Tag Archives: international law

Israeli and Palestinian Role and Response: UNSC Resolution 2334

Israeli and Palestinian Role in and Response to UNSC Resolution 2334

by

Howard Adelman

The Palestinian reaction to Resolution 2334 seems obvious. Ever since the Fatah faction of the PLO decided that they could not win militarily on the ground, in contrast to Hamas, even as the battle shifted from direct warfare to guerilla warfare or terrorism, Fatah resorted to trying to win in international diplomatic and legal fora. On 4 August of 2009, at the sixth general conference of Fatah held after a hiatus of six years, and specifically convened symbolically in Bethlehem next to the Church of the Nativity within Occupied Palestine and not in a foreign Arab capital, with over 2,000 in attendance, Palestinian President Mahmoud Abbas sold his movement on the proposition that Palestinians had to adopt a different form of opposition to Israeli power and focus on increasing international support.

“We should introduce new forms of resistance to attract universal public opinion” to reinforce Palestinian rights within the context of international law. Peaceful methods, though not exactly Gandhi’s form of non-violent resistance, recommended earlier by Faisal Husseini before the first intifada, would supersede, but not exclude, military armed struggle to become the foundation stone for building a Palestinian state. It was an explicit rejection of the proposal of President Benjamin Netanyahu of Israel to achieve peace through economic cooperation and integration, a proposal Bibi put forth just after he assumed office in April of 2009.

There is, of course, a huge irony in all this. While Fatah pursued the backing of international law, Abbas consolidated his monopolization on domestic power at the expense of the rule of law. “He is the president of the Palestinian Authority, head of the Fatah movement, head of the PLO’s Executive Committee and the commander in chief of the Palestinian security forces. He neglects the law (my italics) and the movement’s statutes that govern its institutions. He monopolizes power and is abusive toward those who disagree with him.” These are not my words but those of Abdel-Hakim Awad, a member of the Fatah Revolutionary Council who nominated Abbas to his position, but recently was excluded from the movement’s seventh congress in Ramallah held in December because of his criticisms. This step, along with the monopoly of the control of media and lifting the parliamentary immunity of opponents, are sure signs that a leader had turned towards adopting totalitarian methods.

In that Fatah quest for the imprimatur of international law, Jerusalem was front and centre. Not East Jerusalem, but Jerusalem. Jerusalem was to be the capital of the new Palestinian state. The target became freezing settlement activities in the West Bank and in East Jerusalem. No freeze then no peace negotiations. The cessation of settlement activities became the sine qua non for resuming peace negotiations. Settlement activity anywhere in the West Bank and East Jerusalem had to be branded as illegal.

Resolution 2334 was a peak victory in that effort. The upcoming French Peace Summit on 15 January, just next week, may be another, especially if the representatives to that summit endorse a pace plan along most of the lines proposed by John Kerry. I would not expect them to agree to sharing Jerusalem as a joint capital, but if they also get that summit to declare all settlements across the old Green Line as not just an impediment to peace, not just as illegitimate, but as illegal, it would mean defining the Jewish Quarter in the Old City and twelve very large neighbourhoods in Jerusalem as illegal as well as the settlements in Area C and beyond the Separation Barrier, not to speak even of the outposts illegal even under Israeli law. The effort to relocate the Amona settlers to land owned by ‘absentee landlords’ to legalize the settlement in accordance with Israeli law and in contravention of past practice of not putting settlements on Palestinian privately owned property, will become irrelevant.

Further, from now on, as Italian journalist Giulio Meotti wrote, “any Israeli, civilian or military, involved in the ‘settlements,’ will be liable to judgment for violating the Geneva Convention. The Israeli army, which administers areas B and C, may be indicted if it demolishes the homes of terrorists, if it expropriates the land for reasons of ‘security’, if it plans new Israeli homes. The decision is now in the hands of the Hague prosecutor, Fatou Bensouda, who has already opened an investigation about the ‘Israeli settlements,’ believing they constitute a ‘war crime.’ Israeli military personnel and politicians could be subject to warrants if they land in London, as occurred with Tzipi Livni.” Further, Israeli banks operating even in the “illegal” Jerusalem neighbourhoods could be charged under international law. The European Council on Foreign Relations has already proposed sanction against some Israeli banks – Bank Hapoalim, Bank Leumi and the Mizrahi-Tefahot Bank.

Another nail will have been driven into the coffin of Resolution 242 which indirectly gave Israel permission to trade peace for territorial acquisitions. The old armistice lines would become once more a reference point for negotiations. Further, if the Summit follows the lead of Resolution 2334 and, on the issue of violence, ignores John Kerry’s speech, Palestinian incitement and celebration of terrorism could continue as a supplementary rather than prime form of resistance. Ostensibly committed to a non-violent path to peace, documents and proposals that emerge from the Summit will only be generalized condemnation of violence with no effort to pinpoint centres of responsibility.

Further, the PA can be expected to use the International Criminal Court to pursue Israeli individuals and charge Israel with more specific legal actions. In addition, the resources of the UN, now being used to prepare the organizational ground for a more comprehensive targeted boycott of Israeli goods, will get a further impetus. Finally, the U.S., Israel’s strongest defender, will be further sidelined and the Trump administration castrated in the world of international diplomacy and international law as much as Trump might shift American policy to a much stronger pro-settler position. The U.S. has been pushed from the centre to the margins in Israel-Palestinian negotiations, a position very unlikely to dent but possibly increasingly cement the close ties on military defence and intelligence issues as well as the huge economic exchange between the two countries.

At the same time, the Trump administration with Democratic Party support will likely fight back on behalf of Israel, threatening legal action against European banks if they begin to boycott Israeli banks, bar European institutions and pension funds from American-controlled systems of economic exchange if they proscribe Israel from investments and if Israeli companies are blacklisted. Instead of the regional economic cooperation that Bibi had proposed in 2009 as a pathway to peace, we will have international economic, legal and diplomatic warfare. How can one argue that Resolution 2334 enhances the prospect of peace?

There is one illusion that has accompanied Resolution 2334. Since it was passed under Article VI of the UN Convention instead of Article VII, many interpret the Resolution as non-binding. General Assembly resolutions are clearly only recommendations, but they also influence practices and budgets of the UN administration. Recommendations of the UN Security Council under Chapter VI have no enforcement mechanisms. However, though disputed by many international legal experts, the ruling of a majority of the International Court in The Hague in 1971 declared that all UN Security Council decisions are binding. There may be no coercive power attached to them, but they have a tremendous influence politically and diplomatically and help build a widespread world consensus on certain matters. In this sense, a resolution can be morally binding even if compliance is only voluntary. One should never underestimate the power of morality even in a dog-eat-dog world.

Of course, Israel’s challenge to Obama on his home turf over the Iran nuclear deal did not help Israel win friends among many Democrats. As Martin Sherman, Executive Director of the Israel Institute for Strategic Affairs put it in a relatively understated matter, the “appalling and infuriating outbursts of vindictive pique” of Israeli politicians led by Bibi Netanyahu probably damaged the Israeli position more than anything and, as Sherman predicted, prepared the ground for the UN Resolution. Then there was a total absence of preparation for the impending storm, either through diplomatic initiatives to propose putting the two-State solution and peace negotiations back on track or, on the other hand, using the stick to get the Palestinians to back off by tightening the economic screws through which Israel primarily controls Abbas. None of these entailed freezing settlement activities.

Former Defense Minister Moshe Ya’alon also criticized Bibi for not working to prevent the passage of Resolution 2334 much more assiduously. There is not a single bit of evidence that Israel intends to accept Resolution 2334 as a basis for negotiation, notwithstanding Bibi’s endorsement of a two-State solution in his famous 2009 Bar-Ilan speech. For Israel, while ostensibly holding up that goal, did virtually everything in its power to undermine it, often through means that appeared to any reasonable observer to be disingenuous and insincere, deceptive and deceitful. This became abundantly clear when Bibi vowed that there would never be a Palestinian state on his watch. It is the height of folly to endorse a two-State solution on the one hand and then promise it will never come into being while you are in office on the other hand. Will Israel seek to engage its old European democratic partners once again in dialogue, as extensive as the disagreements are, or will Bibi go on an all-out warpath against them? Merely to ask the question reveals the answer.

The debate in Israel will shift to whether the objective should be strengthening the control and demography of Area C, while also thickening the settlements on the other side of the Separation Barrier, versus those who want to go after all of the West Bank, perhaps sharing part in a condominium arrangement with Jordan, but, in that alternative, denying the possibility of a Palestinian state coming into existence side-by-side Israel. In the wider field, Israel will increasingly become an opponent of the expansion of international law and legal norms and will have surrendered the turf of international diplomacy and law to Palestinian machinations. As Palestine becomes more authoritarian and totalitarian, ironically it increases the number of democracies at the front line of its defence.

Thus, there are divisions within Israel, the majority favouring one or other form of two-State solution and a minority aiming for territorial maximalism. Whatever the divisions, most Jewish Israelis find themselves united in opposition to the premises of Resolution 2334. Given the right-wing character of the Israeli government, the Israeli polity will ensure that not only no transportation link between Gaza and the West Bank will be established, but that Gazan students pursuing higher education degrees will not be allowed direct access to the West Bank. If a man and woman from the West Bank and Gaza fall in love, they will only be permitted to live together in Gaza. Other mechanisms of depopulating Area C of Palestinians will continue.

While Palestinians are increasingly united on the diplomatic and legal strategy but divided on their military and security strategy, on the ground barriers, between Palestinian communities grow. Abdel-Hakim Awad, a member of the Fatah Revolutionary Council and the Palestinian National Council, has attacked Abbas even though he originally made the motion to make Abbas head of the PA. He accused Abbas of excessively cooperating with Israel to maintain security in Area B. The irony is that, while legally and politically, the international community has moved to legitimize Palestinian control over all territories outside the Green Line, on the ground, that line is increasingly totally irrelevant. If a peace agreement is by some far out chance agreed to, Palestinian communities will have to be linked together by a series of sunken and exclusive roads, provided they are part of the agreement and Israel implements those clauses.

What has also evaporated, Kerry’s rhetoric to the contrary, is the vision of two alternatives – an Israel that is Jewish but non-democratic or an Israel that is both Jewish and democratic because it lives within much more restrictive borders. Israel can leave out the major population of Palestinians, use various devices to ensure that Palestine does not become a full self-governing state, and remain both Jewish and democratic. The real choice is between different variations of a Jewish and democratic state.

In a very expansionist scenario, outposts will be “regularized.” In a middle range objective, only Area C will be viewed for incorporation into Israel. In a very modest and dovish proposal, but one which only a small minority of Jewish Israelis share, Israel will just keep the new neighbourhoods of Jerusalem across the Green Line and the Old City. The latter two alternatives allow for a Palestinian state alongside Israel occupying 22% of the territory of the original Mandate. The first does not. But none of these include the most extreme and aggressive Zionist option of a one state solution where there is no Palestinian state at all but where Jordan is expected to play a specific role, one to which it is very unlikely to agree.

In light of the passage of UNSC Res. 2334, what might the effect be of moving the American embassy to Jerusalem? For one, it would send a clear and unequivocal message that America is no longer bound by international law. Many others would be further alienated from both the U.S. and Israel. As Martin Indyk (no admirer of Trump) pointed out, Trump might so shake things up that the peace process could possibly be reconstituted. According to Indyk, it would start by resolving the thorniest issue of all first in contrast to my preference for bracketing Jerusalem as unresolvable. It depends on buying into Kerry’s vision of Jerusalem as a joint capital, which neither the Israelis, Trump and his supporters or even the Palestinians endorse. While Israel would run into this proposal like a bull, the Palestinians would try to bite their tongues and stay out of the fray to gain more diplomatic and legal points. The move of the American embassy will be a demonstration of even more impotence on the part of the international community and a reaction by both Netanyahu (or his successor) to install more footprints in the sand.

Indyk himself admits his proposal is far-fetched, but he felt he had to grasp for straws. I prefer to breathe the political air that is actually out there.

One of the great benefits of Kerry’s speech is that it agreed with and backed the Israeli position that no solution can be imposed from outside, but that the parties themselves would have to come to some compromise. There were other gains. Kerry specifically mentioned the need to endorse Israel as a Jewish state. He also explicitly said that the refugee issue would be resolved through compensation and not through return. However, as important as these gains are, they pale in significance compared to the diplomatic and legal costs of Resolution 2334.

The result will not only be very much increased diplomatic, legal and economic wrangling on the world stage, but greatly increased tensions within the Fatah movement and within Israeli political institutions, all likely to be at the cost of democratic practices. The tensions over democratic norms within Israel are nowhere comparable to those taking place on the West Bank. However, if the treatment of Deputy Attorney General, Dina Zilber, is any indication, democratic institutions in Israel will be roiled in conflict. Zilber’s report recommended that all settlement activities be made accountable to the government and not relegated to a non-accountable World Zionist Federation. This report was thrown in the trash heap. If this treatment is any indication, then the independent advice of professional mandarins is likely to be set aside and ignored. Highly qualified mandarins will be castrated because their professional activities frustrate the ambitions of the more extreme members of the right-wing Israeli cabinet. The civil service will become far less civil and much more partisan in exclusive service to the party then in power.

Instead of peace, Resolution 2334 has opened the floodgates to a huge expansion in the Israeli-Palestinian conflict on the world stage. As Miriam Na’or of the Supreme Court of Israel stated, “You cannot ignore international law.” Conflict will not only increase between Palestinians and Israelis, but also within both Palestine and Israeli governmental structures. In Israel, the efforts to bend Israeli law to serve partisan political purposes is bound to increase at the same time as the prospect of a peace deal between Israel and Palestinians becomes more remote each day.

With the help of Alex Zisman

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The El Jiyeh UN Oil Spill: Legal Issues

The El Jiyeh UN Oil Spill: Legal Issues

by

Howard Adelman

There is no question that Israel bombed the oil storage tanks at the El Jiyeh electrical production facility south of Beirut during the 2006 Israel-Lebanon War. There is no question that Israel did so deliberately. However, did Israel do so knowing, or was it reasonable for Israel to have known, that 10,000-15,000 tons of IFP number 6 heavy fuel oil from the ruptured tanks would leak into the Mediterranean?

I do not know. From reading the repeated UN “inquiries” and reports into the environmental disaster, one could never find out. Because there is no effort to ask the question, let alone find answers. The inquiries begin with a presumption of guilt and responsibility and merely tried to make as strong a case for the prosecution as possible, much more in the nature of the procedures for a kangaroo court than an independent and objective inquiry in which one gathers and hears all the evidence, raises all the key questions, analyzes the results and tries, as much as possible, to arrive at an objective finding.

As much as one loves the environment and is determined to do everything to protect it, and even if one is critical for Israel going to war with Lebanon when Hezbollah rained 4,000 missiles down on the northern half of the country, the process adopted, if one believes in principles of fairness, has to make a detached observer sympathetic to the position of Israel on this question.

Begin with the legal question. Is Israel guilty for the financial costs of the environmental damage, and, perhaps, also the damage to the tourist and fisheries industries, according to international law? The reports all cite international law, but the citations are akin to those of a first-year university student who believes simply that you cite what you perhaps read as proof rather than offering supporting authoritative evidence to give weight to an interpretation or argument. Where domestic law is cited, it is only used as a basis for making a claim without considering whether the claim in general is valid.

There exist both law and legal routes to assess and attribute costs to various parties in order to assess liability and financial responsibility for damage from oils spills. Some of that is domestic law. For example, there is the America‘s Oil Pollution Act or its equivalent in other legal jurisdictions. There is international law. And there is case law in both domestic and international proceedings. However, there is no precedent for the United Nations General Assembly, and the office of the Secretary-General, becoming involved in assessing responsibility and costs for an oil spill.

Section I of the 2014 UNDP “Report on the Measurement & Quantification of the Environmental Damage of the Oil Spill on Lebanon” summarizes the contents on the legal question as dealt with in seven other 2006 and 2007 UN reports on the issue:

• Experts Working Group for Lebanon, Lebanon Marine and Coastal Oil Pollution International Assistance Action Plan, 25 August 2006;
• International Union for Conservation of Nature (IUCN), Lebanon Oil Spill Rapid Assessment and Response Mission Consultancy Report, 11 September 2006;
• Conseil National de la Recherche Scientifique Results of the Scientific Researches Undertaken by the Council in relation with the consequences of the last Israeli aggression on Lebanon (in Arabic), 20 October 2006;
• Food and Agriculture Organization of the United Nations, Lebanon – Damage and Early Recovery Needs – Assessment of Agriculture, Fisheries and Forestry, November 2006;
• United Nations Development Programme, Rapid Environmental Assessment for Greening Recovery, Reconstruction and Reform – 2006;
• World Bank, Republic of Lebanon – Economic Assessment of Environmental Degradation Due to July 2006 Hostilities, 11 October 2007;
• United Nations Environment Programme, Lebanon – Post-Conflict Environmental Assessment, 2007.

The focus (and expertise) of virtually all these reports was to assess damages and the costs for recovery, sometimes including damages unrelated to the oil spill, but not to determine liability. In other words, who has the duty and responsibility for compensation? The first reference is to domestic Lebanese law which is heavily influenced by French law. As in English tort law, it includes the general principle that “any wrongful act which causes prejudice to another person obliges the culprit to indemnify the aggrieved party”. That is, the act must be a wrongful one, there must be a causal link between the wrongful act and the consequences (in this case, of the oil spill), and there is a question of indemnification. In summary, the polluter pays. The 2014 UNDP Report specifically states that it will not go into any of these three questions because the UN General Assembly has already made that determination, in fact, numerous times. So once again, legal analysis is not attempted on the most fundamental issue because there has already been a finding of guilt. Circularity permeates the whole process. A party is guilty because that party has been found guilty.

The 2014 UNDP Report explores whether Lebanon tried to mitigate the damages because, if it did not, then Israel could escape some or all responsibility. The Report holds that, because Israel imposed an almost month-long maritime blockade on Lebanon, that country was unable to exert any effort to mitigate the consequences of the oil spill and, therefore, there was nothing to mitigate Israel’s responsibility. No evidence is cited. No international law on liability for the untoward effects of blockades in cases of hostilities is cited. Israel is simply fully responsible because one of the results of the blockade was, presumably, preventing Lebanon from mitigating the effects of the oil spill — even though there was no effort to determine whether Lebanon made such an effort, including requesting Israel’s cooperation, and whether Israel’s blockade actually prevented mitigation efforts.

How much ought to be assessed against the party which commits the wrongful act? For the totality of the prejudice sustained by Lebanon, a principle applicable to individual or collective disasters. Totality means the restoration in full to re-establish the equilibrium destroyed by the alleged wrongful act had the oil spill not occurred. Prejudices may not just be direct consequences but can include all indirect results, including future estimated or even possible results – such as lost profits and lost opportunity costs – as long as those indirect consequences can be linked to the wrongful act. In addition to indirect costs, there are ricochet effects, for example, the losses suffered by taxi drivers as a result of the loss of tourism which can be connected to the oil spill, or, an even greater ricochet effect, the loss of renovation work because owners of restaurants and hotels did not make their usual improvements because of huge losses suffered as a ricochet effect. However, in French law, moral as well as material costs are not included, such as loss of reputation to the tourist industry in Lebanon.

Given that the guilty party was identified by UN General Assembly resolutions, given this set of guidelines to determine damages, what process can be used? Three possibilities are set forth:
1. A UN agency or a combination of them makes the determination;
2. A panel of independent experts makes the determination;
3. A task force of government experts drawn from the party affected makes the determination.

In the assessment of environmental damages from the Iraqi actions following its invasion of Kuwait in defending its aggression by releasing oil into the Gulf, the Security Council, not the General Assembly, made the determination via a United Nations Compensation Commission that was provided with an interim fund. The Security Council, which has jurisdiction in cases of determining fault in a war, made the decision on how compensation would be handled. None of the options above were used; rather, a special UN agency was created, which was given interim funding to deal with the compensation and separate liability issues from victim compensation. To prepare claims for compensation, the Kuwait government set up a Public Authority consisting of representatives from both government and the private sector, supported by experts, to review any claims and to file the claims before the Claims Commission which would adjudicate those claims.

In adjudicating claims, including intangible assets such as lost business revenues, the losses had to be connected with the action, but, in the case of the Kuwait situation, the action was not restricted to the losses from the pollution caused by the oil spill into the Gulf, but any losses resulting from Iraq’s invasion and occupation of Kuwait. If the latter was used as a precedent for claims by Lebanon as a result of the oil spill, then the accumulation of claims would be far greater than just those caused by the oil spill. In the Iraqi-Kuwait case, environmental claims were given the lowest priority.

Note further that the UN General Assembly started a process to create an international convention with respect to compensation as a result of hostilities between parties where one party is considered to have committed a wrongful act. The UN drafted proposed articles with respect to reparations that were referred the International Law Commission in 2001, but they have never been in force or given any application. Nevertheless, they were used as guiding principles for assessing responsibility.

In summary,
1. There was never any determination of responsibility for the hostilities;
2. Responsibility for the oil spill was determined independently, in fact, without any determination of responsibility for hostilities;
3. The UNGA lacked jurisdiction for determining responsibility or assessing compensation for environmental damages;
4. The UNGA had never proposed let alone passed a convention dealing with compensation in cases of oil spills;
5. There was no separation in determination of liability and determination of compensation;
6. There was no assessment whether the blockade in fact prevented any mitigation of damages;
7. The process of adjudication of compensation had no independence;
8. There never seemed to be a process for differentiating losses resulting from the hostilities and losses resulting from the oil spill;
9. No rationale was offered for making environmental damages the highest priority whereas they were made the lowest priority in the Kuwait case;
10. There was certainly no assessment or evaluation on the environmental damages suffered by Israel as a result of the hostilities.

The UN cited the following to justify its decision and its previous motions:
• United Nations Conference on the Human Environment, especially principle 7 of the Declaration of the Conference, which requested States to take all possible steps to prevent pollution of the seas;
• the need to protect and preserve the marine environment in accordance with international law;
• the 1992 Rio Declaration on Environment and Development especially principle 16, which stipulates that the polluter should, in principle, bear the cost of pollution.

None of these references come anywhere close to assessing legal responsibility for the financial costs of the El Jiyeh oil spill to Israel. When Professor Richard Steiner, a marine professor at the University of Alaska, who participated in the assessment of the oil spill in Lebanon, asserted that the State of Israel should participate in a full and independent legal inquiry, establish a fund of $1 billion to reimburse all costs for oil-spill response, clean-up and economic losses caused, and implement a comprehensive restoration program, he had offered no legal justification for such a recommendation and had no expertise to make such a determination.

Other UN reports note that assessing blame and damages for environmental disasters were inapplicable when caused as a result of armed hostilities. Further, such provisions, in any case, do not relate to land-based incidents but only pertain to oil spills at sea. The provision for the United Nations Compensation Commission in the case of Kuwait is the only precedent major oil-spill compensation regime for spills arising from armed hostilities. It depended entirely on both the Security Council having jurisdiction and the prior finding of Iraqi responsibility for the hostilities.

Finally, the assessment of liabilities has precedents for other situations of oil spills during armed hostilities. For example, in the current war against IS involving the US and its allies, including Arab allies, on September 23rd, American aircraft bombed refineries and other oil installations in areas of Syria controlled by the Islamic State. In October it became known that the US was considering, as a serious option, bombing the oil pipelines over which IS had gained control, especially since IS generates $2 million per day to fund its aggressive efforts. My guess is that the U.S, and its allies are reticent, not so much because of the potential for environmental damage, but because of the precedent set that would invite sabotage initiatives by IS against American and Saudi pipelines.
In any case, you can make a large wager that neither the U.S. nor any of its Arab allies will be held to account for any environmental damage that takes place as a result of bombings targeting IS-controlled refineries and pipelines.

Tomorrow: The El Jiyeh UN Oil Spill: Financial and Political Fairness

Putin and The Crimea

Putin’s High Risk Poker

by 

Howard Adelman

 

David Remnick in the 3 March 2014 issue of The New Yorker, of which he is the editor, offers a wonderful portrait of Vladimir Vladimirovich Putin in his essay “Patriot Games”. After a preliminary and succinct introduction to Putin, Remnick begins the second section of his essay as follows: “Great powers seldom retreat forever. But to people who suffer their fall, the sense of diminishment is acute.” For Putin, the fall of the empire of the Soviet Union was humiliating. “Power, a sense of greatness, was slipping away.”

Remnick understands Russia. He is fluent in Russian and wrote the Pulitzer Prize winning Lenin’s Tomb: The Last Days of the Soviet Empire a few years after the USSR fell apart. Since that time, Putin has spent his energies trying to reverse course, symbolically, spiritually and in terms of both geography and international influence. His $50 billion  Olympic Winter Games extravaganza took place beside the subtropical Sochi, not by accident next door to Abkhazia and South Ossetia that Putin managed to detach from Georgia in the all-too-brief Russian-Georgia war of 2008. Putin is in the process of repeating the exercise with the Crimea.

As Remnick writes: “Sochi was a theatrical event before it was a sporting event.” Sochi “wasn’t about ‘slope-style’ snow boarding; it was about the televised revival of a demoralized country.” Troops on the ground in the Crimea are part of the effort to make the symbolism real. Putin, the autocrat, frenetic macho muzhik, will not be deterred by a ninety minute conversation with Barack Obama who has found Putin’s moves into the Crimea objectionable. After the occupation, “Obama warned Russia not to violate Ukraine’s sovereign territory.” Had Obama already conceded that The Crimea was no longer part of Ukraine?

The Sochi games, in spite of and perhaps because of their enormous costs, were a triumph for Russia. The secession – perhaps blessed by a successful referendum for the autonomous region of The Crimea, if Putin thinks he needs that cover – is a forgone conclusion. Of the 2 1/4 million people (almost a third of a million in Sevastapol itself) in The Crimea, two-thirds are Russian and only one-quarter are Ukrainians. In a poll at the beginning of the twenty-first century, not one Russian in the Crimea accepted Crimea’s status as an autonomous entity within Ukraine while 15% wanted the Crimea to be made an autonomous republic within Russia. Almost all the schools in the Crimea until very recently taught in the Russian language and attempts to increase the number of schools in which the language of education is Ukrainian has been resisted. The Russian flag already flies over government buildings in The Crimea. The Crimea is as I write under the military and economic protection of Russia 

Obama is fighting a rearguard defence to try to ensure that the capture of eastern Ukraine, and perhaps even all of Ukraine, will not to follow. The fact that the military occupation of Crimea without even a fig leaf of a provocation was in blatant breach of international law and the 1997 agreement over the military and huge naval base for the Russian Black Sea Fleet in Sevastopol is irrelevant to Putin. Putin crushed the domestic opposition within Russia two years ago, swept aside the psychedelic Pussy Riot protesters like a bothersome fly, and will ignore Western pressure.

Boycotting the G-8 summit in Russia in 3 months will follow. Russian oligarchs who partner with Putin in carving up The Crimea for economic exploitation may have their bank accounts and assets frozen in the West.  But what else can the West realistically do since it is clearly unwilling to go to war over The Crimea. The West will even pressure the new government of the Ukraine to be cautious lest it to be eaten up once again by the Russian bear.  The US will not accompany that caution by provocatively deploying its Mediterranean fleet into the Black Sea as the hawkish Charles Krauthammer has advised.

Interim President Oleksandr Turchynov of the Ukraine may have announced that the country’s armed forces have been put on the alert, but he will not mobilize. Assuming that he could even rely on his largely Russian trained and equipped army, the Ukraine will not want to give Russia a pretext to invade eastern or even all of Ukraine. What can NATO do to defend the territorial integrity and sovereignty of Ukraine? Well it can do something. Ukraine could immediately vote to join NATO and be just as immediately accepted. A Marshall plan could be developed for the bankrupt Ukraine. The cost of the Russian success with The Crimea could be the final and permanent loss of the Ukraine to the renewed Russian imperial ambitions.

Putin will not take such a loss easily. Expect many efforts by the KGB to engage in many attempts at economic and political destabilization. He will not simply wait passively to see if Western economic and diplomatic intervention is successful.

However, the costs to the West will also be enormous – $35 billion dollars in life support over the next two years. (Putin’s counter offer of $15 billion was just a down payment.) Further, there are no guarantees of success even with Viktor Yanukovych taking refuge in Russia. The opposition that just came to power in the Ukraine is bitterly and deeply divided, of which the split between Yulia Tymoshenko and Viktor Yushshenko is only the surface. Ukraine’s underlying situation is even worse. Its population was 52.5 million when the USSSR fell apart. Although there was a brief burst in the early nineties when a million and half repatriated to the newly independent Ukraine, the population was down to 48.5 million at the last census in 2001 and 45.6 million in 2012, 80,000 less than in 2011. Death rates, among the highest in Europe with very high rates of acute and chronic suicide (smoking), exceed birth rates of only 1.4 per female; emigration was greater than immigration until 2005. Locally-born kleptocrats robbed the Ukraine blind when the Ukraine finally got on the bandwagon of economic growth.

Ukraine is riven with ideological, religious and ethnic divisions. The 77.8% Ukrainians population is divided between Greek Orthodox and Ukrainian Orthodox (50-60%) enjoying full communion with The Vatican with a small Roman Catholic population. The 17.3% Russian population, much less now with The Crimea detached, is concentrated in the Eastern Ukraine and no where outside of Crimea constitutes a majority. With the de facto excision of The Crimea from the Ukraine, its Tartar problem has been delivered back to Russia. However, there are significant concentrations of Romanians, Moldovans, Bulgarians and Hungarians (160,000 of the latter in Transcarpathia) in Western Ukraine. If Ukraine can get its political act together and if it can sign the deal negotiated with the EU, Ukraine could follow the Polish path to prosperity, as well as gain a heightened sense of morale and national purpose, unfortunately without The Crimea.

So the West will bail the Ukraine out and help integrate it into the EU. The West will provide help in stabilizing its democracy. Obama will have no choice except to be the Neville Chamberlain who surrendered the Sudentenland of Czechoslovakia to Hitler, but he will not sign an agreement acceding to the seizure of The Crimea.