A No-Fly Zone Over Ukraine: An Existential Imperative for NATO Countries, and Why Russia´s Nuclear Threat is a Bluff
Member States and all citizens of these States substantiates the legal grounds as well as moral, ethical, and military-strategic reasons why it is crucial to provide air support to Ukrainian troops on the territory of Ukraine. We also refute the threat of a nuclear strike from Russia if the sky over Ukraine is closed by the military Alliance.
On February 24, 2022, after eight years of occupation of Crimea and continued “hybrid warfare” in the Donetsk and Luhansk regions, the Russian Federation launched a full-scale military offensive against Ukraine. Russia incorrectly tried to justify the offensive by reference to the right of self-defense in the sense of Article 51 of the UN Charter, and otherwise manipulated the language of international law to attempt justifying its internationally unlawful use of force. On March 2, 2022, resolution A/RES/ES-11/1, adopted by the 11th Extraordinary Special Session of the UN General Assembly, reaffirmed its “commitment to the sovereignty, independence, unity and territorial integrity of Ukraine within its internationally recognized borders, extending to its territorial waters” (para. 1), deplored “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter” (para. 2), demanded “that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State” (para. 3), and “that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.”
On March 16, 2022, the International Court of Justice (ICJ) indicated in an Order on Provisional Measures, by a vote of thirteen to two, that the Russian Federation should “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”, and “ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations […]” (para. 86). Thus, both the General Assembly and the ICJ were very clear in their condemnation of the use of force by the Russian Federation against Ukraine.
Since February 24, 2022, in addition to taking advantage of its inherent right to self-defense, Ukraine has been repeatedly calling on its international partners – especially NATO Member States – to establish a “no-fly zone” over its territory. Ukraine is not a NATO Member, and NATO bears no treaty obligation to use force in Ukraine’s favor. Instead, NATO has been limiting its involvement to providing Ukraine with weapons, munitions, and advisory support. If NATO – or its individual Member States – ever decided to help establish a “no-fly zone” over Ukraine or otherwise directly participate in this armed conflict, it would probably be in response to a direct armed attack by Russia’s armed forces or irregular armed units directed or supported by it, or if there were compelling reasons to reconsider their policy towards collective self-defense in Ukraine’s favor, with due regard to customary international law. After recalling some key legal tenets applicable to collective self-defense, we will discuss such possible compelling reasons.
First, it should be recalled that the concept of (collective) self-defense finds ground not only in Article 51 of the UN Charter but also in customary international law. As such, the customary right of collective self-defense does not require that there be a treaty between the victim of an armed attack and the States it invites to collectively exercise self-defense. In Dinstein’s words, “States are entitled to invoke the right of collective self-defence either on the spur of the moment or after thorough preparation for a rainy day” (see Y. Dinstein, War, Aggression and Self-Defence, 6th edition, Cambridge University Press, 2017, p. 305), and “there is hardly any doubt that [the right of collective self-defense] constitutes an integral part of customary international law as it stands today” (ibid.). In the absence of formal treaty obligations between Ukraine and NATO, the exercise of collective self-defense in Ukraine’s favor is therefore a matter of pragmatic State practice, based on the selfish interests of the States involved.
Dinstein observed with respect to States’ pragmatic interests as follows:
It may be said that an armed attack is like an infectious disease in the body politic of the family of nations. Every State has a demonstrable interest in the maintenance of international peace, for once the disease starts to spread there is no telling if and where it will stop. This is the fundamental concept underlying the Charter of the United Nations. As long as the system of collective security within the United Nations Organization is ineffectual […], collective self-defence constitutes the sole insurance policy against an armed attack (ibid., p. 304).
Indeed, since 2014, the United Nations Security Council has repeatedly shown its impotence in the ongoing conflict, due to Russia’s veto power. Given the urgency of the situation, collective self-defense remains the priority format for Ukraine and its international partners. Commentators agree that two conditions should be met, in order to formalize collective self-defense: (1) a victim of an aggressive armed attack must declare itself as such, and (2) it must address another State or States with a request for collective self-defense (see C. Gray, International Law and the Use of Force, 3rd edition, Oxford University Press, 2008, pp. 184 – 187). Ukraine has complied with both formal conditions, and the rest is therefore a matter of policy.
Moral and ethical reasons for NATO to provide Ukraine with military support
So, NATO as an organization, any Members of this defensealliance and any other countries committed to the principles of international law, do not bear a legal obligation to enter the war against the Russian Federation on the side of Ukraine. However, they have such a right in all cases when Ukraine welcomes and asks for it. The fulfillment of a legal obligation is an unconditional ethical imperative. In contrast, by its very nature, the exercise of a legal right as a free choice turns from the point of view of ethics, into a moral decision. A person who has a right decides whether to use it or reject it based on the imperatives that constitute his or her moral constitution.
The unprovoked aggression of the Russian Federation against Ukraine is such an apparent evil that the aggressor openly declared the change of the democratically elected government of Ukraine, which has never posed any danger to them, and the destruction of its armed forces – the only means of preserving the freedom of the Ukrainian people from foreign tyranny – as its official goals. The actions of the Russian armed forces against the civilian population of Ukraine will receive a legal qualification in a near future. Still, the gaze of a moral being can no longer fail to notice ten million (a quarter of the country’s population) displaced persons, millions of refugees, thousands of dead children, women and the elderly, cities wiped off the face of the Earth, strikes with powerful weapons causing indiscriminate destruction of residential areas. The Russian Federation has already carried out all these many times in other conflicts, but the scale of the infernal action now taking place in the center of Europe leaves as the only opportunity not to notice it this time – to close one’s eyes. However, unwillingness to see what is happening can only calm the nerves, not the conscience.
What will become of democratic nations who are refusing to fight for their neighbor who has already declared its goal to join the family of free peoples, against an existential enemy who has directly proclaimed its goal to destroy this freedom? The generation of the French and the peoples of Great Britain, which is now justifiably called the greatest one, declared war on Nazi Germany on September 3, 1939, due to its aggression against Poland. Germany did not pose any immediate military threat to France and Great Britain, did not threaten them with an invasion, but only sought to keep them out of the conflict. The “greatest generation” of the United States landed on June 6, 1944, on the coast of France fortified by the Nazis, deliberately accepting the colossal loss of lives of American soldiers, although it was clear that neither the Wehrmacht, nor the Luftwaffe, nor the Kriegsmarine, nor the SS were capable of threatening the American continent. After all, the United States, for purely utilitarian reasons, could well refrain from the creation of a Second Front in Europe, formally remaining at war with Germany. This generation was great precisely because it was aware of a simple thought – that there is no other people’s freedom because freedom is not an internal state of a person or a group of people, but a whole world filled with honest relations between equals. The scale of the sacrifices made was not even close to comparable with those that, under the worst scenario, would have to be made by the current generation of free nations who might decide on a military confrontation with Russia. But what would happen if your ancestors, referring to the need to localize the conflict, would have limited themselves to sanctions and the supply of weapons to dying Poland? What would happen if they started a “reset” of relations with Germany when the defeat and occupation of Poland became a fait accompli?
Freedom is the soul of Western civilization. Refusing to defend freedom under any pretext, even the most benevolent, is a compromise with conscience and the destruction of the map of meanings, which has been shaping and holding the Western world together over the past two thousand years. Selective morality leads to the loss of self; it is the first step towards self-destruction. By betraying the senses of civilization, we are destroying the happy world that so conveniently provided us with well-being. We are eradicating the highest values paid for with the sweat and blood of millions of lives of our predecessors. We are thereby depriving this civilization of its existential foundation.
Strategic need for military support for Ukraine
We really don’t want to take a utilitarian approach in the context of morality. Still, we are aware that particular political leaders’ decisions are mainly utilitarian. This is directly stated by NATO officials and political leaders of many countries – they intend to do everything so that the conflict with the Russian Federation would not extend beyond Ukraine. Apparently, realizing the moral inferiority of such a decision, they cover it up with declarations that such a policy is designed to reduce the amount of human suffering. This screen is entirely transparent and hides nothing. An early end to the war is the only thing that could reduce the amount of suffering, and this is what the entry of NATO troops into combat on the territory of Ukraine against the aggressor could and should ensure. In fact, we are talking about preventing the suffering of the inhabitants of NATO countries at the cost of increasing the suffering of the citizens of Ukraine. Is it possible to calculate how many children’s lives in Ukraine are worth the risk of being shot down for one NATO pilot? How many dead pregnant women are worth a fallen European or American fighter? And even if one thinks in precisely such an unacceptable paradigm, what are the real military risks of free countries in this confrontation?
More than forty days after the armed forces of the Russian Federation treacherously attacked the ostensibly weaker Ukraine with all their might, with their best troops, neither Kyiv, nor Kharkiv and Sumy located near the border, nor Mariupol, which was blocked and physically destroyed, were conquered. In those small towns under Russian occupation, open civil resistance to the invaders is unceasing. Russia has suffered losses unprecedented in modern military history. It is now continuing the war solely at the expense of inhuman cruelty and the traditional humility of Russians to the loss of human lives. Ukraine has not even lost its Air Force, which still continuescombat sorties and inflicted losses on Russian aviation that it has not known since World War II. Is it possible to believe that the most powerful military alliance in the history of mankind will not be able to almost instantly and absolutely reliably forbid the aggressor from conducting air operations? Ukrainian troops and citizens are able to prevent their defeat. Still, they cannot win on their own due to the colossal technical superiority of the enemy, primarily in the air. It is this inequality that can be eliminated by NATO aviation, which has been preparing for this for 73 years.
The failure of the argument about Russia´s nuclear threat in the closing of the sky over Ukraine
The last argument for fear is the horror of nuclear war. Horror clouds the mind and makes it difficult to see a simple thing –nuclear weapons are a powerful psychological deterrent, but they cannot be used first ever since significant quantities of them have been accumulated along with reliable means of delivery. The West is afraid to go to war with Russia, looking at its nuclear arsenal, but does not notice that Putin’s Russia is already at war with the West, denying its values, electrifying its population with hatred of the free world, changing European borders with an armed hand, threatening a direct attack on the Baltic countries and Poland, perverting international law, and supporting dictatorial regimes wherever they can. Russia is openly destroying the world’s legal order in which the free world can only exist. All this is happening without the use of nuclear weapons, although they are the most powerful trump card in the sleeve of the Russian dictator.
There is no coincidence in this – nuclear weapons have long turned into a political, not a military means. Its first use, even at the tactical level, in modern conditions means the immediate and inevitable disappearance of the State that went for it as a subject of international relations, the complete loss of its legitimacy in the eyes of the world, and a clear understanding throughout the world of the need to use all means to introduce an external government over such a country. A regime that would take such a step could not exist even for the next few days. This is a consequence of the full realization that nuclear weapons are an existential threat to humanity and, according to some estimates, to life on planet Earth in general.
This is what brought to life the need to develop measures to control the use of nuclear weapons in all countries that possess them, excluding their accidental or insane use. There is no nuclear button. The use of nuclear weapons is a complex and highly hazardous political, military, and technical decision involving hundreds of people. It is impossible to think that the movement of the finger of one madman can start the process of self-destruction of humankind. If it were so easy, the world would not have lasted so long. A concerted political decision on the use of nuclear weapons must be made by several leaders of Russia, a military decision must be worked out by several top commanders of the armed forces, several people must initiate a launch command, and this command must go through several links of the chain before it reaches the executors, hundreds of whom must, by concerted action, launch the apocalypse for our fears to become a reality. And none of these links should fail. We assess the chances of such a scenario as impossible. Can a person sitting at a seven-meter table out of fear of getting infected make such a suicidal decision? Can his thoroughly corrupt billionaire associates who love to spend money in Europe agree with such a decision? Can dozens of generals and hundreds of officers execute such a command for the sake of one man’s ambitions, sacrificing the lives of their families? And if there is someone who, for reasons unknown to us, will give a positive answer to this question, what were the likelihood of such a scenario if NATO were not aiming at destroying Russian statehood, but only at providing air support to Ukrainian troops on the territory of Ukraine? Make your own judgement. But let it be impartial.
Arman Shaikenov is an Adjunct Professor of Roman and Civil Law at the M. Narikbayev KAZGUU University (Astana, Kazakhstan); Valikhan Shaikenov LLM (Georgetown) is the Founding Principal and Juris Consultus at Shaikenov Law Experts (SHEL) (Berlin, Germany); Sergey Sayapin Dr. iur. (Humboldt-Universität zu Berlin) is an Associate Professor and Associate Dean at KIMEP University’s School of Law (Almaty, Kazakhstan)