Contemporary sculpturist comments on Ukraine war

Lakenen considers the war in Ukraine in this 2022 sculpture.

A couple of weeks ago, I visited artist Tom Lakenen's Lakenenland, a sculpture park in the Marquette area of Michigan's Upper Peninsula.

I'm a sucker for an outdoor art installation, and Lakenen's work does not disappoint. I only had a couple of hours, but I could have spent the day exploring the inviting woodsy trails.

Composed of "junk," Lakenen's art in its very existence speaks to capitalist materialism and environmental sustainability. About and even besides such themes, Lakenen has a lot to say, and much of it resonates with the ordinary American, especially in terms of economic frustrations. I could not help but notice that vehicles in the parking lot boasted bumper stickers of both "red" and "blue" American political extremes. But insofar as any visitors expressed outrage, it was along with the artist, not at him.

Lakenen is always adding new pieces. I was especially moved by his 2022 work on the war in Ukraine. Above and below, I share some images of that piece. I thank Tom Lakenen for sharing his art with visitors. All photos by RJ Peltz-Steele CC BY-NC-SA 4.0, with no claim to underlying sculptural works, presumed © Tom Lakenen.

Kyiv law school strives for normalcy

The dean of a Kyiv, Ukraine, law school spoke to American Bar Association (ABA) lawyers Thursday via Zoom about teaching law in a war zone.

I once had a class halted by a (false) fire alarm. That was a hassle.

I've never had a class disrupted by an alarm warning of an incoming hypersonic missile.

Dean Volodymyr Venher
Zoom, Feb. 15, 2024

Volodymyr Venher has. He's dean of the law school at the National University of Kyiv-Mohyla Academy (KMA). Alarms happen once or twice a week, he told the ABA Seasoned Lawyers Interest Network. Russian attacks target civilian infrastructure.

"Sometimes it's really scary," Venher said.

Kyiv has a protective barrier that includes U.S. Patriot missiles, Venher said. But some Russian missiles get through. Two weeks ago, he said, a missile struck 300 meters from his apartment. He lives on the 11th floor, and the building shook, loosening bricks and concrete.

A KMA professor in biology was killed at her home in January.

Kyiv has it a little worse than Lviv, which sees fewer missile attacks, Dean Venher said. But Kyiv is "paradise," Venher said, compared with Kharkiv, where Russia has targeted universities.

This missile attack on a residential complex in 2023 killed five.
State Emergency Service of Ukraine via Wikimedia Commons CC BY 4.0

Faculty and students at KMA Law carry on. Venher said that to endure the constant threat of war, it helps to maintain some semblance of normalcy. His law school ceased operation for only one month, he said, in March 2022. Classes resumed online in April and in hybrid form for the start of a new academic year in September 2022.

Naturally the school was worried about what enrollment would look like. But students wanted normalcy, too. Of an admitted class of 120 in fall 2022, 110 turned up in person to start the year, Venher said. There are occasional setbacks in loss of electricity and internet outages. The internet problem was solved when the school bought two Starlink subscriptions, Venher said.

KMA, 2009
Роман Днепр via Wikimedia Commons CC BY-SA 3.0

Law faculty try to continue both their teaching and research, Venher said. Many focus their work on what it will take to rebuild Ukraine after the war. Some focus on humanitarian needs. Some, including Venher, focus on the law of war and problems of accountability.

There is a mental toll. After missile strikes, one can see people's unhappiness, Venher said. Many people are afflicted with depression and survivor guilt.

"The human brain can adapt to anything," Venher said. "We hope for a better future."

KMA Law is keen to connect with partners abroad. Connecting electronically with the outside world helps to keep spirits up and maintains a status quo ante, a connectedness that would have been ordinary before the war. Venher said that the school welcomes even opportunities for law students to practice speaking English with their counterparts elsewhere. The school is keen too for faculty to find opportunities to present research and expertise.

The school also welcomes resources. A French benefactor recently donated a collection of law books, and the school could use more legal resources in English and French. Under the circumstances, the school cannot afford pricey legal database subscriptions, Venher explained. So students and researchers are more dependent than usual on hardcopy resources.

The school website provides guidance on financial contributions.

This story was updated on Feb. 19 at 9:30 a.m. when I confirmed the death of KMA Prof. Lyudmyla Shevtsova.

Russians travel in Asia despite, or because of, war

An Aeroflot plane awaits departure in Almaty, Kazakhstan,
earlier this month. EU and U.S. sanctions banned the airline in 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

A joke, belatedly to honor Ukraine Independence Day, August 24.

This summer, traveling in the Caucasus and Central Asia, I crossed a lot of borders. Sometimes back and across again.

I also met a lot of Russians. Most often, we exchanged pleasantries, as if there were nothing going on in the wider world. I didn't want to ask, and they seemed content not to talk about it.

I did meet a number of Russian men who had fled conscription. One fellow, late 20s I estimate, in a craft-beer bar in Bishkek, the capital of Kyrgyzstan, was especially warm company. We never talked directly about Putin's position on Ukraine. But he made clear that he believed Russia's war adventure is socially and economically disastrous for ordinary Russians at home.

Anyway, my friends and I grew accustomed to the questions asked by immigration officials with limited English.

Usually, the border officer asked,

"Occupation?"

"No," a Russian traveler answered.

"Just visiting."

Polisci papers track Ukraine war to Arctic, UN, internet

The war in Ukraine occasioned several papers at last weekend's annual meeting of the New England Political Science Association (NEPSA) in Mystic, Connecticut.

The NEPSA meeting offers an outstanding opportunity to preview cutting edge research presented in a low-stakes and supportive setting. Long-time NEPSA Executive Director Steven Lichtman, a professor of political science at Shippensburg University, is the brilliant maestro, setting the right collegial tone while supervising a rigorous selection process that guarantees top-shelf work.

Rotating location in New England states, NEPSA has become one of those regional conferences that is so highly regarded as to draw participation from across the country and from neighboring disciplines including law. The program is open to faculty and graduate students; law students of mine have participated in the past. This year the program opened two panels to undergraduate researchers. An extremely selective submission process yielded undergraduate presenters fully capable of going toe to toe with working scholars.

Prof. Steven Lichtman, 2016
RJ Peltz-Steele CC BY-NC-SA 4.0

There is scarcely a corner of politics and its study not being reshaped by the war in Ukraine. So it's no surprise that the war motivated many of the papers at this year's NEPSA. For all that I learned from myriad presenters, I thought I might share just a taste of takeaways related to the war.

★

A Ph.D. candidate at the University of New Hampshire (UNH), Tim Hoheneder is thinking about the effect of the Ukraine war on Arctic politics. He explained that Russia assumed the rotating chair of the eight-state Arctic Council just before the full-scale invasion of Ukraine. The United States said it would not participate on the council during the term of the Russian chair, which ends this summer, in 2023. The United States did say it would continue to work bilaterally with other states on Arctic issues.

Now what will become of the council is up in the air. Major issues affecting global security, involving nuclear proliferation, militarization, indigenous rights, and climate change, hang in uncertainty. Hoheneder's paper is "Science Diplomacy as a Neofunctionalist Tool in a Post-Ukrainian Invasion Arctic."

★

A master's student at UNH, Sarah DeSimone is considering how the U.N. Security Council might be made functional since the Russian veto has neutralized any meaningful response to the war. She explained both the long history of attempted Security Council reform and the recent history of failed resolutions on Ukraine. 

The only reform to the Security Council to gain traction has been the recent Liechtenstein "Veto Initiative," DeSimone explained. The initiative modestly would require that a council state explain a veto. DeSimone voiced support for an amalgam of proposals that have been floated before: First, the veto should be prohibited in matters of genocide, human rights violations, and serious violations of international law. Second, in conjunction with the prohibition, an oversight mechanism should preclude countries from voting on matters in which they are directly concerned. 

Without Security Council reform, DeSimone warned, lack of credibility will render the United Nations "obsolete." DeSimone's paper is "Reforms to the Security Council: Salvaging the Liberal World Order by Examining the Crisis in Ukraine."

★

A senior at Providence College and editor-in-chief of the student newspaper, The Cowl, Sarah McLaughlin spent 46 unenviable days immersed in a Russian social media image board, Dvach (Двач). Her findings are fascinating. She discovered a world of hyper-masculine Russian nationalists almost as disgusted with Vladimir Putin as they are with Ukraine. The community evinces nostalgia for a perceived past of conservative values and faults Putin for not living up to anti-western and anti-liberal values. The community opposes the war in Ukraine and the mobilization of Russians to support it, even as participants depict the idealized Russian man as strong, hardworking, and dutiful to country. Animals, especially pigs and monkeys, represent Ukrainians, women, and Putin in demeaning memes.

McLaughlin's paper is "Russia the Bear, Putin the Pig: Russian Nationalism and the Imagined Community of Memes."

 ✪

NEPSA's next annual meeting is slated for spring 2024 in Newport, R.I.  Look for a call for papers by September with a December 2023 deadline.

Weapon of Putin's war, anti-gay law jars NHL in US

The NHL Chicago Blackhawks Sunday will host an annual Pride Night, but the team will not be wearing warm-up pride jerseys as intended, for fear of jeopardizing the safety of Russian players and their families.

Yesterday I got to talk about the story with Sasha-Ann Simons of Reset on WBEZ Chicago Public Radio. You can hear the segment online. HT @ ace producer Micah Yason.

WBEZ sports contributor Cheryl-Raye Stout related the facts and layered some nuance on the story. She expressed concern that Blackhawks staff had not consulted their three Russian players. In a Philadelphia Flyers case in January, a player refused to wear a pride jersey, citing his Russian Orthodox religion. It's unclear where the Russian Blackhawks stand.

No one disputes, though, that wearing the jerseys might be problematic for the players as a matter of Russian law and policy. In December 2022, Russia doubled down on the 10-year-old anti-gay law that was a source of controversy during the 2014 Sochi Olympics and the 2018 FIFA men's World Cup.

Under international pressure, Russia was permissive in enforcement of the law during those tournaments. But the failure of the International Olympic Committee and FIFA to reconcile their bold anti-discrimination rhetoric with host-country legal jeopardy for athletes and fans was a bad look and did no favors for human rights. More or less the same drama just played out again with the FIFA World Cup in the fall in Qatar, where homosexual acts are criminalized.

As enacted in 2013, the Russian law imposes civil fines on persons and business, and detention and deportation for foreigners, who engage in "propaganda" promoting same-sex relationships. Propaganda, though, really means any representation of social acceptability, including even the rainbow flag.

The law was enacted as a child protection measure and referred only to expression to children, though that scope encompassed mass media. In 2022, President Putin signed into law an amendment to broaden the law to cover expression to any person, child or adult, and to make plain that trans representations are prohibited, too.

Russian refugees march in New York in 2013.
Bosc d'Anjou via Flickr (CC BY-NC-SA 2.0)

Thus, a Russian athlete photographed wearing a pride jersey in America might face legal repercussions upon returning home. But the risk is really much greater than just civil fines, I explained to Simons on Reset. Informally, the law has signaled indifference by Russian authorities to brutal violence inflicted on LGBTQ persons, or even persons suspected of being LGBTQ, by vigilantes, if not law enforcement. An athlete abroad fairly might fear such reprisal upon returning home, or fear for her or his family meanwhile.

One thing I did not get to say on Reset, that I think is important, is that Putin's expansion of the anti-gay law is complementary of his war in Ukraine, because he perceives both as integral to preserving Russian identity against Western acculturation. Foreign Policy called the issues two sides of the same coin, and Putin has spoken of Western territorial aggression and social policy in the same breath. Doubling down on the anti-gay law in December was calculated as just another salvo in the war. That means, if Brittney Griner were not warning enough, that Putin is prepared to weaponize the law.

Robbie Rogers, 2013
Noah Salzman via Wikimedia Commons CC BY-SA 3.0

Our Reset discussion touched on other related matters, such as the Iranian side's protest at the Qatar World Cup, which I wrote about here in November and spoke about in Poland. I've written previously on the World Cup and sexual equality (with Jose Benavides), the World Cup and human rights, and football and development. 

A paucity of representation in top-flight world sport indicates that laws such as those in Russia and Qatar are hardly the only source of hostility toward LGBTQ athletes. In 2022, in the run-up to the men's World Cup, there was only one openly gay international footballer, and he didn't make the final cut for Australia's squad in Qatar. (There are openly lesbian players in women's world football.)

A good read in this area is Coming Out to Play (2014), an autobiography by Robbie Rogers, co-authored with Eric Marcus. An American and a Christian, Rogers played for Leeds United in the UK and for the U.S. Men's National Team. In 2013, he publicly disclosed that he is gay at the same time he announced his retirement from football, though he returned to the sport to play for four more years with the LA Galaxy in the U.S. MLS.

Program to examine Genocide Convention, Ukraine

The Jagiellonian Law Society has announced a follow-up seminar, on March 14, 2023, on the subject of Polish-Jewish attorney Rafał Lemkin, his role in creating the UN Genocide Convention, and the relevance of Lemkin and the convention to the war in Ukraine.

In a previous seminar in December, speakers detailed the historical context of Lemkin's life and work. A featured guest in the March program will be the Hon. Stephen J. Rapp, U.S. ambassador-at-large for global criminal justice from 2009 to 2015, and more recently a visiting fellow of practice at the Blavatnik School of Government, University of Oxford.

Here is the program description and information about registration, free but required, CLE credit available, from the Jagiellonian Law Society.

We would like to invite you to another webinar on Raphael Lemkin, Genocide, and the Modern World, keynoted by Ambassador Stephen J. Rapp and featuring distinguished international faculty!

Rafał (or Raphael) Lemkin was a Polish Jewish lawyer best known for coining the term "genocide" and a key person behind the UN Genocide Convention. For that work, he was twice nominated for the Nobel Peace Prize. On the 50th anniversary of the Convention entering into force, Lemkin was honored by the UN Secretary-General as an inspiring example of moral engagement.

The upcoming seminar is the second part of the webinar series discussing the crime of "genocide" and its applicability to the current events in Ukraine and beyond. We will discuss whether Lemkin’s ideas are helpful in the prosecution of mass murders and other crimes aimed at eliminating or erasing entire groups of people. We will also address the likelihood of a successful prosecution of atrocities committed in Ukraine, be it as "war crimes," "crimes against humanity," or a "crime of aggression," via either international or national courts or via special tribunals.

The webinar is presented by the Jagiellonian Law Society with support from the Kosciuszko Foundation and co-sponsored by many organizations, among them ABA, NYSBA, UBA, NJSBA, etc.  It is free and open to the public. Spots are limited. Registration is required.

We are honored and proud to announce that Ambassador Stephen J. Rapp, the United States Ambassador-at-Large for Global Criminal Justice, will be our keynote speaker, and we are honored and delighted to present to you our most distinguished international Faculty:

Professor Agnieszka Bieńczyk-Missala, Professor in Political Sciences at the University of Warsaw

Prosecutor Thomas Hannis, former lead prosecutor, UN International Criminal Tribunal Yugoslavia

Professor A. Dirk Moses, Anne and Bernard Spitzer Professor of Political Science at the City College of New York, CUNY

Professor Ana Filipa Vrdoljak, The UNESCO Chair in International Law and Cultural Heritage, Technical University, Sydney, Australia

Dr. Mykola Yurlov, International Humanitarian Law and Policy Advisor, member of the Council of the Ukrainian Bar Association in Kyiv

Moderator: Dr. Elizabeth M. Zechenter, Visiting Scholar, Emory University

Time: Mar 14, 2023, 12:00 PM in Eastern Time (US and Canada)

To Register 

We offer Continuing Legal Education (CLE) credits. If interested, please contact Jagiellonian Law Society.

EU leverages trade for sustainable development

Attorney Cyprian Liske presents at the University of Bologna.
Used with permission.

"Sustainability" is the word of our times, and the European Union has more than a decade's experience building sustainability expectations into trade agreements.

At the University of Bologna in October, for a program of the Guild of European Research-Intensive Universities, doctoral candidate Cyprian Liske, my friend, colleague, and former student, presented his research on sustainable development provisions in EU trade agreements concluded from 2010 to 2020. Here is the abstract:

On 27th November 2019, Ursula von der Leyen, at that time President-elect of the European Commission, delivered a speech in the European Parliament, in which she set a concise programme for the next 5 years of her term of office. "Sustainability" was mentioned in this speech no less than 8 times. "We have to bring the world with us and this is already happening," Ms. President said. "And Phil Hogan [at that time Commissioner for trade] will ensure that our future trade agreements include a chapter on sustainable development."

Indeed, the EU has been including trade and sustainable development (TSD) chapters in new-generation trade agreements since the Free Trade Agreement with South Korea (2010). However, such TSD chapters, devoted to the realisation of the Sustainable Development Goals, including environmental protection, preventing resource depletion, or protecting workers' rights, differ substantially in agreements concluded with particular countries....

The goal of the project was to comparatively analyse TSD chapters in trade agreements concluded by the EU in 2010-2020, pointing out common elements and differences. The analysis will let us critically explore what the reasons for those differences may be (e.g., the course of negotiations, economic dependency, trade partners’ level of development) and whether the EU is consistent in its sustainability requirements set towards its trade partners. It will also allow us to depict the current tendencies in the way how such TSD chapters are shaped by the EU in comparison with the global trends. The comparative analysis of the EU TSD chapters was conducted by the researcher qualitatively and quantitatively with the use of software (MAXQDA 2022).

The research parses the interests advanced by EU agreements..
© Cyprian Liske; used with permission.

The Biden administration lately has redoubled the U.S. commitment to the developing world, announcing at a December summit, for key example, an investment of $55bn in Africa over the next three years.

Development aid is often viewed skeptically by American taxpayers. That's understandable when the homeland is plagued by homelessness and financial insecurity. Isolationism streaks run through both libertarian and conservative ideologies, evidenced lately by Republican skepticism even of aid to Ukraine. But development aid can be justified with reference simultaneously to socioeconomic benevolence and to the donor's national security, thus, appealing to priorities both liberal and conservative.

Literal signs of Chinese investment are ubiquitous throughout Africa, as here,
in the rural community d'Oukout in the Casamance region of Senegal, 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

The United States has a lot of catching up to do. With hotly debated motive, China has invested heavily in the developing world, near and far from its borders. Chinese presence in Africa is ubiquitous, from massive infrastructure projects such as ports and bridges to telecommunication access in the remotest of villages. Russia, too, has lately gone all-in on Africa: a "charm offensive," researcher Joseph Siegle wrote last year, and "[t]he reasons aren't pretty."

Incorporating sustainable development into trade agreements allows western powers to facilitate development goals at less cost than direct investment, and even with potential gains through free trade. There's still a lower-common-denominator problem when competing against proffered Chinese and Russian agreements that attach browbeating strings only on the back end. But access to Western markets brings some incentive to the table.

A practicing lawyer and legal translator, Liske is pursuing his doctorate on the nexus between sustainable development and international trade law in the context of EU external policy. He graduated in law from Jagiellonian University and in business linguistics from the Tischner European University, both in Kraków, Poland, and both with distinction. He also is an alumnus of the American Law Program of the Columbus School of Law of the Catholic University of America, and of the English Law and Legal Methods International Summer Programme of the University of Cambridge.

Ukraine Bar Association soldiers on

Lawyers have never stopped work in Ukraine, and the bar has been a catalyst in the development of democracy there, I learned today at a presentation of the Federalist Society.

Gvozdiy via Zoom from Kyiv today.

Via Zoom from Kyiv, Dr. Valentyn Gvozdiy, vice president of the Ukraine Bar Association, joined the Federalist Society International and National Security Practice Group to talk about the evolution of the profession in Ukraine and the role of lawyers in the present war. Dr. George Bogden interviewed Gvozdiy.

The talk came on the heels of news of the firing of a slate of top Ukrainian government officials in a corruption scandal. Gvozdiy addressed that developing story, too, in response to questions.

After the independence of Ukraine from the Soviet Union in 1991, the legislature adopted a "Law on the Bar," in 1992, Gvozdiy recounted. The enactment liberated the bar from "complete state control," but instituted only "quasi self-governance."

Ukraine had long looked to join the European community of nations, and work began promptly after independence to move the country in that direction. A key plank in the platform of European standards, Gvozdiy explained, is the existence of an independent bar. A 1995 resolution in the Council of Europe provided an incentive, recommending the organization of Ukrainian lawyers. The recommendation later became a precondition of the landmark Ukraine-EU association agreement in 2014.

Formal progress was long stalled by the very conflict that animates the present war. The fledgling Ukrainian state was weak, and political leaders were susceptible to corruption by easterly interests. Like popular opinion and the commercial sector, the developing bar leaned westward. By the time Donetsk Oblast-born Viktor Yanukovych claimed the presidency in 2010, to the dismay of the United States, the Russian-leaning leader was walking a tightrope that could not hold. Katya Gorchinskaya explained for Eurasianet:

The catalyst for the Yanukovych administration’s downfall was Ukraine’s stop-and-start efforts to sign an association agreement with the European Union. By late 2013, a majority of the population backed a draft agreement. But the pact to draw Ukraine closer to the EU placed Yanukovych in a tough situation. The treaty would open the way for substantial EU economic assistance and other perks, such as visa-free travel to Europe for Ukrainian citizens. But it would also mandate compliance with transparency and accountability provisions that gave Yanukovych and his associates reason to pause. In addition, Russia, the Ukrainian president’s main foreign patron, was steadfastly against seeing Ukraine take even the tiniest step toward Europe.

Amid the push and pull, Parliament coughed up landmark legislation in 2012 that established the Ukraine Bar Association as fully self-governing. Two years later, the Maidan Revolution deposed Yanukovych, Ukraine and the EU concluded the association agreement, and Russia invaded Crimea.

"'An obstacle is often a stepping stone,'" Gvozdiy said of Yanukovych, invoking a maxim usually attributed to U.S. Revolutionary War Colonel William Prescott. "The former president is not only not popular in Ukraine, he is the worst person we can imagine in our recent political history."

The recent ouster of top Ukrainian officials amid a corruption scandal has unsettled supporters of Ukraine with fear that the Zelensky Administration looks unstable. The news broke at a sensitive time, as the Biden Administration is navigating German reluctance to provide advanced tanks to Ukraine and skepticism over military investment in Ukraine from House Republicans. Meanwhile, Joanna Kakissis explained for NPR, Putin will seize on the news to bolster his characterization of Ukraine as a western puppet and threat to Russian security, incompetent in purported independence without Russian intervention.

In fact, the ouster is a good sign for Ukraine and should bolster western support, Gvozdiy said. Zelensky is signaling to Ukrainians and the world that contemporary Ukraine has "complete intolerance to the corruption."

Formerly, politicians robbed public coffers, and any court order to halt corruption was unenforceable, he said. The ouster now demonstrates Ukraine's remarkable progress in only a few years.

Yet in the present war, the bar is among democratic institutions fighting for survival, Gvozdiy said. The bar "would wither and absolutely disappear under Russian law."

Ukrainian advocates have "never stopped practicing law during the war," Gvozdiy said. Their work has included the defense of prisoners of war, if often to the chagrin of Ukrainians. (Other members of the legal community, such as prosecutors and judges, are busy too, for example, collecting evidence of war crimes. They are law-educated, but, unlike advocates, not members of the bar, as Ukraine follows a bar model in the European civil law tradition.)

Upholding the rule of law is the lawyer's constitutional obligation, Gvozdiy said. "We're not defending their crimes," he said of the POWs. "We defend their human rights."

One program attendee asked what American lawyers can do to help. Relayed by Bogden, the questioner expressed frustration that we don't have on-the-ground skills with obvious application, like other professionals have. 

I often have shared this frustration. We can't charge to the rescue like healthcare workers, nor mission like clergy. Even for pro bono projects at ABA conferences in the United States, I've picked up litter and organized dogs for vaccination, but I've never been asked to use my skills as a lawyer.

Gvozdiy's response was revealing, but not gratifying. Ukrainian lawyers need not just financial support, he said, but mental health support.

"We need professionals who can help us in a professional way to understand better how we need to behave and work and combine war with the practice of law," he explained. "We need training ... which will teach us how to react and how to reflect, how to communicate, how to live in peace with yourself and with all this pressure as a professional."

I'm not sure we're well stocked in the United States with experts in practicing law in a war zone. But when the conflict finally comes to an end in Ukraine, I know where we can find some.

In shadow of Ukraine war, webinar tells story of UN Genocide Convention, Polish-Jewish jurist Lemkin

The Jagiellonian Law Society and its President Elizabeth Zechenter, a visiting scholar at Emory, have put together another superb program prompted by the legal implications of the war in Ukraine.

"Lemkin, Genocide, and the Modern World" will run on Zoom in two parts, the first on December 1, 2022, at 12 noon U.S. EST, 1700 GMT, and the second in January, TBA. Free registration is required.

Here is a summary:

You are invited to a webinar on Raphael Lemkin, the UN Genocide Convention, and the likelihood of prosecution of the crime of genocide. Distinguished academics will discuss Lemkin and the Genocide Convention in light of the recent Russian aggression in Ukraine. Lemkin was Polish and Jewish and survived WWII. He had complex, divided loyalties and life experiences that influenced his work. He is often portrayed as a lone ranger, but he was effective in gaining support for his ideas, especially among women groups, who made the convention possible. Lemkin had a complex relationship with Stalin, which influenced his approach to the convention.

The Holocaust Encyclopedia has more on Raphael Lemkin.

Speakers include:

• Professor Donna Lee-Frieze, Deakin University, Melbourne, Australia, a genocide studies scholar specializing in memory and aftermath; 
• Professor Doug Irvin-Erickson, Carter School Director of the Genocide Prevention Program at George Mason University;
• Professor A. Dirk Moses, Australian historian teaching in political science at the City College of New York, CUNY;
• Professor Roman Kwiecien, Department of International Law at Jagiellonian University, arbitrator at the Permanent Court of Arbitration in the Hague) and the Court of Conciliation and Arbitration within the OSCE in Geneva;
• Professor Marcin Marcinko, Jagiellonian University Law School, chair of the National Commission for Dissemination of International Humanitarian Law at the Main Board of the Polish Red Cross, and co-organizer of the Polish School of International Humanitarian Law of Armed Conflict.

The Jagiellonian Law Society hopes also to feature contributions from Ukrainian scholars, arrangements pending.

The program is a result of the collaboration of the Jagiellonian Law Society with support from the International Human Rights and Women Interest Committees of the American Bar Association; the New York State Bar, New York City Bar, and New Jersey Bar; the Department of Russian and East European Studies at the University of Pennsylvania; and the School of Diplomacy and International Relations at Seton Hall University.

Again, registration is free.

As Jacoby talk commemorates Kristallnacht, Ukraine recurs in historical record of flights from oppression

An upcoming talk on Kristallnacht, a recent experience in the Paraguayan Chaco, and the ongoing war in Ukraine have me thinking lately about cultural and religious freedom.

In commemoration of Kristallnacht, award-winning Boston Globe columnist Jeff Jacoby will speak at the S. Joseph Solomon Synagogue of the Maimonides School in Brookline, Massachusetts, on Sunday at 7 p.m. The talk will be livestreamed.

Jacoby's father was the sole survivor of his family at Auschwitz. 

"He didn’t hate God for what he had lost and didn’t abandon the Judaism in which he had been reared," Jacoby wrote of his father. "On the contrary, he deepened it with observance, study, and prayer."

Last week I had the privilege of visiting Mennonite communities in the Chaco region of Paraguay. Mennonites arrived in Paraguay in three waves, circa 1875, 1930-32, and 1947. Each time, they sought refuge from regimes that wished to extinguish their religious freedom, if not their lives.

Restored "Koloniehaus" at Filadelfia, Paraguay
RJ Peltz-Steele CC BY-NC-SA 4.0

On a world map at the Fernheim Colony House in Filadelfia, I was struck in particular by one remarkable line tracing Mennonite migration. The journey ran eastward from Ukraine, then Austria-Hungary, to Siberia in 1908; then further east to China, turning south to Indonesia in 1927; then turning back westward across the Indian Ocean and isthmus of Suez, to Europe; and at last on to Paraguay to join the end of the second migration there in 1932.

Besides the astounding odyssey it represented, the line resonated with me both because of the current conflict in Ukraine and because my own grandfather's Jewish family fled what is today western Ukraine at about the same time.

Map at the Filadelfia Mennonite Museum,
similar to the one at the Colony House
RJ Peltz-Steele CC BY-NC-SA 4.0
with no claim to underlying work

As has been widely reported, one Russian strategy in the present war in Ukraine is the forced relocation of Ukrainians, especially children, to Russia, whether to be given passports and politically and culturally Russified, or, in the case of dissenters and combatants, to be condemned and disappeared in remote parts. The strategy is not new.  Just before the Russian invasion of Ukraine in February, I wrote about the forced relocation of Polish ethnic minorities, such as the Lemkos, from western Poland to Soviet Russia in 1947.

The parallels are not coincidental.  The Mennonites fled increasingly unstable Austria-Hungary for Russia before the outbreak of World War I. Then, scarcely a decade after the Russian Revolution, rising nationalism rendered even Siberia inhospitable, prompting the exodus of the late 1920s. After World War II, Mennonites remaining in an eastern Germany about to be gifted to the Soviet Union departed in another migratory wave, in 1947. They were not alone; justifiably afeard Christians of other sects departed as well.

Engrossed in the map in Paraguay, I muttered something unkind about Putin. Standing nearby, Fernheim archivist Gundolf Niebuhr said quietly, "History repeats itself."

Niebuhr and I talked about the complex relationship of the contemporary Mennonite Paraguayans with their Latino and indigenous neighbors.  They work closely together, literally, on farms, in schools, and in governance.

But the legacy of repeatedly fleeing oppression, Niebuhr told me, is that even in prosperous and peaceful times, people are dogged by a lurking anxiety over the inevitable impermanence of the idyll. To look around, the Mennonites and their partners have defined the unique cultural identity of the human Chaco. Yet are the Mennonites still only visitors? Will the day come when Asunción says, assimilate, or else? And it will be time to move on again.

Struggle and perseverance are enduring themes in Jewish identity. The former seems inescapable, as expressions of antisemitism abound. Hate simmers now in the Twitter scandals of Kyrie Irving and Kanye West.  Last week, mourners marked the fourth anniversary of the Pittsburgh synagogue attack. Yet the Jewish tradition teaches that anxiety is counter-productive. God will light the way, as always he has. That seems to have been the remarkable faith walk of Jeff Jacoby's father. Still, there are scarce few among us who do not struggle to eschew fears and doubts.

The Jewish people have a strong claim to unrivaled familiarity with persecution. But assimilation and expulsion of the other seems well ingrained in the human mode of operation, regardless of the nature of the otherness. An elder of my Christian church reminded me yesterday that being Christian is not supposed to be easy. The "Good News" might offer salvation, but leisure and luxury are not part of the methodology, at least not in this life.

I live without fear of being alienated in, or exiled from the only home I know. That is a blessing. All of us possessed of that blessing owe open hearts to anyone who loses it, whether in Pittsburgh, Paraguay, or Ukraine.

Invasion of Ukraine marks six months; Russian propaganda flows despite court OK of EU media ban

#IStandWithUkraine

On July 27, the European Union (EU) General Court upheld a continental broadcast ban on Russia Today (RT).

The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."

The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions."  RT agents are allowed to continue reporting in the EU through research and interviews.

By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." 

I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.

I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.

Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime. 

In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.

The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.

For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?

Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.

RT.com via VPN based in Dublin

The actual efficacy of the ban is doubtful, if for no other reason than the internet's famous resilience to censorship. In a study published in July, the Institute for Strategic Dialogue found that RT content was still reaching European consumers through alternative domain names and mirror websites.

It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.

Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.

Court denies Exxon anti-SLAPP relief in Mass. climate claims; European court bemoans Russian SLAPP

AG Maura Healey

The Massachusetts anti-SLAPP statute does not work in defense of Attorney General enforcement actions, the Supreme Judicial Court decided in May in climate change litigation against Exxon Mobil Corp. Europe and the UK, meanwhile, are working out their approaches to anti-SLAPP.

I am in general anti anti-SLAPP, because the statutes are drawn too broadly. I recited my lamentations in April 2021. I support anti-SLAPP in principle when it works the way it was intended, but broadly drawn anti-SLAPP statutes create innumerable headaches and are used to protect Goliath from David as often as the other way around. Exxon's attempted reliance on the law fits the mold.

With the usual American MO, anti-SLAPP statutes try to slap an ill-fitting patchwork fix on a systemic problem, which is transaction costs in civil litigation, declaring the problem solved while in fact it festers, rotting social and political institutions from the inside out. Only when a bridge collapses does everybody momentarily notice, and then we move on.

The Massachusetts Supreme Judicial Court narrowly saved the bridge from collapse this time by rejecting Exxon Mobil's invocation of the commonwealth's typically broad anti-SLAPP statute. Exxon is defending itself against Attorney General Maura Healey. The AG accuses Exxon of deceptive statements that concealed what Big Oil knew about the climate risk of fossil fuel extraction, thus, responsibility for climate change. 

State and locality climate change lawsuits against Big Oil are proliferating in the United States and the world right now, as governments try to figure out where they will get the money to bolster infrastructure against rising sea levels and tempestuous weather events. In the context of "super torts," I wrote in November 2020 about the lawsuit against Big Oil by my home state of Rhode Island. By focusing on claims in state law, public plaintiffs such as my childhood hometown of Baltimore have managed to steer their claims into state court, evading the impact of a U.S. Supreme Court inclination to see the claims in federal court, as Big Oil defendants would prefer.

Accordingly, AG Healey is pursuing the commonwealth claim under Massachusetts's expansive unfair and deceptive practices act, chapter 93A. The powerful law affords double and treble damages and attorney fees in cases of willful and knowing violations, and it can be used as a private or public enforcement mechanism.

Exxon attempted to use the commonwealth's anti-SLAPP statute in its defense. The essence of Exxon's public statements about the environmental safety fossil fuels constituted participation in the public marketplace of ideas, Exxon asserts, so the AG's persecution is just the sort of action that anti-SLAPP should head off.

One limitation, thankfully, in the Massachusetts anti-SLAPP law is that it hinges on petition activity, not merely free speech. There is some margin around the word "petition," as the statute draws in public statements "reasonably likely to encourage consideration or review of an issue" by government. But the anti-SLAPP statute cannot be triggered simply because whatever civil wrong the defendant is accused of was accomplished by way of communication.

The AG objected to Exxon's invocation of anti-SLAPP on this distinction, because Big Oil made plenty of problematic statements to the public. I think she's right. But the court did not get that far. Rather, the court held in favor of the AG on her alternative argument, that the anti-SLAPP statute simply does not apply to public enforcement actions by the AG.

There is a questionable logic to Exxon's theory that petitioning must be protected against attack when the attacker is the petition-ee, government. A petitioner might be expected instead to make a First Amendment retaliation claim, if the attack theory holds up. Also, the anti-SLAPP statute, in a second provision, authorizes intervention by the AG on behalf of anti-SLAPP movants. So the legislature knew how to say "attorney general" when it wanted to, and the AG isn't mentioned anywhere else.

More importantly, the Supreme Judicial Court held, defense against a public enforcement action is not consistent with the legislative purpose of the anti-SLAPP statute: "The legislative history makes clear that the motivation for the anti-SLAPP statute was vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval." That's the paradigmatic case that gave birth to anti-SLAPP in 1988.

The court observed that its holding accords with one other jurisdiction that has considered the same problem. The Supreme Judicial Court of Maine declined to apply its anti-SLAPP statute in a municipal enforcement action for a zoning violation, despite the would-be movant's assertion of victimization.

Curious, though, that mass-media-Goliath defense against defamation and privacy lawsuits didn't get a mention in the court's main text. In a telling footnote, the court opined:

Although originally drafted with a particular purpose in mind—that is, the prevention of lawsuits used by developers to punish and dissuade those objecting to their projects in the permitting process—the anti-SLAPP statute's broadly drafted provisions, particularly its wide-ranging definition of petitioning activity, have led to a significant expansion of its application.... The ever-increasing complexity of the anti-SLAPP case law has also made resolution of these cases difficult and time consuming.... We recognize that this case law may require further reconsideration and simplification to ensure that the statutory purposes of the anti-SLAPP statute are accomplished and the orderly resolution of these cases is not disrupted.... We also note that other States have defined petitioning activity more narrowly and that bills have been filed in our Legislature to do the same....

I don't want to be an I-told-you-so, but.... 

Europe and the UK might ought take heed.

The UK invited public comment in a consultation in the spring as it ponders anti-SLAPP, and the European Commission is working out legislation now for the European Union.

In a March judgment, the European Court of Human Rights (ECtHR) recognized SLAPPs as a human rights problem. The court held that a regional Russian government had violated free speech rights with a civil defamation action against an online media outlet critical of officials. 

Of course, the Massachusetts and Maine cases should only aggravate the European court's worry, because it was a public authority that was the complainant in Russia. What if AG Healey were on a crusade against news outlets, using the deceptive practices law to persecute newspapers critical of the commonwealth government? (Is that how Exxon sees itself, victimized?) Would anti-SLAPP not be an apt defense?

The problem did not wholly escape the court's notice. The court struggled to distinguish an earlier Massachusetts case, Hanover, in which the applicability of anti-SLAPP in public enforcement simply had not been challenged when a town sued a union in a row over procurement. In a final footnote, the court wrote: "We note that the union in Hanover was not seeking to employ the anti-SLAPP statute to prevent local government enforcement of laws. As the issue was not raised in that case, and is not raised here, we need not decide whether any or all local government enforcement actions are beyond the scope of the anti-SLAPP statute."

So while the court lamented the burgeoning complexity of anti-SLAPP with one breath, it opened the door to more confusion with the next.

Hanover was characterized as an abuse-of-process suit, and therein lies a suggestion, I believe and have written before, of a better way to manage SLAPPs.

The Massachusetts case is Commonwealth v. Exxon Mobil, No. SJC-13211 (Mass. May 24, 2022). Justice Scott Kafker wrote the unanimous opinion. Track the case at the Climate Change Litigation Database.

The ECtHR case is OOO Memo v. Russia, No. 2840/10 (Eur. Ct. Hum. Rts. Mar. 15, 2022).

Putin's war strains ties to Belgrade

In Belgrade, Serbia, on Sunday, I was surprised to see a couple of pro-Russian T-shirts for sale on the main shopping strip. One had an image of Putin; another, to the lower right in my photo below (CC BY-NC-SA 4.0), bore the iconic Russian "Z."

These shirts were exceptional, to be clear. They were the only ones of their kind that I saw, and neither was displayed prominently. Also, the "Z" shirt was for sale from a cart that was heavy on Serb patriotism and sold some of the faux-old Soviet hats and pins that can be found throughout the former SSRs.

Still, I was struck that someone had gone to the trouble to manufacture these items recently. And nothing pro-Ukraine was to be seen.

I might ought not have been surprised. My local guide told me that the 1999 NATO bombings of Yugoslavia in the Kosovo affair still sit heavily here—notwithstanding recognition of the misguided nature of leadership by once-President Slobodan Milošević, who died in prison in The Hague in 2006.

A bombed-out portion of the Serbian Ministry of Defense building stands unrepaired today in Belgrade as a deliberate reminder of the attack (below, public domain image in 2005 by Not Home).

In the historic old-fort area of Belgrade, a display of military hardware proudly includes the surface-to-air missile launcher said to have shot down a U.S. Air Force F-117 stealth aircraft in the 1999 engagement (my photo below, CC BY-NC-SA 4.0). The U.S. pilot ejected and was rescued.

In the Cold War, Belgrade was the de facto capital of the non-aligned movement, positioning Yugoslavia as a buffer between East and West. Serbia's inclinations have thus always vacillated. Evidence of waxing and waning relations with the West appears in the strong presence of western cultural institutions in the city and an eclectic mix of architectural styles in post-World War II reconstruction (including bigamous brutalism).

While there surely do remain a hard edge of NATO skepticism and persistent thread of nationalism in Serbian politics, the mood on the street, at least in progressive Belgrade, is not so disdainful. My guide said that most people in Belgrade, if asked today, would go ahead and give Kosovo its formal independence. And Al Jazeera reported 11 days ago that even "pro-government tabloids [in Serbia] have turned on Putin."

With a Serbian eye on EU membership, the country might not be able to resist the pull westward. The wounds and memories of 1999 might have to make peace at last with a new global order.

'Now NATO might join Ukraine,' experts opine

In Washington, D.C., the International Law Section of the American Bar Association receives a message from Ukraine. Attorney Michael Burke is at the lectern; Ambassador William B. Taylor is at the table. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to depicted video.

The war in Ukraine is not only about Ukraine, and Ukraine will prevail if the West expands military support.

Those were the top takeaways from experts at a panel of the American Bar Association International Law Section (ABA ILS) in Washington, D.C., today, April 28.

The panel at the Capital Hilton comprised William B. Taylor, U.S. ambassador to Ukraine from 2006 to 2009 and now vice president for Russia and Europe at the NGO U.S. Institute of Peace; Vladyslav Rashkovan, a board member of the International Monetary Fund and former governor of the Ukraine Central Bank; attorney Michael E. Burke of Arnall Golden Gregory, moderator; and, by pre-recorded message, an attorney in the Kyiv area.  The panelists spoke in their personal capacities, not as representatives of their organizations.

'This war is not new'

I withhold the name of the Kyiv attorney for security; he is a member of the ABA ILS.  As a man under age 60, he cannot leave Ukraine and sent his regrets with the message, recorded on Orthodox Easter, April 24.

Clad in a hoodie and standing before a nondescript wooded background, the Kyiv attorney described persistent air-raid sirens, especially at night, with rockets anticipated to strike "civil" targets all over Ukraine. He described the mentality of the resistance with knowledge that Ukrainian civilians have been killed, tortured, and raped by Russian soldiers.

"This war is not new for us," the attorney said. "It has been around for hundreds of years," hostilities boiling over only most recently in 2014 and 2022.

I was reminded of speaking to a Krakovian friend, a lawyer and long-ago student of mine, in March, earlier in the invasion. Like many Poles, he was planning to host Ukrainian refugees in Warsaw, where he lives now.  

"It's the Russians again," he said matter-of-factly.

The Kyiv attorney emphasized a recurring theme we hear from Ukrainian officials and commentators, that the war is not only about Ukraine. Rather, "Ukraine is just the first obstacle in the way of Russia," he said. If Russia is not stopped in Ukraine, "European kids and families will keep dying in their homes."

The attorney urged lawyers from around the world to reach out to their political leaders to emphasize the importance of supporting Ukraine, especially militarily.

"Please do your best to support Ukrainians," he concluded. "And keep praying for Ukraine and the brave Ukrainian army."

Ukraine will win, if ...

If western military aid to Ukraine persists and expands, Ambassador Taylor predicted, Ukraine will win the war.  Presently, he explained, Russia is "probing" eastern Ukraine for weakness and softening defenses with air and long-range artillery strikes, while "preparing for a big offensive."

Rashkovan echoed the characterization of conflict with Russia as enduring for "centuries." The February 24, 2022, invasion was "a shock, but not a surprise," he said.

Russia has coveted Ukraine since the 20-aughts, Rashkovan said. To Russia's frustration, every attempt to draw Ukraine closer had the effect of pushing it away.

According to Rashkovan, surprises did follow the invasion of Ukraine, but they were for Russian President Vladimir Putin and for the West.

Putin "believ[ed] his own propaganda," Rashkovan said, citing a recent piece in The Economist by Ian Bremmer. Putin thought "Ukrainians would be waiting with flowers."

Another surprise to Putin was that Ukrainian resistance proved to be sustainable, Rashkovan said.  In contrast, the Russian army proved "not so modern," "not prepared for 21st-century war," "not ready to fight in the streets, against drones and [civic] groups.  They are fighting [with] a strategy of the [19]80s."

Putin also miscalculated by giving a speech in February declaring interest only in the Ukrainian coast, immediately before Russia bombed targets nationwide, Rashkovan said.  The duplicity created "outrageous anger" and "unity" in Ukrainians and in the world, rather than the fear that Putin intended.

Surprises resulted for the West, as well, Rashkovan said. The West "finally understood" that conflict in eastern Ukraine, simmering since the 2014 invasion of Crimea, was about more than the Donbas region and more than just Ukraine.

"I don't want to say for Europe," because Europeans remained reluctant to give up business with Russia, Rashkovan said.  But now it has become clear that Putin stands against the western liberalism of the last half century and norms that it has generated: "globalization, humanism, ... multiculturalism, tolerance, and democracy."

"Ukraine is now on the front line of this fight," Rashkovan said. "Let's be frank.  Until recently, the West was not ready to fight for Ukraine. And Putin showed that he is ready to fight."

The defense of Ukraine should be instructive to the West, Taylor and Rashkovan both said, resulting in the joke, "Now NATO might join Ukraine."

But the joke is "not crazy," Taylor said.  Ukrainians "are showing how to fight, how to win this war."  Upon a Ukrainian victory, he opined, the West should guarantee Ukrainian security against future invasion, whether through NATO or another agreement binding in international law.

Stop saying 'off ramp'

I was pleased to hear a harder line from Ambassador Taylor than I hear from the U.S. leaders that Taylor no longer represents.  Evidently, I am not the only person tired of hearing commentators chatter about the need for an "off ramp" for Putin, a compromise, or my word, "appeasement."

"I am not interested in an off ramp," Taylor said. "Putin caused this problem" by invading a peaceful neighbor that posed no threat and made no provocation.

An "off ramp suggests that we should find something to help him save face," Taylor explained. "No, no.  He needs to find a way out."  When Putin realizes he is losing the so-called "second phase" of the war, if Western military aid does expand, Putin "will look for an off ramp, something to convince the Russian people that it was worth all this.  Good luck with that."

Taylor said he is not worried about Russian aggression against other countries, such as Moldova, as long as Ukraine prevails. Without control of the Ukrainian coast, Taylor opined, Putin "doesn't have the manpower ... to go all the way across the south."

And Russia will not use the nuclear option, Taylor said. "I don't think Putin is suicidal," nor "crazy." "[W]e have to be ready," he said, but "Washington sees no indication of an operational step toward that."

However, if western military aid is not expanded, and Russia does gain control of Ukraine, "then that would be a threat," Taylor said. Besides Moldova, Russian aggression would threaten Georgia, the Balkans, and, ultimately, NATO allies.

"This is not the last war in Europe" if Russia prevails, Rashkovan agreed. "Who knows about Sweden and Finland," countries that recently signaled their intentions to join NATO, "now under critic[ism] from Russia. Who knows about Poland."

Zelensky stars

Both Taylor and Rashkovan praised the leadership of President Volodymyr Zelensky as key in the defense of Ukraine.

Taylor was in Kyiv just three weeks before the invasion, he said, and he met with political opposition leaders, who were characteristically critical of Zelensky.  Upon the invasion of February 24, "that changed....  Zelensky has motivated and inspired leaders, parliaments, nations around the world."  Now, in the context of the war, opposition leaders line up "nearly 100%" in support of the president, Taylor said.

Famously an actor and comedian before entering politics, Zelensky was a sort of Stephen Colbert of Ukrainian "late night" fame.  (Colbert has "run" for the U.S. Presidency more than once, since 2008, in mixed satirical and activist capacities.)  A pledge to eradicate corruption saw Zelensky to a stunning 73% electoral victory in 2019.  When war broke out, Taylor said, it was Zelensky himself who gathered and energized the Ukrainian leadership.

"He understands the Ukrainian people because of his entertainment background," Taylor said. His audience is the electorate.  "It's that connection with the leader and the people that gives him the strength, the moral strength."

China watches and learns

Taylor commented also on the perspective of China.  Just before the invasion, at the Olympics, Beijing broadcast its allyship with Moscow. China has been conspicuously non-committal since.  It has not joined western efforts to arm Ukraine, but has refrained from speaking favorably of the invasion and has not moved to undermine western sanctions. In fact, Taylor said, many Chinese firms are respecting the sanctions.

China's strategy is pragmatic.  Before the invasion, China was the biggest foreign investor in Ukraine, Taylor explained. And Chinese economic planners have their eyes on the European market, "which dwarfs the size of the economy in Russia."

Moreover, the Chinese are studying Russia's exploits relative to the matter of Taiwan.  "President Xi is watching very carefully the response of the United States and NATO, putting sanctions on a central bank," Taylor said. "That probably opened some eyes in China: 'Can they do it to us?'"

And China is watching the military engagement on the ground, too, Taylor said. China might be wondering whether, like Russia, its army is not as strong as Beijing has calculated, and whether Taiwanese resistance to a takeover might be stronger than anticipated.

Lawyers and sanctions help

Both Taylor and Rashkovan told the ABA ILS audience that lawyers are important in the Ukraine conflict, now and in the future.  Lawyers play a role now in documenting and calculating infrastructure losses in Ukraine, Rashkovan said. Data are being fed to the World Bank in anticipation of a reparations bill that might someday issue to Russia.

Meanwhile, Rashkovan said, lawyers should be helping Ukrainian people and businesses to design "legal class action[s]" against Russian defendants.  "I don't know the practicalities," he said, "but we should deliberate this further."

Taylor said that American lawyers can support the investigation of war crimes notwithstanding U.S. non-ratification of the Rome Statute that created the International Criminal Court.  Lawyers can help, too, to strengthen sanctions, which must be made "more targeted and smarter," Rashkovan said.

To evade sanctions, "Russia will start looking for the back doors," Rashkovan said. Russia still imports western food through eastern European and central Asian allies; Rashkovan joked about "Belarusian parmesan," before Belarus, too, came under sanctions.

According to the Crimean play book, he said, Russians will take over businesses from fast food, such as McDonald's, to car manufacture and aerospace, "knowing the techniques" to keep them running. But Rashkovan predicted that "the capacity of Russia to produce something serious, high tech, will diminish substantially."

Acknowledging that not everyone sees sanctions against Russia as necessarily enduring as long as Putin's presidency, Taylor suggested that sanctions will outlast the war, "[b]ecause when they [Russia] lose, they will be back.

"They will not give up," Taylor said, at least not as long as Putin remains on his "almost mystical mission, his commitment to dominate Ukraine."