to specific areas bordering the Donbas and also Transnistria. So that kind of very specific limited scope in terms of location and time helps mitigate the narrative, the Russian narratives that this is, or, and also opponents, that this is all about the election. So that’s important, and that needs to be understood. What it would do of course is it would enable them to put people to work on defensive measures. This is a tradition I think, from this part of the world, of putting people to work to help with preparation for defence. I think they do anticipate that this might possibly lead to something else. So, the fact that the Rada had such a large vote in favour of it says something. I spoke to a very senior member of the Rada two nights ago, and they were concerned. They weren’t sure what to do, they said, well we didn’t do this for the last four and half years, why now?

Dyczok: Well precisely.

Hodges: And those are fair questions. But at the end, you had a very large majority of the Rada voting in favour of it. And so I think that Professor is correct in saying that you know, this is, this highlights a difference between Ukraine as a democracy, which may be kind of messy but none the less, compared to what you might find in Russia.

Dyczok: So there is a potential defensive dimension to this? This is the part that I don’t understand.

Way: In the decree that was passed by Parliament, it does indicate that military resources should be well funded and stocked, and that the region should prepare militarily for conflict, which is perfectly reasonable, given the situation. At the same time, it does suggest that certain constitutional rights, free speech, freedom of assembly may be limited. I’m glad it’s thirty days but I frankly fail to see and understand how that relates at all to the conflict. And it just feeds into the Russian narrative that it’s his [Poroshenko’s] own fault. If Poroshenko had not done this, you wouldn’t have had me on the program. We’d just be talking about what Russia’s done, which would be better for everyone.

Dyczok: So let me pose the question to both of you: If you were advising Poroshenko, what should he be doing in terms of strategy to deal with this situation? The martial law, let’s put that aside, but what would be a good response, or an adequate response?

Way: I think we need to rethink Ukraine, or Ukraine needs to rethink what is the notion of national security. One idea of national security in the context of war has been rightly to limit Russian interference and limit Russian influence. But I think another aspect has to be to strengthen the support and the hearts and minds of the Russophone population in the south-east of Ukraine. What I worry about the martial law, is that it works against that. That it’s simply going to create more resentment in that population, which is so important.

Dyczok: Absolutely.

Way: Because as we saw in 2014, Putin wanted to get a good chunk of Ukraine but he wasn’t able to because the population did not support him. And why do things that antagonize that population, it’s simply beyond me. I don’t understand.

Dyczok: I share your bewilderment. Ben, do you want to come in on this? As an advisor, what would your advice be?

Hodges: My advice is, that they need continue to think long-term. As I mentioned earlier, they need a maritime strategy. They’ve got to make sure that their military is well-equipped. Continue to focus on training in fourth generation. The pressure from Russia is not going to end, as long as the Russians see profit in what they’re doing to Ukraine. And so, at relatively low cost Russia is undermining the Ukrainian government and sapping morale.

I think it’s important to have a long-term view and continue to invest, and get the country mobilized. I go to Ukraine frequently, if you’re in Kyiv or L’viv, the two places I tend to go to, it doesn’t really feel like they’re at war.

Dyczok: It doesn’t at all. You should go to the war zone.

Hodges: I have been there also. I think that one of the things they’ve got to do to make sure that they continue to gain support from the West is transparency with the defense spending, with their military budget. There is no transparency there. The Rada, the Parliament, has no true visibility or oversight over where the money goes. This something that would help build and retain support from the West, is more transparency in government. The Russians exploit this. They take advantage of the fact that you have oligarchs in Ukraine that are as corrupt as any that you would find in Russia. As long as that condition exists, then the Russians are going to exploit that as a weakness. This is not just about getting more Javelins or artillery ammunition, this is about a whole of government response and building up public support and resilience in the population. Because this is going to go on. This is an extended conflict that Ukraine is got to settle in for.

Dyczok: What are your views on international engagement beyond advice and supplying weapons?

Hodges: There are hundreds of American and Canadian soldiers that are at the training centre in Yavoriv already, along with the British, Lithuanian and Polish that are helping to train Ukrainian units and help them to get ready to go into the Donbas. The United States has provided hundreds of millions of dollars in supplies and equipment. Other nations like Canada have helped in a big way in terms of military medicine as well as training and support.

I think that there often is talk about the international peacekeeping force for the Donbas, but I think that has no hope until you have a peace to keep. And I have zero trust or confidence in the Russians that they would ever allow something like that to happen.

They don’t allow the OSCE, the Organization for Security and Cooperation in Europe, the special Monitoring Mission, to do their job. So, there’s no way the Russians, or the separatists, who they command, by the way, would allow a peacekeeping force to do its mission.

So, when two of the conditions are right, it’s kind of hard to imagine a successful intervention or peacekeeping force, something like what we saw the implementation force of the Dayton Peace Accords back in 1995-1996. So, the key for me is the international community, specifically the West, putting pressure on Russia. I don’t know how Germany can continue with Nordstream Two, while Russia does what it’s doing. Germany is the key for the Minsk Agreement, Germany is the key for keeping the sanctions in place, but somehow they’re continuing with Nordstream Two. These things are all connected…

Dyczok: That was a very interesting commentary.  I keep visualizing the footage of the Russian ship ramming the Ukrainian ship and thinking that this is a visual depiction of the conflict. It’s a little ship in bad shape with a very powerful modern ship. And that, as you said, it’s going to continue. Lucan, you wanted to come in on something.

Way: I just wanted to say that I think that certainly military support and financial support for Ukraine is very important, and obviously pressure on Russia. But I do think that the West and the United States and Canada have to be willing to criticize problems with democracy in Ukraine. I think it’s a difficult situation for the West, because I think primarily the West needs to support Ukraine in its war with Russia. But I think we also need to have – Maybe it’s already going on, I don’t know, I’m not privy to these things – maybe in private, but real pressure on the Ukrainian government to limit its violations of democratic practice.

For one thing, the West, in terms of actual impact, can really have an impact on Ukraine in a way that it will never have an impact on Russia. So, I think that’s also important.

Dyczok: Thank you both! Transparency, communication with society, long-term strategies. This is the advice we’ve received from Professor Lucan Way and Lieutenant General Ben Hodges. Hope to have you on the show again.

Way: Thanks.

Hodges: Thanks.

NEWS

Martial law

Ukraine has declared martial law after Russia seized three of its naval vessels off the coast of the Crimean Peninsula on Sunday. The measure will last 30 days and only impact regions along the Ukrainian-Russian border, a section of the Ukrainian-Moldovan border and the coast of the Black Sea and the Sea of Azov. Ukraine has also banned entry into the country of all male Russian nationals aged 16-60.

Escalation started when two Ukrainian gunboats and a tugboat tried to pass through the Kerch Strait on Sunday. Russians tried to intercept the vessels and rammed the tugboat. Several Ukrainian crew members were reportedly injured. All crew members were arrested by Russia.

Trump Snubs Putin

U.S. President Donald Trump cancelled a planned meeting with Russian President Vladimir Putin at the G-20 summit in Argentina because Moscow has not released the Ukrainian vessels and sailors it seized. Foreign ministers of the G7 countries have expressed their “utmost concern” and called on Russia to release the ships and their crews.

More sanctions

Several senior European politicians raised the possibility of new sanctions against Russia to punish it for capturing three Ukrainian vessels at sea, an incident the West fears could ignite a wider conflict.

Marchuk replaces Kuchma

Yevhen Marchuk, who has represented Ukraine in a security subgroup of the Minsk agreements since 2015, has become the head of the Ukrainian delegation. He held his first meeting on November 22 as head.  He was appointed by President Petro Poroshenko, who also invited him to join the security subgroup in 2015.

Another step towards the independence of Ukrainian Orthodoxy from Moscow

The Ecumenical Patriarchate’s Synod being held in Istanbul has drafted the constitutional charter for an autocephalous Ukrainian Orthodox Church.

$1.3 billion for Oschadbank

Ukraine’s Oschadbank has been awarded $1.3 billion by an international arbitration court in respect of the bank’s claims against Russia to compensate for loss of business and assets in Crimea following Moscow’s annexation of the peninsula in 2014. “The amount of compensation will be $1.3 billion plus interest,” Oschadbank said in a statement, adding it would seek to enforce the ruling immediately in jurisdictions around the world. But Russian news agency Interfax cited a statement from Russia’s justice ministry saying it did not recognize the ruling and did not believe the court had jurisdiction.

PrivatBank against former owners

Ukraine’s PrivatBank would appeal a London court’s conclusion that the court does not have jurisdiction over a case pitting PrivatBank against its former owners. In a statement, PrivatBank also said the court’s judgement had not been handed down in its final form yet, and that the judge had found the bank had been the victim of a massive fraud.

MUSIC

With war heating up, here’s a song about the current war that has ancient roots called Молитва бійця, The Warrior’s Prayer. It’s by a band from Odesa, called Druzhe Muzyko. They wrote it in 2015, when the first wounded soldiers began arriving in hospitals in their city. These musicians said they couldn’t just stand by and do nothing, so they found an ancient prayer that Cossaks used before going into battle in the 17^th century. And gave it a modern ethno-drive spin. Some of the words of the prayer are recited. Including, ‘We’re not afraid of fire of cold, we’re defending.’

LOOKING FORWARD

Well that’s it for this edition of Ukraine Calling.  Join us again next week when we’ll have a new show for you.  We’d be happy to hear any comments or suggestions you might have.  Write to us at our e-mail address: [email protected]. This is Bohdan Nahaylo for Ukraine Calling from Hromadske Radio in Kyiv.  Thanks so much for listening.

Hromadske Radio is facing a financial crunch and is appealing to listeners for support. Should you feel inclined to donate to keep this project going, please see the links we’ll post on  to the Spilnokosht crowdfunding website and Facebook initiative.

Interview transcribed by Larysa Iarovenko, Caitilin O’Hare, and Oksana Smerechuk. News by Ira Zolomko. Music by Marta Dyczok. Sound engineers Andriy Izdryk and Adam Courts. E-mail distribution Ilona Sviezhentseva. Web support by Kyrylo Loukerenko. Special thanks 94.9 CHRW Radio Western