CommentaryThe other day, when I woke up in the morning, I thought that I should go to Kyiv and do my part by remembering George Orwell and the Lincoln Brigade in the Spanish Civil War, and paying homage to Catalonia. My 66 year old body shortly thereafter said that the Ukrainians are not asking for men my age to stay and fight, and my body’s various ailments reminded me that I was being absurd. Rather than donating to one of the many entities that seem to spring up when things like these happen, I instead decided to contact the Ukrainian Embassy to see what they would like me to do. Unfortunately, the website was not loading and the phone number rang busy (as one might expect) the various times I tried.
So, I resolved to write; the thing that professors do for what it is worth.
When the Berlin Wall fell in 1989, I was in Paris and I remember being at a meeting of the East-West Arbitration Group in January 1990, when at least one (the East German) and possibly several speakers from Eastern Europe basically said that the presentations they had sent barely a month before were now out of date. There was much uncertainty about what the fall of the Berlin Wall would entail. However, the first and almost symbolic action that followed was the changing of the name of the group from the East-West Arbitration Group to the European Arbitration Group – a harbinger of a yearning to come together across East and West Europe. This was followed by the German reunification at lightning speed, something that unsettled anyone in Europe with even a modest memory of 20th century European history, and created a de jure fait accompli thanks to the insistence of the then Chancellor, Helmut Kohl. And his vision of a Germany anchored in Europe seems to have happened.
The most trenchant analysis at that time, I remember, was from the late President of the ICC International Court of Arbitration, Alain Plantey. A former ambassador under de Gaulle, he commented that the consequences of these events would be worked out over the next 50 years. We are now a little over 30 years into that 50 years, having weathered the disintegration of Yugoslavia and now facing the consequences of the Russian invasion of Ukraine.
It occurred to me today as I spoke with an old colleague from Germany that in the immediate aftermath of the fall of the Berlin Wall and the disintegration of the Soviet Union, the Eastern European satellite people had a choice as to whether they would look to Russia for their future, or toward Western Europe instead. Those countries had significant Russian minority populations, a legacy of Stalin’s moving people around in the Soviet Union. Yet, to a former satellite it appeared that they all turned away from ‘Mother Russia’, towards Western Europe as the way to anchor their future. I remember leading seminars with Poles, Romanians and other Europeans, and having profound respect for these 50 year olds who had to learn new dance steps in their midlife, and adjust to a market economy life after having lived under and still being subject to planned economy bosses in their workplaces.
I was particularly moved by my visit to Estonia to speak at an arbitration conference of the Estonian Chamber of Commerce and Industry. Indeed it was fun to pick up a Soviet era military hat from a former Soviet army member on the street. But more than that, it was to meet the Estonians at the conference and be so moved by something about their warmth and humanity. Some said that the warmth I was experiencing was the old European feeling or exchange that had been lost in Western Europe in the market economy hurly burly. I just remember this deep sense of being moved by these Estonians building their future.
On a school trip in 1970, I went to Poland, the Soviet Union, and Hungary. Polish people really moved me; there were posters in Warsaw seeking donations to help the starving Biafrans in Eastern Nigeria during the Nigerian Civil War which was then ongoing, something I had personally witnessed the previous two summers living in Lagos. I remember the desperate fear of our au pair from the East with her deathly fear and panic about what would happen or was happening to her family in Enugu as the Federal troops encircled the town. The contacts with Poles, Russians, or Hungarians was very limited then, but the chance to see their histories left me with a strong impression of their cultures and their humanity.
Back in 1970, I visited Kyiv as part of the trip. Today, as I watch what is happening in Ukraine, I am taken back to my childhood memories of the statues and beautiful cathedrals. Since then, my work has taken me to Poland, Hungary, and Bosnia. Through my teaching experiences, I have built meaningful acquaintances and some friendships with colleagues and students alike. I walked those Eastern European streets, drove on those Eastern European highways, and got in touch with some of the Eastern European experiences that are ingrained in the minds of Americans who emigrated from there. Having stumbled by accident upon the dedication ceremony for the Holodomor memorial near Union Station in DC, where my Congresswoman Marcy Kaptur spoke, I saw so many persons of Ukrainian origin in traditional dress. That moment gave me a little access or glimpse into our history.
So, as I watch these images of what is going on in Ukraine and I hear the Ukrainians asking for help from the West, all these memories flood back. When I hear them saying that they are fighting for their land, I am brought back to the French resistance fighters I met in Paris who expressed the same kind of logic for why they fought the Nazis in World War II.
As the war grinds on and the millions of refugees increase, I hear and understand the distinction made between NATO countries being protected under Article 5, and Ukraine. I also note the Ukrainian applications both to NATO and the EU, even while the onslaught goes on. It seems to me, in the words of one Ukrainian woman I heard on the radio early on in the invasion, that Ukrainians want their democracy to survive and be of a European democratic model, effectively rejecting the Russian puppet model. She added that this moment was their time to fight for that vision of their future. Their question to the rest of Europe and really to all democracies, however imperfect they are, is how will they stand with the Ukrainian people.
It occurred to me that the Russian invasion resembled not so much Hitler going into Poland, but rather Saddam going into Kuwait. Even though Kuwait was not a NATO member, it was defended by the world community through the coalition which had as its goal back in 1991 to push Saddam’s forces back into Iraq. Of course, that could be done then with UN Security Council support which is impossible now, and Saddam was not a nuclear power. I get that.
It just seemed to me that if we think of this Russian invasion as an act of evil, but not the act of someone or a people who have to be viewed as implacable enemies, then maybe the way forward is less about the geopolitics of the moment, and more about something different. That something different is to make it understood that such an invasion for political gain is simply unacceptable to the world community, and that the coalition of states have to enforce that rule through full support to the Ukrainians; to push the Russians back to the Ukrainian borders, all the way to the edge of the Donbas region, including Crimea. Give the Ukrainians what they say they need in order to accomplish that objective. It is not so much about finding a way for an off ramp for Putin, as much as it is a way to stop him cold and turn him around. Whatever his vision is, it is not possible in today’s world.
Now some would argue geopolitical whataboutism and point to the United Kingdom and the US invasion of Iraq in 2003 as being a comparable act of barbarity. I very well remember the disinformation promoted before that attack, the legalistic word games to mask torture, and the enormous amount of geopolitical arm-twisting. It was an aggressive war, and unfortunately, those who set it in motion, neglect to learn what Ben Ferencz, last surviving Nuremberg Prosecutor, says: aggressive war is the greatest international crime for it carries in it all the other crimes such as those against humanity and war crimes.
Today, Putin’s threat of the use of nuclear weapons gives all pause. Yet, if a threat of nuclear weapons leads to inaction or acquiescence in the defense of democracy, then we will always be subject to that threat from any expansionist force. Letting those threats freeze us seems to me to be the path to nuclear destruction by the emboldened, rather than away from it.
I am fully aware that when this point is discussed, some would ask about sending US troops into Ukraine. That may be the right thing: marshaling the NATO forces to fight alongside the Ukrainians where they need them to push back the Russians to their border, not to Moscow. This would also be helpful to remember those men and women in harm’s way, many of them black and brown and not being treated well or ignored after any war in American history. And yet, I remember their sacrifice against fascism in World War II, even while being bleached from histories of D-Day when they were on the beaches in Normandy, or saddled with white commanders whose goal was to prove they were not worthy of fighting in a segregated army. Yet, they did serve and fight against fascism abroad with a hope – maybe faint – that this fight abroad would help to hasten the end of the fascism on racial lines that they experienced back home.
We may come to that moment again and to those who ask is it worth it to fight for Ukraine, I would say that it is worth it to fight for Ukraine as they seek to create their own democratic future and confront the dark evil of an invasion. The Russians have had 30 years since the fall of the Berlin Wall to figure out who they want to be. I remember the hope with Gorbachev and Yeltsin and even the heyday of the G-8. And I truly hope that we can get to a point of peaceful coexistence and peace. We may be able to get to something like that again, but that will depend on what the Russians wish to be their conduct on the international plane, both now and in the future.
Putin does not inspire fear in me; instead, he inspires pity for the limits of his vision for such a great country with great people.
Benjamin G. Davis is an Emeritus Professor of Law at the University of Toledo College of Law.
Suggested citation: Benjamin G. Davis, Ukraine : An Ordinary Citizen’s Suggestions, JURIST – Academic Commentary, March 15, 2022, https://www.jurist.org/commentary/2022/03/Benjamin-Davis-Russia-Ukraine-War/.
This article was prepared for publication by Sukrut Khandekar, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org
