On the Verge of Another Cold War? Rising Tensions between Russia and the U.S. Push the Boundaries of International Law

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Over the last few months, hostilities between Russia and the United States have escalated dramatically. Some claim that hostilities have reached a point not seen since the end of the Cold War. Both countries have made claims that the actions taken by the other have run counter to international law, specifically bilateral agreements signed during the Cold War. This article will provide an overview of the events that have led to increased tension between Russia and the U.S. and assess the merits of the claims that international law has been violated.

The U.S. has announced plans for a significant buildup of its military presence in Eastern Europe, in order to reassure NATO allies in the region that the type of aggression exerted by Russia in Crimea will not imperil their security. Russia’s expansion of its military as seen in the arms utilized in Syria, as well as its large increases in military spending, is worrisome to Poland and the Baltic States. Estimates show that Russia could overrun Lithuania, Latvia, and Estonia in a matter of days, leaving little room for a U.S. or NATO response.

Although the buildup of NATO forces on Europe’s eastern flank appears to be based solely on concerns about collective security and entirely defensive in nature, Russia has been aggressive in its response. First, Russia claims that its response to the buildup will be “totally asymmetrical.” The country also claims that the buildup of NATO forces along the border is a violation of the Russia-NATO Founding Act of 1997. However, it is unclear that any obligations still exist under that treaty—NATO suspended cooperation with Russia two years ago, after its aggression against Ukraine.

The buildup of troops in Eastern Europe and Russia’s rhetoric about its intended response are worthy of attention and concern. However, the Russian military’s actions in the last week raise concerns about Russia’s apparent willingness to engage in direct military confrontation with the United States.

A Russian Sukhoi Su-24 attack aircraft makes a very-low altitude pass by the USS Donald Cook on April 12, 2016

A Russian Sukhoi Su-24 attack aircraft makes a very-low altitude pass by the USS Donald Cook on April 12, 2016

On April 12, the USS Donald Cook was performing joint training operations in the Baltic Sea when Russian fighter jets began to engage in maneuvers. These maneuvers involved the jets flying within 30 feet of the U.S. vessel. A representative of the U.S. said that the Russian Pilots engaged in flying techniques called “strafing runs.” These tactics are typically used when attacking ships. The Russian jets, however, were  unarmed during the encounter. Secretary of State John Kerry stated after the incident that under U.S. rules of engagement (which are kept confidential), the Captain of the ship had the discretion to shoot down the Russian jets in self-defense. International Law runs counter to this statement. Under the U.N. Charter, a state can only engage in self-defense in response to an armed attack. Although Russia’s aggressive behavior was hardly an armed attack, Secretary Kerry’s statement is in line with U.S. interpretation of the laws governing self-defense. Under general U.S. interpretation, anticipatory self-defense is permitted when there is an immediate threat of the use of force and when the response is both necessary and proportional.  The decision is left up to the on-site commander in such a situation. The United States and many other states around the world take the position that they are not required to allow an attack on their territory or their military personnel before being permitted to respond. As Russia is well aware of that policy, its behavior was particularly reckless, indicating an indifference to setting off a “hot” conflict between two of the world’s largest military powers.

Russia used its air power to threaten the U.S. military again on April 17, 2016. A Russian jet engaged in what the United States called an “unsafe” and “unprofessional” interception of a U.S. aircraft in international airspace about 70 miles from Russia’s military base in Kalingrad. The United States clarified that the interception itself was not contrary to international law. The U.S. frequently engages in similar conduct against Russian Spy planes off of the coast of Alaska. However, it was the manner in which the Russian jet engaged with the U.S. aircraft that was alarming. Reports show that the Russian jet came within 20 feet of the U.S. plane and engaged in aggressive and unsafe maneuvers well outside of the generally understood rules of engagement for interception as defined by the International Civil Aviation Organization.

The United States claims that Russia’s actions constitute a breach of the Incidents at Sea Agreement, which was signed by the USSR and the U.S. during the Cold War in order to prevent tensions from escalating. There are no specific guidelines regarding interception within the treaty. But it is certainly possible that Russia has violated Article IV’s requirement that “[c]ommanders of aircraft of the Parties shall use the greatest caution and prudence in approaching aircraft and ships of the other Party operating on and over the high seas, in particular, ships engaged in launching or landing aircraft, and in the interest of mutual safety shall not permit: simulated attacks by the simulated use of weapons against aircraft and ships, or performance of various aerobatics over ships, or dropping various objects near them in such a manner as to be hazardous to ships or to constitute a hazard to navigation.” Regardless of quibbles over the safety of the Russian maneuvers, the pilots of these missions took unnecessary risks in their flyover of the USS Donald Cook, as well as in the interception of the U.S. aircraft over the Baltic Sea. The Russian Military clearly accepted the risks of retaliation of the U.S. military in self-defense as well as an unintentional collision with a U.S. vessel.

It is important to remember that an accidental miscalculation or a reactive military commander in these situations has the potential to set off catastrophic conflict that can impact the world at large. The need to avoid a global conflict should loom large over any decisions made by either the U.S. or Russian military. Russia in particular should be cautious to respect the international agreements that were signed for the purpose of preventing war between nuclear powers and to avoid risky military conduct which has the potential to be a catalyst to conflict.

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