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

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