Professor Burke-White is an expert on international law and global governance. He served in the Obama administration from 2009 to 2011, on Secretary Clinton’s policy planning staff, providing the Secretary direct policy advice on multilateral diplomacy and international institutions.
It’s a pleasure to be with you this morning.
Looking at the events surrounding the Euromaidan, or what is called the Euromaidan, in Ukraine how do you see the possible ways out of this impasse, from the perspective of international law?
It’s a difficult question, in part because our moral sentiments and the law may not always be on the same side. Obviously, I, personally, am very glad to see the Ukrainian people raising their voice and standing up for what they believe in. At the same time, international law tends to support the government that’s in power, particularly when that government has been legitimately elected, and until such a time as the government commits acts so heinous as to undermine its legitimacy. And that means that simply overthrowing or toppling the government may not receive broad recognition internationally. It also means that sometimes operating within constitutional rules, rather than outside of them, may be a better strategy.
So what does that mean about where this protest could go? On one hand, it could continue to grow to be so large that it toppled the existing government, and, regardless of where the law is, as long as that protest does so without resorting to violence, then eventually, I think, the protesters would come into power and replace the existing government. But, I think, that is hard to do, as we’ve seen in the Arab Spring, it’s very hard for a protest movement to overthrow an existing government.
On the other hand of the spectrum, one could negotiate a solution with the current government. That usually requires two things. One – there being a clear voice of the opposition, who is both able and willing to engage with the government. And in the case of Ukraine, I’m not sure I see exactly who that voice would be and, at least from the rhetoric that I hear on TV and elsewhere, not a lot of common ground on which to negotiate such a solution.
The other challenge of a negotiated solution is that the leaders have to be able to actually control the protesters – the leverage that they have when they’re meeting with the current government is that they can say: “If you accede to these demands, the protest will go home.” And, again, I’m not sure that’s the case in Ukraine today, precisely because it is such a broad-based popular uprising.
The last option is, essentially, that the protesters use this as an opportunity to lay down a marker. To say to the government: “We are powerful. We do not like the direction you are taking this country. And, while we will at some point soon go home, we stand ready to return. We will be watching you.” And that’s a message, I think, that resonates very powerfully with international law and with the international community.
For example, the protesters say: “Here are the three constitutional guarantees that we have in our constitution, or that maybe you took away when you revised the constitution, that must be abided by. And in 2015 there will be an election, and it better be a free and fair election.” I think that’s the kind of message and marker that, if it’s put down, and the protesters go home for the holidays, or because it gets too cold – and go home in a coordinated fashion, not just trickle off – the government has to know that if they don’t listen to those demands, these protests will be back.
If we look at the current strategy of the government, do you see any logic behind it? Do you think those are strategically smart moves, if we played devil’s advocate? I mean what happened on the Maidan on the night from November 30 to December 1 and also the recent, two days ago, attempts of the government to disperse the demonstrations.
So, I think the government has made a number of errors, but on at least one ground they are being strategically smart. While there has been some violence, there has not been the kind of bloody incidents, which we saw, say, in Tunisia, in Lybia, where a government decides that it is willing to kill en masse its own people. And that’s strategically smart, not just because it’s in conformity with international law, but the kind of actions that get the United States or other involved that really can overnight shift the balance of political support on this sort of an uprising is those horrible bloody moments on television. And, I think, the government’s withdrawal two days ago was a calculated choice not to cross that line where, they thought, it would shift the political dynamic.
At the same time, I think, the government’s made real errors here. I think the government significantly underestimated the potential for protests. There are protests all around the world every day – there are usually twenty people, two hundred people, or two thousand people. Wise governments figure out how to accede to the demands of those protesters in a minor way or get them to go home. You never, if you are a sitting government, want three hundred thousand, a million, whatever number it was, people out on the square protesting against you. And, I think, the government massively underestimated the willingness of the Ukrainian people to stand up for what they believe in and for their rights.
In retrospect, the government should have dealt with this when it was smaller, less entrenched, easier for all sides to back down – and they didn’t. Which leads us to the impasse we’re in today, where the government, I think, doesn’t want to use real violence, or bloody, horrible violence, even if they are using some real violence. The protesters don’t want to go home without achieving their goals, and that creates this impasse from which it is very hard to back down.
So, on one level, the government is being strategically smart, on the other level, a series of mistakes, where the government overestimated its own power, brought us to where we are today.
If we look at similar events in the past, I mean other countries – what is the usual way of negotiation, if such negotiations were to take place? Who are the actors usually, internationally, nationally, and what are usually the outcomes?
So, where these sorts of things get negotiated successfully, I think, the actors are first of all the concentrated leadership group of the protesters. But a leadership group that is maybe not the person whom government hates most. It’s someone who is respected by the protesters, but also is seen as a real negotiating partner by the government.
It is often the case that the international community does get involved, but it is usually not the United States or Russia, or some other major power in the region that is involved, it’s a minor power. For example, the Middle East, it’s often then the Qataris or the Emiratis, who could be respected by all sides, but weren’t directly involved. I don’t know who that might be here. You can think of kind of a range of middle powers that range from the Swiss to the Canadians. It could also be the EU itself, though that has complications, given the nature of the protesters’ demands. It’s probably not the United States, and not a country that has energy needs in Russia, precisely because then it gets more complicated. So, it may well be a country outside of the region.
And oftentimes what happens is that that country provides what we would call “good offices”, a forum for conversation between the government and the protesters. And then what you would hope would happen is that a negotiation would be reached, in which the government accedes to some of demands, far more than they wanted to, but the protesters often get much less than they wanted to, as well.
In this case, I can see a deal being reached, where the government promises free and fair elections, that it will not sign any agreements on trade or anything else with either the EU or Russia during the current mandate of the government, and that some basic constitutional concerns are addressed. In exchange, the protesters would have to go home, saying “We’re not overthrowing this government. We will give them one final chance, but we’re ready to go to the ballot boxes in 2015.”
To do that, it requires an overlapping win set - both protesters and the government need to be able to find this set of terms that make sense. I think, that also requires the protesters to make much more clear than they have – or maybe it’s just what we’re seeing in the media here that isn’t as clear – as to what their demands are. What are negotiable demands? What are absolute demands? What are the wishes we use to, perhaps, rile up the protesters and keep people on the square, and what are the things we absolutely need to achieve to be able to feel like this was worth doing and a success.
So, I urge the protest movement to clarify its goals. And, also, to clarify them in a way that third countries and others outside of Ukraine can really understand and grapple with. At the same time, I think, the government needs to be willing to say “We want to negotiate.” I haven’t heard that from the government in the meaningful way, either. So, those would be the two markers I would look for, before I would say “It’s time to try to find a negotiated solution.”
Given the fact how clear or unclear the message of the protesters has been to the international community, do you think that the reaction on the part of the international community, and in particular the United States, has been adequate to the situation?
So, the United States, I think, was slow to get engaged here. We saw a strong statement from Secretary Kerry earlier this week. That is very much consistent with the level of engagement the United States usually has. As I started by saying, the law here, unfortunately, is on the side of the government. And that means that the United States doesn’t want to get too far out in front of supporting the protesters against the government. If you look at the U.S. policy in the Middle East, in Tunisia, in Egypt – the U.S. was very slow to formally side against the government. So, what I think the United States has done, is said to the Ukrainian government “Allow the protest to continue and do not crack down on it violently. It’s why Victoria Nuland, the Assistant Secretary of State for Europe, has been in Kyiv this week, precisely because, I think, that makes it much harder for the government to crack down brutally.
But I don’t think you will see a stronger response by the U.S., unless there is such a brutal crackdown. If you think back to Egypt, it was when the protesters were standing on Tahrir square and there was a real threat of massive violence against them, the United States changed its position. If you think about Lybia, it was when Quaddafi rolled tanks at Benghazi that the United States changed its position.
So, what I hope will continue is that the United States will remain very vigilant. I would love to see the President or other senior officials also chime in. But what I think you will see them say is that “We support the goals that the protesters are expressing. We support freedom of assembly and freedom of speech and constitutional government.” But you won’t see them say “We support the overthrow of the current government.”
I also think that for the United States, as well as for some key European states, whether we like it or not, these protests raise broader questions of the relationships in the region. I think these countries will not want to endanger those relationships by getting too far ahead of it.
But the sentiments, the goals of the protest, I think, are supported. To the degree the protesters continue to express those goals in terms that reflect the international human rights movement, the rights to democracy, the rights to constitutional government, to freedom of speech and assembly – that will resonate much more with the international community than will specific claims about joining this trade agreement or that trade agreement or broader claims calling for the overthrow of the government. Those are the kinds of things that, I think, get foreign governments to say: “We don’t want to engage too far here.”
If you think about possible steps by the United States, what is the spectrum of possible reactions, let’s say, in the worst case scenario? In Ukraine, one of the most popular stories is that a petition to the White House gathered 100,000 signatures within three days, mostly from Ukrainian citizens living in Ukraine, urging the White House to impose personal sanctions on President Yanukovich and his government, his surroundings. Is that at all realistic? If not, what are realistic reactions here?
I think it’s unrealistic that the White House will unilaterally impose personal sanctions on Yanukovich. I think, for the White House for the moment, the international agenda is very complicated: there is an ongoing peace negotiation in Iran, there is hope of a peace settlement eventually in the Middle East more generally, there are concerns about an assertive China – all of those things are, not surprisingly, higher on the United States agenda than the current protests in Ukraine.
So, I think, for the White House, this will continue to be a sort of tertiary, rather than primary, concern. I think the thing that would tip that would be a brutal crackdown by the government of Ukraine. And, I think, such a crackdown would lead to a much stronger response. It would be a response that would be framed in much more categorical terms. It could well be a response that leads to the United States try to take action in international fora, or other countries taking action in international institutions where the United States supports it.
And so that worst case scenario, I think, you could well see: sanctions, efforts to refer a case to the International Criminal Court, which I don’t think would be likely, but might be attempted, claims to various human rights institutions and bodies. Short of that, I think that the most you’re likely to see is a kind of continued vigilance by the United States to avoid bloodshed.
I think the call that would resonate most in Washington is not for unilateral sanction, but for efforts to preserve the integrity of the electoral process in 2015. President Obama has talked a great deal – I would urge people to listen to the speech in Cairo back in 2010, just after coming into office, where he says: “We will support the aspirations for democracy, but we will not impose government on you.” And, I think, that is very much his mindset. He doesn’t want to come in and impose a revolution, but if the people ask for help in ensuring that the elections in 2015 are free and fair, I think, that’s the kind of thing the United States would take very seriously.
It’s not too early right now to begin that process, working through the OSCE, the UN, through other organizations to make sure that there is no way that this government – not just by stuffing the ballot box, but by structuring the political process leading up to the election – can undermine the rights and the ability of the Ukrainian people to express their will. So that’s how I would frame an argument to Washington.
A very interesting question has been how do we compare these events in Ukraine to the events in Russia, on Bolotnaya Square. Do you see any similarities and do you see any possible comparisons here?
I think there are similarities. One thing I have been truly impressed by is the strength of the Ukrainian people. And I think much more so than we have ever seen in Russia: today, there are hundreds of thousands of Ukrainians standing outside in what I understand is negative 15 degree weather, and they are still there. And when we look at the protests in Russia from 1991 on, with very few exceptions, they have been relatively small, they have been quite dispersed, quite diffuse, and they have not been as unified as what we’re seeing in Ukraine. And you have to then take into account the fact that Ukraine is a much smaller country than Russia. I did the math yesterday: something like 10 percent of the population of Kyiv was standing out in square. We’ve never seen that in Russia.
And so, I think, to me that’s a suggestion that the trajectories of, perhaps, Russian political culture in history and Ukrainian political culture in history are very different. And one of the things that, I hope, Washington and other capitals see is that this isn’t the kind of protest we’ve seen in Russia. This is a very different kind of political movement, one that, I think, is much stronger and needs to be interpreted on its own terms.
In some ways, I feel more similarities to what’s going on here with what’s happening in the Middle East than I do with what’s happened in Russia. So, maybe the Ukrainian people, in a way, could be a lesson for their Russian colleagues and counterparts on how to remain strong and unified, even in the face of defiance and opposition.
Let’s hope for a positive outcome of the current events. Thank you very much.
A pleasure to be with you. Best of luck to all.
This conversation was recorded on December 12, 2013.
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