Lawfare: Use of the Definition of Aggressive War by the Soviet and Russian Governments

215 Pages·2009·1.08 MB·English

by  Christi Scott Bartman

LAWFARE: USE OF THE DEFINITION OF
AGGRESSIVE WAR BY THE SOVIET AND RUSSIAN GOVERNMENTS

Christi Scott Bartman

A Dissertation

Submitted to the Graduate College of Bowling Green
State University in partial fulfillment of
the requirements for the degree of

DOCTOR OF PHILOSOPHY
August 2009
Committee:
Don K. Rowney, Advisor
Gi Woong Yun
Graduate Faculty Representative
Gary R. Hess
John B. Quigley
Marina Yu. Sorokina
© 2009
Christi Scott Bartman
All Rights Reserved
Lawfare: Soviet and Russian Federation Definition of Aggression iii

ABSTRACT

Don K. Rowney, Advisor

This dissertation seeks to contribute to the understanding of the definition of the terms
“aggression” and “aggressive war” by tracing the political, legal and military use of the terms by the
Soviet Union from that posed at the 1933 Convention for the Definition of Aggression to the
definition posed by the Russian Federation to the International Criminal Court in 1999. One might
ask why the Soviet Union so adamantly promoted a definition of aggression and aggressive war
while, as many have noted, conducting military actions that appeared to violate the very definition
they espoused in international treaties and conventions. This dissertation demonstrates that through
the use of treaties the Soviet Union and Russian Federation practiced a program of “lawfare” long
before the term became known. Lawfare, as used by the Soviet Union and Russian Federation, is the
manipulation or exploitation of the international legal system to supplement military and political
objectives. The Soviet Union and Russian Federation used these legal restrictions to supplement
military strategy in an attempt, not to limit themselves, but to control other states legally, politically,
and equally as important, publicly, through the use of propaganda.
Lawfare: Soviet and Russian Federation Definition of Aggression iv

This work is dedicated to my daughter Ashley. Never stop learning.
Lawfare: Soviet and Russian Federation Definition of Aggression v

ACKNOWLEDGMENTS
This dissertation, and in fact, my enrollment in the Policy History Program at Bowling Green State
University (BGSU), would not have been possible without the support and commitment of Dr. Don
K. Rowney. This dissertation is the result of a wonderful partnership that was formed the first time
he invited me to sit on his porch to discuss entrance into the program. Working with him later at the
Nuremberg conference gave me the opportunity to take my understanding of law and history to a
new level and truly appreciate the role history plays in today’s events. Finally, this finished product,
under his guidance, has allowed me to accomplish the goal I set out to achieve in 2004. I cannot
thank him enough for the honor and privilege of working with him to achieve it. Gary R. Hess,
Distinguished Research Professor of History, BGSU; Gi W. Yun, Assistant Professor, Department of
Telecommunications, BGSU; John B. Quigley, President's Club Professor of Law, Moritz College of
Law, The Ohio State University; and Marina Yurievna Sorokina, Senior Fellow, Russian Academy
of Sciences Archive; Leading Fellow, Head of the Division, Dom "Russkoe Zarubezh'e im. A.
Solzhenitsyna" are the other members of my dissertation committee and also deserve special thanks.

The general introduction to the topic of aggressive war and my first trip to Moscow were the result
of an introduction by Dr. Rowney and Dr. Heinz Buhlman to the Robert H. Jackson Center and its
efforts to form a working relationship with BGSU. During my first visit to Moscow, Dr. Natalia
Sergeevna Lebedeva and Dr. Yuri Mikhailovitch Korshunov, of the Institute of Universal History of
the Russian Academy of Sciences were most gracious hosts at the 2006 conference “Nuremberg
Process: The Lessons of History.” Ivan Tertichnii, a law student at Moscow State Legal Academy,
introduced me to the law library and its contents. Marian Dent, Dean of the Pericles American
Business & Legal Education Project in Moscow, introduced me to Stacey Meyer, a student studying
with her, who helped me locate some initial works in the Russian libraries.

Dr. Tim Pogacar, Irina Stakhanova and Ian Mladjov spent countless hours working with me on my
language skills to prepare me for my second trip to Moscow and the Russian archives in 2007. That
trip was made immensely less daunting by the assistance of Ludmila Alexandrovna Moshkareva.
Ludmila accompanied me to the archives and supplemented my elementary command of Russian to
make the process much more productive. Elena Yurievna Nenarokova, a student at Moscow State
University, continued to work with me on my language skills and translation of some of the archival
documents. Upon my return, I met Jim Toppin and Janet Traub. Jim’s assistance was invaluable for
my both my language skills and translation. Jim and Janet made the process of translating the results
of my archival work a true pleasure. Although I worked with several people while translating the
materials, any mistakes are all my own.

Although many archivists and librarians were extremely helpful, one in particular deserves to be
singled out. Janet Crayne, Librarian, Head, Slavic and East European Division, Hatcher Graduate
Library, at the University of Michigan gave me a broad initial overview of works, websites, and
experts at the very beginning of my research. Her continued support has been appreciated.

I am grateful to Dr. Albert U. Mitchum Jr., Political Advisor to the commander of Air Combat
Command, Langley Air Force Base, Virginia who introduced me to the concept of lawfare. I hope
this dissertation contributes to further discussion on the subject.
Lawfare: Soviet and Russian Federation Definition of Aggression vi
Finally, my family. To Mark, Nathan and Aubrey, thanks so much for your support. But I end with
the same comment I made at the beginning, this would not have been possible without the support of
my daughter Ashley. I could not have completed the Ph.D. program without her help with Nathan
and Aubrey and her continuous emotional support. I contribute this success in great part to her and
look forward to her many future successes.
Lawfare: Soviet and Russian Federation Definition of Aggression vii

TABLE OF CONTENTS
Page
INTRODUCTION ................................................................................................................. 1
TREATY OVERVIEW ............................................................................................ 14
THE ONGOING DEBATE ...................................................................................... 18
CHAPTER 1. TREATIES PRIOR TO WORLD WAR II ................................................... 27
ESTABLISHING THE DEFINITION ..................................................................... 30
SUMMARY ............................................................................................................ 41
CHAPTER 2. MOLOTOV-RIBBENTROP PACT, POLAND AND FINLAND ............... 42
MOLOTOV-RIBBENTROP PACT .......................................................................... 43
THE SOVIET INVASION OF POLAND ............................................................... 45
WINTER WAR .......................................................................................................... 48
SUMMARY ............................................................................................................ 52
CHAPTER 3. THE NUREMBERG TRIAL AND INDIVIDUAL RESPONSIBILITY ..... 54
LONDON CONFERENCE ...................................................................................... 58
THE NUREMBERG TRIAL ..................................................................................... 64
SUMMARY ............................................................................................................ 70
CHAPTER 4. THE KOREAN WAR.................................................................................... 72
BUILDUP TO THE WAR ......................................................................................... 74
LAWFARE AT THE SECURITY COUNCIL .......................................................... 78
SOVIET STATEMENT TO THE WORLD .............................................................. 83
CONTINUED EFFORTS IN THE GENERAL ASSEMBLY .................................. 89
Lawfare: Soviet and Russian Federation Definition of Aggression viii
SUMMARY ............................................................................................................ 93
CHAPTER 5. HUNGARY .................................................................................................... 95
BUILDUP TO THE UPRISING ............................................................................... 98
EVENTS OF THE UPRISING ................................................................................. 101
PUBLIC OPINION ................................................................................................... 106
SUMMARY ............................................................................................................ 112
CHAPTER 6. CZECHOSLOVAKIA, VIETNAM AND GENERAL ASSEMBLY
RESOLUTION 3314 (XXIX) ................................................................................................ 114

CZECHOSLOVAKIA AND THE BREZHNEV DOCTRINE ................................. 117
VIETNAM ............................................................................................................ 122
GENERAL ASSEMBLY RESOLUTION 3314 (XXIX) .......................................... 127
SUMMARY ............................................................................................................ 136
CHAPTER 7. AFGHANISTAN ............................................................................................ 138
BUILDUP TO THE WAR ........................................................................................ 141
DEBATE ............................................................................................................ 153
SUMMARY ............................................................................................................ 156
CHAPTER 8. CHECHNYA, INTERNATIONAL AND INTERNAL CODIFICATION OF
AGGRESSION ............................................................................................................ 158

CHECHNYA ............................................................................................................ 162
INTERNATIONAL CODIFICATION OF AGGRESSION ..................................... 168
INTERNAL CODIFICATION OF AGGRESSION .................................................. 172
SUMMARY ........................................................................................................... 179
CHAPTER 9. CONCLUSION.............................................................................................. 181
GLOSSARY OF ABBREVIATIONS AND ACRONYMS ................................................. 190
Lawfare: Soviet and Russian Federation Definition of Aggression ix

BIBLIOGRAPHY .................................................................................................................. 191
Introduction 1

INTRODUCTION
With fighting going on all over the globe – including in India, Pakistan,
Cyprus, the Congo, Cambodia, Vietnam and the Middle East – it was clear
that it was easier to commit aggression than to define it.
Benjamin Ferencz1

In 1933, E.A. Jelf, in “What is ‘War’? And What is ‘Aggressive War’?” prophetically
concluded that “the aggressor is the party who in the particular case has international law or the rules
of morality against him. An aggressive war is a war waged by that party in pursuit of his aims.”2
Since that time, many have espoused the definition of aggression and aggressive war. None more so,
however, than the Soviet Union and subsequently the Russian Federation.3
One might ask why the Soviet Union so adamantly promoted a definition of aggression and
aggressive war while, as many have noted, conducting military actions that appeared to violate the
very definition they espoused in international treaties and conventions.4 This dissertation proposes
that through the use of treaties to supplement military strategy, the Soviet Union and Russian
Federation practiced a program of “lawfare” long before the term became known. Lawfare is the
manipulation or exploitation of the international legal system to supplement military and political
objectives.

1 Benjamin Ferencz, “The United Nations Consensus Definition Of Aggression: Sieve Or Substance?”
Presented at the Washington Conference on Law and the World, October 1955.
www.benferencz.org/arts/13.html. (accessed 30 July 2008).
2 E.A. Jelf, “What is ‘War’? And What is ‘Aggressive War’?” Transactions of the Grotius Society 19, Problems
of Peace and War, Papers Read before the Society in the Year 1933. (1933):112.
3 The term “Soviet Union” is used throughout this dissertation to mean the Union of Soviet Socialist Republics
(USSR), a constitutional socialist state existing from 1922-1991. The Russian Soviet Federated Socialist
Republic (RSFSR) was the largest of the Soviet republics of the Soviet Union. After the dissolution of the
Soviet Union in 1991, the RSFSR became the Russian Federation.
4 For the purposes of this paper, the generic term “treaty” will be used from hereon as defined by the United
Nations as a generic term encompassing all instruments binding at international law between international
entities intended to create legal rights and duties in written form. United Nationals Treaty Collection Reference
Guide. http://untreaty.un.org/English/guide.asp.