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  • 05 Apr 2019 10:34 AM | Myroslaw Smorodsky (Administrator)

    UABA holds 41st annual meeting in Washington

    WASHINGTON – The Ukrainian American Bar Association held its 41st annual meeting in the confines of the U.S. Capitol Building. The conference, titled “U.S.-Ukraine: New Policies, Strategies and Lessons from the Past,” took place during the weekend of November 9-11 and attracted a wide array of attorneys, jurists and academics from the United States as well as from Ukraine. The conference ended with a banquet honoring one of the co-chairs of the Congressional Ukrainian Caucus, Congressman Andy Harris of Maryland, who received a Special UABA Award for his efforts and continuing support of Ukraine.  

    Read More in PDF;  View on the Ukrainian Weekly Web page

  • 20 May 2018 5:49 PM | Myroslaw Smorodsky (Administrator)

    The Rule of Law and Judicial Independence

    By   Judge Bohdan A. Futey

    The Rule of Law is the lynchpin to promote democracy throughout the world, and democracy, in turn, will provide a more prosperous economic life.

    There are many characteristics of the Rule of Law.  I will focus on those I consider to be essential. First, the supremacy of law, which means that all persons are subject to the law.  No person is above the law regardless of his or her status. Second, a concept of justice which emphasizes interpersonal adjudication, law based on standards and the importance of procedures. The source of the law must be the people themselves.

    President Abraham Lincoln, speaking before Congress in 1861 about the establishment of the U.S. Court of Claims, said: “It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same, between private individuals.” Third, it is important to preserve individual liberties. Fourth, a political system based on separation of power with appropriate checks and balances. Fifth , the implementation of the doctrine of judicial precedent. Sixth, an independent judiciary is crucial.

    As there cannot be a market economy without private ownership of property, there cannot be respect for the Rule of Law unless there is an independent judiciary.  We look forward to the courts to promote democracy and the Rule of Law.

    Although the requirement for judicial independence may vary among countries, the reality of that independence is essential for the judiciary’s performance of its key function of assuring that the Rule of Law prevails.  The Rule of Law, in English law, meant that governmental actions should never be above the law. The Rule of Law guarantees meaningful access to courts or other adjudicative bodies where a neutral and independent decisionmaker will determine whether actions were inconsistent with law.

    The aim of any judicial system, either civil law or common law, is to provide stability through the consistent application of the law and adherence to the Constitution.  Contradictory application of judicial rulings has far reaching negative affects.  It instills uncertainty and confusion not only in legal circles, but in the people of a given country as well as in the international community.

    Regardless of the common law or civil law legal systems, the following reforms are recommended: (1) strengthen judicial independence in general, (2) enforcement of judicial decisions, (3) adopt a code of conduct for judges.

    Judges should not only avoid conduct which on its face is improper, but also conduct which creates an appearance of impropriety.  Appearance of impropriety is sometimes as damaging as the act itself. Courts need to do away with visiting hours/ex-parte communications where parties can meet individually with judges behind closed doors without any record.

    Judges must eliminate conflict of interest and file financial disclosure reports.

    Judicial independence does not mean the Judges do as they choose, but do as they must in accordance with the Constitution and laws of the country.  Judicial independence in the final analysis will depend largely on the conscience and courage of the Judges themselves.  Judges will not be respected until they respect themselves.

    There are two aspects in which judges must be independent.  First, they must be honest-brokers, in that they are independent from and neutral among the parties that appear before them.  Judges must decide matters before them impartially, on the basis of the facts and the law, without any restrictions, improper influences, inducements, or threats, direct or indirect, from any party or institution or for any reason.  A judge’s moral commitment to this form of independence eliminates favoritism and corruption from the nation’s judicial system.  If judges fail in this duty, the public will lose confidence in the basic equity of its society, generating cynicism, anger and instability.

    Justice Felix Frankfurter said it best “The Court’s authority, possessed of neither the purse nor the sword, ultimately rests on sustained public confidence in its moral sanction.”

    Second, the judiciary, and hence each individual judge, must act as co-equal and independent of the other branches of government.  Judges are independent in this sense if they are not beholden to any other branch of government or political party.  It is vital that courts have jurisdiction and the power to restrain the legislature or executive by declaring laws and official acts unconstitutional when they abridge the rights of citizens.  Further, for judicial independence to have practical effect, the courts’ interpretation must be accepted and enforced by the legislative and executive branches of government.

    In the United States, becoming a judge represents the professional achievement of a legal career.  Being a judge means holding one of the most respected positions in American society.  Because of the respect accorded to judges, the courts have great credibility and the confidence of the people. A September 2017 Gallup poll shows that 68% of Americans had trust in the judicial branch of the federal government.

    All Article III federal judges hold office during good behavior and can be removed only through impeachment by Congress.  Judicial immunity extends only to judicial acts during the process of rendering decisions.  Judges have no immunity for violation of criminal statutes or their contractual obligations.

    There is a First Amendment right for the public and the press to attend  trials.  By informing the public about court proceedings, the press helps to keep a check on the independence of the judiciary.

    Ukraine’s transition from a command system to one based on the Rule of Law began with the Act of Declaration of Independence of August 24, 1991, and was affirmed by 90% of Ukraine’s population in a nation-wide vote held on December 1, 1991.  Then, Ukraine’s Parliament, in an overnight session from June 27-28, 1996, debated and eventually passed the Constitution by 315 votes.  With the adoption of its Constitution on June 28, 1996, Ukraine took yet another step toward joining the community of democratic nations that place the Rule of Law and a free market economic system among its highest values.

    The Constitution addressed the concerns of Ukrainians about their national interests, the establishment of their statehood, as well as the suppression of rights by the Soviet Union and, at the same time, what kind of social changes a democratic future would bring.  The Constitution was commended by a number of international organizations including the Venice Commission, particularly for the guarantee of many individual rights.

    Even after twenty-one years, Ukraine’s Constitution remains a work in progress.  With every election of a new President, there is an attempt to amend or adopt a new Constitution.

    The present government of Ukraine has also moved in that direction.  President Poroshenko by decree has established a new Constitutional Commission.  The aim is to make changes more democratic and closer to international standards as the government of Ukraine moves forward with reforms for a European integration.  The Venice Commission and EU experts are playing an important role.  I am honored to be appointed to serve in the Commission as a consultant.

    The long expected judicial reform came into being on June 2, 2016, by the vote of the Parliament when 335 deputies voted for the Constitutional changes.  The aim being to secure Judicial independence in accordance with the principles, as previously above stated, and elimination of corruption within the Judiciary.

    Judicial reform in Ukraine has progressed slowly, but now it is moving in the right direction.  One thousand four hundred and thirty-six (1,436) candidates submitted applications for consideration as judges to the Supreme Court.  Only one hundred thirteen (113) have been selected and approved.  The Higher Council of Justice has forwarded the names to the President for appointment.  For the first time, the Public Integrity Council, Civil Society representatives, participated in the selection process, presenting evidence against many applicants, especially former judges.

    On November 11, 2017 President Poroshenko signed the decree of appointment for all 113 judges to the Supreme Court and the oath of office was administered on the same day. On November 20, 2017 all, of these judges, participated in an Ethics Conference. The first Plenary Session of the new Supreme Court was held on November 30, 2017 and Judge Valentyna Danyshevsky was elected Chief Judge of the Court.

    So, the Supreme Court of  Ukraine, is now formed and it has started its work on December 15, 2017.

     Also, progress has been made, in reforming the Constitutional Court. Now individuals will have the right to challenge the constitutionality of laws.

    Education is equally critical in establishing a credible and respected independent judiciary. Ukrainians require access to information about the ongoing process of reform, especially concerning the radical changes occurring in the Ukrainian judicial process. Judges, too, must be educated about the new system, and their roles within it. In this regard , lawyers’ groups , and bar associations and law schools will be helpful in encouraging that democratic principles based on the rule of law become firmly entrenched in the judicial culture of Ukraine. A good start has been made, but acceleration is needed.

             The transition from a command system to a system based on the Rule of Law is not easy, but the recent events throughout Ukraine and the peoples’ revolutionary expression at the Maidan during the Revolution of Dignity, hopefully, will be an irrevocable incentive and mandate for the implementation of these reforms as the country is watchful over its independence and territorial integrity and moves forward to integrate with the European Union.

    *Excerpts from a presentation delivered at an International Conference organized by the Ukrainian Free University held at Ludwig Maximillian University in Munich ,Germany on February 20-21, 2018.

    *Bohdan A. Futey is a Senior Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Ronald Reagan in May 1987.  Judge Futey has been active in various Rule of Law and Democratization programs in Ukraine since 1991.  He served as a member of the working group on Ukraine’s Constitution adopted on June 28, 1996.  Judge Futey is a professor at the Ukrainian Free University in Munich, Germany and a visiting professor at the National University of Kyiv-Mohyla Academy in Kyiv, Ukraine.  In March 2015, he was appointed by the President of Ukraine to serve as a consultant on the Constitution Commission.

    Baker v. Carr, 82 S.Ct. 691 (1962).

    Bohdan A. Futey, “Comments on the Constitution of Ukraine,” East European Constitutional Review 2-3 (Spring/Summer 1996):29-34.

  • 09 May 2018 10:30 PM | Myroslaw Smorodsky (Administrator)


    Commentary by Myroslaw Smorodsky, Esq.

    In the past few weeks, mass media of all political stripe have been buzzing about Ukraine suddenly terminating its cooperation with the Mueller investigation of Paul Manafort on the one hand, and on the other, the Trump administration “coincidentally” permitting the sale and delivery of sophisticated Javelin antitank missiles to Ukraine. The unspoken implication is that there is something nefarious in this “coincidental” intersection of events.  These crossing incidents are best understood from a historical point of view: America’s attitude and behavior towards Ukraine’s independence juxtaposed with the unquestionable axiom that the primary function of government is to protect its populace and territory from unwarranted attack by its external neighbors. 

    In the waning days of the Soviet Union [August 1, 1991], Pres. George H. W. Bush gave the infamous “Chicken Kiev Speech” to the Ukrainian Soviet Parliament warning that independence would be “suicidal” and that Ukraine should stay within a unified Kremlin led state. Evidently, he nor his advisers where at all cognizant of [or chose to ignore] the deep-seated centuries old aspiration of the Ukrainian people to have an independent state. On August 24, 1991. the Ukrainian Parliament ignored Pres. Bush’s warning, and by a nearly unanimous vote declared Ukraine’s independence from the USSR. This declaration was endorsed by a national referendum on December 1, 1991 with a 92% majority vote.  On December 26, 1991, the USSR ceased to exist. Most historians acknowledge that Ukraine’s independence declaration was “the straw that broke the camel’s back” and caused the demise of the USSR much to the surprise and chagrin of Pres. H. W. Bush’s Administration.

    On December 5, 1994, [on President Clinton’s watch] Ukraine agreed - at the strong insistence of the US - to remove and to have destroyed all nuclear weapons on its territory.  All that Ukraine asked in return was to be given security assurances [of its political, territorial, and economic independence] by the United States, Russia and the United Kingdom upon its accession to the Non-Proliferation Treaty as a non-nuclear weapon state.  These security assurances were given and are commonly known as the Budapest Memorandum.  In reliance on these assurances, Ukraine surrendered approximately 1900 nuclear warheads, the third largest nuclear arsenal in the world.   The Budapest Memorandum was a significant and dramatic step in furtherance of the United States' then long term strategic goal to limit the proliferation of nuclear weapons.

    In the first decade of the 21st century, Pres. George W. Bush gazed into Putin’s eyes and found a “trustworthy” person; Putin even confided in Pres. Bush that he believed “Ukraine is not even a state”. Thus, true intentions having been confessed, the Kremlin proceeded to endeavor to economically destroy Ukrainian independence and imposed gouging prices for gas, poisoned a Ukrainian presidential candidate in a rigged Ukrainian presidential election which resulted in the Orange Revolution;  thereafter, it shut off gas supplies to Ukraine and to Europe in the middle of winter, invaded Chechnya, and militarily occupied portions of Georgia -- all without any significant or effective economic or political consequences being imposed on Russia by the United States or its allies for its actions. 

    During the Obama administration, Russia -- now emboldened by America’s weak response to its past belligerence -- not only accelerated its economic and political subversion of Ukrainian independence, but now used military aggression to try to bend Ukraine to its will.  In 2010, Russia installed a pro-Russian puppet, Viktor Yanukovych, as President of Ukraine by manipulating and infiltrating mass media.  In 2013, overwhelmingly popular and governmental support buttressed Ukraine’s desire to sign preliminary agreements to join the European Union. [Dec. 2013] At the very last moment, the Kremlin directed its puppet president of Ukraine, Victor Yanukovych, to scuttle all such efforts.  In February 2014, the Ukrainian people peacefully protested this subservient decision only to be met by brutal violence that killed over 100 people. [the Euro Maidan Revolution] Ultimately, on February 22, 2014, Yanukovych was overthrown and fled the country for asylum in Russia.  Having failed to undermine Ukraine from within, in early March of 2014, Russia invaded Ukraine.  First, Russian troops assaulted and annexed Crimea; then the Ukrainian eastern provinces of Luhansk and Donetsk were invaded by Russian mercenary and regular army forces. In the process of the war, the Russians shot down a civilian airliner. [MH17]   The US government’s initial response to Russia’s blatant acts in violation of international rule of law was muted verbal condemnation only to be followed by anemic economic sanctions against Russian and later by providing military advisors and non-combat equipment to Ukraine.  Although the U.S. Congress authorized the transfer of defensive lethal weapons to Ukraine, [e.g. Javelin missiles] and notwithstanding Ukrainian Pres. Poroshenko’s impassioned plea before a Joint Session of Congress for such armaments [Sept. 18, 2014], the Obama administration refused to deliver any lethal weaponry to assist Ukraine to defend itself.

    Donald Trump’s presidential campaign and the first year of his presidency displayed a new isolationist foreign policy accentuated by numerous events displaying inexplicable tolerance of Russian behavior - only a few of many examples follow: Russian intervention in US elections without any response from the Trump administration; surreptitious removal from the GOP platform by the candidate’s staff of a foreign policy plank supporting transfer of lethal weapons to Ukraine; Pres. Trump’s unabashed adulation of Russian Pres. Putin and a staunch refusal to criticize him; and Pres. Trump’s adamant refusal to increase sanctions against Russia as mandated by near unanimously adopted congressional legislation.

    Nor has it gone unnoticed by Ukrainians that during the past half-century, the United States has readily given lethal weapons to countries and to political groups which had or have substantially less trustworthiness and credibility than Ukraine.  It is now crystal clear that the guarantees of economic, political, and territorial security promised by the United States and by the other signatories of the 1994 Budapest Memorandum were not worth the paper they were written on.  America’s new isolationist policy and willingness to unilaterally walk away on short notice from international agreements does not give much hope nor any reasonable reliance on future US promises. It is also painfully obvious that the sanctions imposed to date against Russia have not blunted Russian aggression against Ukraine. With this stark historical reality in mind, Ukraine now must deal with a seemingly unending war initiated by Russia without cause, having parts of its territory annexed by its bellicose neighbor, the economy of two of its provinces destroyed and their territory occupied by Soviet mercenaries and regular army troops; a frozen war zone on its eastern front, 10,000 citizens killed to date, and 1.5 million displaced citizens.  Russian tanks are poised on the eastern border, military fire-fights are a daily occurrence, and Ukraine must be on the ever ready to defend itself and its citizens with only limited resources.

    If political fate presented a rare and exceptional opportunity for Ukraine to obtain lethal military weapons such as Javelin missiles from the United States to greatly help defend itself and its populace, [which weapons it had begged for since the Russian invasion in 2014], it would be governmental malfeasance – if not treason - not to take advantage of such an unanticipated and invaluable chance; even if it required a “coincidental” withdrawal of cooperation with the Muller investigation.  After all, it is axiomatic that the primary purpose of any government is to protect its populace and territory from unwarranted attack by its external neighbors.  Every government in Ukraine’s position would act in like fashion.

    May 9, 2018

    Myroslaw Smorodsky, Esq.
    Communications Director of the Ukrainian American Bar Association (UABA)
    Former President, Chairman of the Board, and Founding Member of the UABA
    Former Public member – US Delegation to the Conference on Security and Cooperation in Europe (CSCE - Madrid 1980)

  • 02 May 2018 12:20 PM | Myroslaw Smorodsky (Administrator)


    Критерії демократії: верховенство права і судова незалежність

    Упродовж двох днів‚ 20 і 21 лютого‚ у Мюнхені‚ Німеччина‚ відбувалася міжнародна академічна конференція „Реалії верховенства права“. Від Сполучених Штатів Америки у її праці взяв активну участь Старший суддя Федерального суду претензій у Вашінґтоні‚ американській столиці‚ доктор права Богдан ФУТЕЙ. Призначений на цю посаду Президентом Рональдом Рейґаном у 1987 році‚ д-р Б. Футей  відомий і як професор в Українському Вільному Університеті в Мюнхені та професор-гість в Національному університеті „Київсько-Могилянська академія“‚ а також як співавтор різних ініціятив та програм‚ спрямованих на утвердження верховенства права і демократії в незалежній Українській державі. Зокрема видатний правник був членом Робочої групи з питань Конституції України‚ ухваленої 28 червня 1996 року. У березні 2015 року Президент України Петро Порошенко призначив д-ра Б. Футея консультантом Конституційноі комісії.

    Нижче вміщуємо головні тези доповіді д-ра Б. Футея на конференції в Мюнхені.


    Верховенство права – наріжний камінь в заснуванні і розвиткові демократії, а демократія, у свою чергу, є надійним засобом досягнення економічного добробуту.

    З багатьох характеристик та ознак верховенства права передусім слід підкреслити підставову: всі особи в суспільстві  підпадають під дію закону. Жодна людина не є понад законом, незалежно від її статусу. Водночас джерелом права повинні бути самі люди‚ громадяни країни. По-друге, поняття справедливости передбачає міжособистісне судочинство‚ засноване на важливих стандартах та процедурах. Президент Авраам Лінкольн, виступаючи перед Конгресом у 1861 році з приводу створення Федерального суду претензій, заявив: „Не менш важливим є обов’язок уряду забезпечити правосуддя проти держави на користь громадян  так само‚ як здійснювати правосуддя між приватними особами“.

    Третім важливим чинником є збереження індивідуальних свобод. Четвертим – застосування судового прецеденту. П’ятим – політична система повинна засновуватись на розподілі повноважень з дієвою системою „перевірок” та „противаг“.

    Нарешті‚ надважливимм критерієм є незалежний суд. Як не може бути ринкової економіки без приватної власности, так само не може бути поваги до верховенства права без незалежного суду.

    Вимоги щодо незалежности суддів можуть дещо відрізнятись між країнами, реальність та практичність такої незалежности полягає в тому, щоб суд виконував свою основну функцію – забезпечення верховенства права. Верховенство права в англійському праві завжді означало, що дії уряду ніколи не можуть бути понад законом.  Верховенство права ґарантує кожній особі безпосередній доступ до суду та його органів, невтральний та незалежний суддяя визначає‚ чи певне діяння є правомірним.

    Метою будь-якої судової системи, є забезпечення стабільности в суспільстві шляхом послідовного застосування права та дотримання Конституції. Неконституційне застосування судових рішень має далекосяжні неґативні наслідки не лише для юристів‚ але для усього суспільства країни.

    Незалежно від того‚ чи йдеться про систему звичаєвого чи цивільного права, продуктивними є наступні кроки:

    утвердження судової незалежности в цілому;

    неухильне виконання рішень, ухвалюваних надійною, шанованою та незалежною судовою системою;

    прийняття Кодексу поведінки суддів.

    Судді повинні не тільки уникати  неправомірної поведінки, але й такої‚ що справляє враження непристойности та неприйнятности. Якщо вчинок викликає сумнів з боку eтики та моралі, то потрібно утриматись від цього діяння. Крім того, суди повинні абсолютно відмовитися від відвідувальних годин, де одна сторона може  зустрічатися індивідуально з суддею за зачиненими дверима без офійного судової процедури та іншоі сторони. Слід також уникати  конфліктів інтересів та подавати звіти про фінансові доходи.

    Судова незалежність не означає, що судді роблять, як хочуть – їхнэ діяльність має повною мірою узгоджуватися з Конституцією та законами країни.

    У цивільних, а також країнах звичаєвого права, незалежність суддів, в кінцевому рахунку, багато в чому залежатиме від сумління та свідомости самих суддів. Ніхто не поважатиме суддів, доки вони не почнуть поважати самі себе.

     Є два аспекти, в яких судді повинні бути незалежними. По-перше, вони повинні бути чесними брокерами, незалежними та невтральними, щодо сторін. Судді повинні вирішувати справи неупереджено, на підставі фактів та права, без будь-якого тиску, неправомірного впливу, погроз, прямих чи опосередкованих, від жодної сторони чи установи. Моральне зобов'язання судді щодо такої незалежности усуває фаворитизм та корумпованість судової системи країни. Якщо судді не дотримуватимуться цього морального зобов’язання, громадськість втратить довіру в справедливість свого суспільства, породжуючи цинізм, гнів та нестабільність.

    Суддя Верховного суду США Фелікс Франкфуртер влучно висловився: „Судова влада не має ні гаманця, ні меча, і тільки опирається на довіру громадськости до своіх моральних санкцій“. 

    По-друге, судова влада, а отже, і кожен суддя зокрема повинна діяти як рівноправна і незалежна від інших гілок влади. Судді незалежні в цьому сенсі, якщо вони не є зв’язані з іншою гілкою влади чи політичною партією. Дуже важливо, щоб суди мали юрисдикцію і можливість обмежувати законодавчу владу чи виконавчу владу, трактуючи закони та офіційні акти, визнаючи їх неконституційними, коли вони зменшують права громадян. Крім того, для того, щоб незалежність суддів мала практичний ефект, такі тлумачення повинні забезпечуватись законодавчою та виконавчою гілками влади.

    У Сполучених Штатах становлення судді є професійним досягненням юридичної кар’єри.  Бути суддею означає бути на одній з найбільш шанованих посад в американському суспільстві. Через повагу до суддів суди мають великий авторитет та довіру людей.  Соціологічне опитування‚ проведене компанією „Gallup“ в 2017 році, показало, що 68 відс. американців довіряють федеральним судам.

     Всі федеральні судді, визначені статтею III, перебувають на своіх посадах за умови гідноі поведінки і можуть бути усуненими тільки через процедуру імпічменту Конгресом.  Судовий імунітет поширюється тільки  щодо судових рішень та процесу їх винесення. Судді не мають імунітету, в кримінальних справах та договірних зобов'язаннях.

    Перша Поправка до Конституції ґарантує для громадськости та преси доступ до судових процесів. Інформуючи громадськість про судові справи, преса допомагає контролювати незалежність судової влади.

    Перехід України від адмістративно-командної системи до принципу верховенства права почався з Акту проголошення Незалежности Украіни 24 серпня 1991 року і  наступного підтвердження 90 відсотками населення України під час Всеукраїнського референдуму 1 грудня 1991 року. Згодом, 28 червня 1996 року, – дебатами та ухваленням 315 голосами у Верховній Раді Конституції України. Цим Україна зробила черговий крок  до спільноти демократичних держав, які шанують верховенство права та систему вільної ринкової економіки як найвищі цінності.

    Конституція визначила те, що найбільше цікавило украінців: національні інтереси, заснування державности, ґарантування прав та свобод, які утискались в Радянському Союзі, а також перспективу соціяльних змін‚ які принесе  з собою демократичне майбутнє України.  Конституція дістала однозначне схвалення від міжнародних організаціями, включаючи Венеціянську комісію, котра підкреслила важливость ґарантування численних особистих прав і свобод для громадян України.

    Проте  навіть через 21 рік Конституція України залишається в процесі вдосконалення. Кожного разу з обранням нового Президента відбувається спроба внести зміни або прийняти новий Основний Закон. Нинішній уряд України також робить спроби в цьому напрямку. Президент Петро Порошенко своїм указом створив нову Конституційну комісію. Її мета – внести зміни у більшій мірі демократичні‚ наблизити Конституцію до міжнародних стандартів, виходяячи з того, що  України реформується в напрямі европейської інтеґрації.

    Довгоочікувана судова реформа в Україні вступила в силу 2 червня 2016 року‚ коли  за конституційні зміни віддали свої голоси 335 депутатів Верховної Ради. Головною метою цих змін є забезпечення незалежности суддів  та подолання корупції в рамках судової влади.

    Судова реформа в Україні проґресує повільно, хоча зараз вона рухається у правильному напрямку. 1436 кандидатів подали заяви на призначення на посади суддів Верховного суду. Лише  113 були обрані та затверджені. Вища Рада юстиції подала імена Президентові для призначення. Вперше Рада громадської доброчесности, яка складається з представників громадянського суспільства, взяла участь у процесі відбору, представляючи свідчення проти багатьох заявників, особливо колишніх суддів.

    11 листопада 2017 року Президент П. Порошенко підписав указ про призначення всіх 113 суддів до Верховного суду, і присяга на посаду відбулася того ж дня. 20 листопада 2017 року всі новобрані судді взяли участь у Конференції‚ присвяченій питанням судової етики. Перше пленарне засідання нового Верховного суду було проведено 30 листопада 2017 року, і суддя Валентина Данишевська була обрана Головою цього суду.

    Отже, Верховний суд України зформований і розпочав свою роботу 15 грудня 2017 року.

    Крім того, було досягнуто проґресу у реформуванні Конституційного суду. Тепер громадяни матимуть право робити подання щодо конституційности законів.

    Освіта є однаково важливою у створенні незалежних судових органів‚ які були б авторитетними в очах суспільства і користувалися його повагою, є ґрунтовна професійна освіта суддів‚ а також загальний доступу українців до інформації, що стосується процесу реформ, особливо змін у судовій владі. У зв’язку з цим, першорядним завданням правничих організацій, асоціацій адвокатів та юридичних факультетів є активне пропаґування демократичних принципів, основаних на верховенстві та їхнє засвоєння в судовій культурі України.

    Добрий початок  зроблено, але потрібне прискорення.

    Перехід від командно-адміністративної системи до порядку, що базується на верховенстві права, нелегкий, але недавні події в Україні та всенародний виступ українців на Майдані під час Революції Гідности, сподіваюся, запевнять остаточний успіх у здійсненні важливих реформ. Не маю сумніву‚ що Україна дорожить своєю незалежністю і пильно дбає про територіальну цілісність, рухаючись в руслі інтеґрування з Европейським союзом.

  • 27 Mar 2018 4:29 PM | Myroslaw Smorodsky (Administrator)



    Recap: Where, exactly, is the surprise about Russia?

    26 March 2018 – New York, US

    by Victor Rud – Board member of the Ukrainian American Bar Association and Chairman of its Committee on Foreign Affairs 

    Why are we so unceasingly apoplectic? Putin follows in the footsteps of the “efficient manager”, and poisons Sergei Skrypal and his daughter, having probably also earlier dispatched his wife and son. .  .   and others, on both sides of the pond.  Nothing novel here. Stalin wasn’t coy: “We shall annihilate every one of these enemies . . . We shall annihilate him and his relatives, his family.  Anyone who in deed or in thought, yes, in thought, attacks the unity of the socialist state will be mercilessly crushed by us.  We shall exterminate all enemies to the very last man, and also their families and relatives!” It’s a vertiginous multiplier.  Kill all the family members and friends and acquaintances. And along the way, don’t forget a dozen or so others. Just in case.

    And then there’s this.

    “It is particularly important to introduce geopolitical disorder into America’s internal activity, and to promote all kinds of separatist and ethnic, social and racial conflicts, actively supporting all opposition movements – extremist, racist, and sectarian groups, thereby disrupting internal political processes in the U.S. It would also make sense simultaneously to support isolationist tendencies in American politics….”

    Russia should also work toward isolating Britain from Europe, introduce discord both within the EU and between the EU and US, and destabilize Turkey. Ukraine is to be extinguished, and Iran is to be a key player in a Russian-Islamic alliance against America. So wrote Russia’s ideologue, Aleksandr Dugin, in his Foundations of Geopolitics, co-authored with General Nikolai Klokotov of the General Staff Academy. That was 1997.

    And we’re only now shedding our torpor?

    It’s remarkable that a country held together with duct tape has so deftly body slammed the most powerful democracy onto the Richter scale. More than rhetorical fratricide chills our consciousness, as we ricochet between confusion and angst. Mental vivisection works.

    It’s more remarkable, still, that the decibel level about Russian hacking paradoxically has been soporific.  Even with E Pluribus Unum on the ropes, it still has not occurred to us to ask why we never saw it coming. The New York Times  mocked Mitt Romney’s assertions in the 2012 presidential debate that Russia was America’s main geo-political foe as being “either a shocking lack of knowledge about international affairs or just craven politics. Either way, they are reckless and unworthy of a major presidential contender.”  Where is now our self-examination?

    Putin’s swagger is not fed by some Promethean prepotency but by our psychological profile that invites dezinformatsia, kompromat, agitatsia, provokatsia and maskirovka. Shortly put, Moscow’s Weapon of Mass Destruction is our bridal white innocence. Endearing in a toddler, it’s deadly in the real world.

    Since the dissolution of the USSR, Russia hasn’t been on our radar screen, other than as an errant blip when it invaded Ukraine in 2014, the very cause of that dissolution. That alone should have shaken us to our core. Russia used Ukraine as the fulcrum to roll the globe, shattering the post-war order. The Obama Administration walked away from assurances of Ukraine’s sovereignty, the very inducement for Ukraine having surrendered the world’s third largest nuclear arsenal. A year before invading Ukraine, Putin wrote in a New York Times Op-ed: “[I]f you cannot count on international law, then you must find other ways to ensure your security. Thus, a growing number of countries seek to acquire weapons of mass destruction. This is logical: if you have the bomb, no one will touch you.”)

    Our abdication leveraged Russia’s invasion tenfold, rocketing Damascus, Tehran, and Beijing up the learning curve with us, flailing, in tow. Now, look-what-I can-do North Korea has taken the cue. With the exception of the bloody news from Syria, were it not for the Russian hacking, our somnolence would have been complete.

    If the Cold War teetered on nuclear winter, what did we do after the dissolution of the USSR to ensure there was no slingshot “Back to the USSR”? Our damning failure was not instituting a “Marshall Plan” for the dozen newly free nations of the former USSR to ensure they were not again occupied or suborned by Moscow. Solidifying their independence would have been the cheapest, safest and most certain guarantor against a resurgent predatory Russia directed against our shores. To be sure, there were spasms of government programs but nothing approaching our determination after WWII to prevent a remilitarized, aggressive Germany. Moscow never came to grips with its past, nor did anyone require it to.  There was no purgation, no Nuremberg Trials. And on our own side?  Was there a word of contrition, apology, or embarrassment by Moscow’s acolytes in the West? Did anyone lose tenure? What conclusions did Putin draw?

    Our attitude was “let by-gone’s be by-gone’s”, “no need for recriminations.” We took our marbles and rushed home, simply hoping that the millions of military personnel, the operatives and agents and informants and sycophants and other nomenklatura were going to prostrate themselves, morph into good Rotarians because . . . well, simply because.  It would have been a decidedly un-Darwinian denouement for No. 1 Dzerzhinsky Square. For us, though, it was the easy way out.  In the meantime, Stalin’s next-of-kin (by polonium, carfentanyl, gelsemium, sarin, thallium, dioxin or (now) novichok diktat–you don’t get a choice) was resetting his own marbles and printing the rules of the game. New one here–only one player.

    As we sprinted toward a Belle Époque of our imagination in 2003, Professor Michael McFaul, our future ambassador to Moscow under President Obama, concluded that by the late 1990’s Russia ceased being a threat to the US. But that was precisely when Dugin calibrated Russia’s attack coordinates against America–and President Clinton championed Russia’s inclusion in the G7.  In 1999, Putin conducted a false flag operation, blasting apartment buildings to catalyze public opinion against Chechnya. Putin then promptly celebrated the genocidaire’s birthday. We slept.  A year later, Putin also celebrated Felix Dzerzhinsky’s birthday, the sadistic founder of the CHEKA, precursor of the KGB.  That was, yes, on 9/11.  Putin’s call to President Bush that day was proof that the Cold War was “really over.”

    As Putin deified the original terrorist state, our diplomatic politesse knew no bounds. We “looked the man in the eye . . . and [got] a sense of his soul.”  We were unfazed after Putin adopted the score to the Soviet anthem. President Bush again: “I was struck by how easy it is to talk to President Putin, how easy it is to speak from my heart.” (“We talked like men and brothers,” gushed FDR about Stalin.) Putin continued to expose his muscle memory, coyly introducing Soviet symbolism at the 2002 Salt Lake City Winter Olympics, and then full bore at the Sochi Olympics.  We stared, blankly.

    On the eve of her Senate confirmation hearings in January 2005 for Secretary of State, I wrote to National Security Advisor Condoleezza Rice: “If ‘winning’ meant dissolution of the Soviet Union cold logic dictates that all effort be applied to prevent Russia from now steamrolling the nascent democracies of the former USSR. More fantastic scenarios can be imagined than a reversion to an even more dangerous Russia.” The letter, dated December 15, 2004, was written four months before Putin’s lament about the dissolution of the Soviet Union being the greatest geopolitical catastrophe of the 20th century. The letter warned of the US being simultaneously confronted by a resurgent Russia and Islamic terrorism. Further, Iran and North Korea would reach the obvious conclusions in the face of Ukraine’s surrender of its nuclear arsenal.

    It took nine years, only after Russia invaded Ukraine in 2014, for Secretary Rice to write in the Washington Post,  “Will America Heed the Wake-Up Call of Ukraine?”. She described her encounter with Putin at his dacha (coincidently at the time of my letter) where he introduced her to Viktor Yanukovych (read Paul Manafort), Putin’s soon to be marionette in Ukraine. “Putin wanted me to get the point. Ukraine is ours—and don’t forget it.”  The question begs an answer. Why the paucity of attention to Russia during those Senate confirmation hearings nine years earlier, in January 2005, and afterwards?

    Our blind eye to reality was breathtaking. Only months after Putin’s invasion of Georgia, President Obama initiated his “reset”.  The bonhomie of the kick-off in March 2009 shrouded almost eight years of outsourcing our security to Russia. The incompetence surrounding Edward Snowden’s defection may be chalked up to wonton recklessness.  But it was willful malfeasance to remove missile defense systems from Eastern Europe, to turn a blind eye to Russia’s crass violations of the 1987 Intermediate-Range Nuclear Forces Treaty, and to roll out the red carpet for the Kremlin in Syria, the better to camouflage Obama’s “red line”.

    Not since the 1930’s and 40’s has our pusillanimity been so provocative. Russia raced ahead modernizing its strategic nuclear arsenal, including massive submarine development. And what was Putin to deduce when, in March 2012, in an hot-mic moment Obama told Dmitri Medvedev that he’d have more flexibility to deal with Russia after the next presidential election? You would have thought that, as a tit for tat, Putin would prudently have cut Obama some slack pending the election. No. He already understood all that he had to. He had us pegged. That very summer Russian strategic nuclear bombers breached our airspace in Alaska, and an Akula-class attack submarine spent weeks in the Gulf of Mexico undetected.

    Russia has outlawed itself and is a rogue state, puppeteering despots in the Middle East and Pyongyang. It will eventually dawn upon us that the proposed meet between President Trump and the North Korean despot (Putin provides his personal security detail) is a scam. But surely, now, we “get it”? Only if there is cold examination of how we got to where we are, and what that portends for the future.  We would then be speaking not just in terms of “defending”, “dealing with ” and “managing” Russia’s frontal assault, but would grasp the overarching need to compel Russia itself to turn inward. We must cause the Kremlin to issue its own indictments. Dugin in reverse. But we must first decide who and what Putin is.  He is either the one who writes in that same New York Times Op-ed: “We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.” Or he is the one who follows Stalin’s musing: “My greatest pleasure is to choose one’s victim, prepare one’s plans minutely, slake an implacable vengeance, and then go to bed.  There’s nothing sweeter in the world.”

    DefenceReport’s weekly recap is a multi-format blog that features opinions and insights from DefRep editorial staff and guest writers. The opinions expressed here are the author’s own and are separate from DefRep reports and analysis, which are based on independent and objective reporting.

     Victor Rud
    Victor Rud is a board member of the Ukrainian American Bar Association and chairman of its Committee on Foreign Affairs.

    Victor Rud has more than thirty-five years experience as an international attorney. Before Ukrainian independence, he was co-counsel, in the West, for members of the Ukrainian Helsinki Accords Watch Group, and for other dissidents in Ukraine. He was also counsel to the US Public Member to the Helsinki Accords Review Conference in Madrid. He is an honors graduate of Harvard College and Duke Law School. 

  • 23 Feb 2018 2:23 PM | Myroslaw Smorodsky (Administrator)

    Victor Rud: Expresso TV Interview in Ukraine on the Budapest Memorandum and the murder of Litvinenko

    В ефірі телеканалу Еспресо Віктор Рудь, правник, голова комітету закордонних справ Українсько-американської асоціації адвокатів (США), про невикористаний потенціал Будапештського меморандуму, вбивство Литвиненка й застрашування американських правників.

    View full interview in Ukrainian 

  • 16 Feb 2018 3:03 PM | Myroslaw Smorodsky (Administrator)

    Special counsel issues indictment against 13 Russian nationals over 2016 election interference

    U.S. v. Internet Research Agency, et al (1:18-cr-32, District of Columbia)

    A federal grand jury in the District of Columbia returned an indictment on Feb. 16, 2018, against 13 Russian nationals and three Russian entities accused of violating U.S. criminal laws in order to interfere with U.S. elections and political processes. The indictment charges all of the defendants with conspiracy to defraud the United States, three defendants with conspiracy to commit wire fraud and bank fraud, and five defendants with aggravated identity theft.

    Read Full Text of Indictment

  • 13 Jan 2018 5:11 PM | Myroslaw Smorodsky (Administrator)

    Reception Dinner
    28 November 2017 L'viv, Ukraine
    Victor Rud
     (text reconstructed from notes at the time)

    Click Here to View Article in PDF Format

    Sincere thanks to the Co-Chairs of this upcoming Forum, Deputy Head of the Ukrainian Parliament, Oksana Syroyid and L'viv Mayor Andriy Sadovyy.  Sincere thanks, as well, to the Forum sponsors, partners, organizers and contributors, and to the hosts of this dinner, Mr. Sadovyy and the Prosvita Institute. And much appreciation for the tremendous work done by Mrs. Marta Suprun and her colleagues in pulling all this together.  She, I know, has been in touch with all of us in her remarkably efficient and always gracious manner.

                   Allow me to make two observations before I turn to my remarks. The Mission statement of the Forum's website asks that we be honest and direct.  And so, although I do not wish to appear overly harsh in my observations, nevertheless I am obliged to be frank and open.  Otherwise, why have a conference such as this at all?  Also, I want to emphasize that when I speak about the "West", or use the term "we", I do not at all include the people in this room who are not from Ukraine, and who know and understand far more than the general citizenry of the countries that they represent.  They and their institutions have labored tremendously on the very issues that we are so concerned about, and deserve much credit.

                   "Why Putin Likes the West" may seem to be an anomalous title for my remarks.  After all, what we incessantly hear is that Putin is blaming the West for everything.  We hear about Russia's "lost pride," that it is "humiliated," "embittered," "insulted," "lost," "confused."  One of the advisors to Vermont Senator Bernie Sanders in the last presidential campaign said, "Putin has been trying hard to find love, appreciation and recognition."

                   The demonstrable facts are opposite.  Fiona Hill is formerly from the Brookings Institution, a well-recognized think tank in Washington, and is now with the National Security Council in the White House. She is recognized in many circles as a Russia and Putin expert. A few years ago, she wrote a book about Putin where she said that Putin is "unable to understand the mindset of Americans and Europeans and their political dynamics."

                   For someone who doesn't understand us, however, Putin has done quite well. Let's just take one example. We have his money in our bank.  We hold the key. Yet he brazenly expands his aggression.  Russia--one country--taunts, menaces, intimidates, and threatens with nuclear war the collective of Western democracy.  And Putin doesn't in the least feel that his money is at risk. Why not? Where does he get his self-assurance from?  We gave it to him.

                   Putin is not brilliant. But he knows and understand very well the hundred-year history of relations with the West. He has identified patterns of Western behavior, thinking and emotions that are clear, predictable, and reliable.  His conclusions, based on those patterns, are also themselves predictable.  He sees repeated strategic blunders by the West, squandered opportunities, and an inability and absence of political will to think and act strategically, in an affirmative, and not a reactive, manner. But how can this possibly be the case if, as we tell ourselves, it was the West that "won the Cold War"? We'll return to that question later.

                   What is the history that Putin sees? In 1918, Ukraine declared independence, was recognized by Lenin and was promptly invaded. Ukraine turned to the West, requesting aid in the form of surplus WWI equipment and medication. Ukraine was denied. Ukraine warned that in a generation the West would be confronted directly by Russia. Ukraine was ignored. Moscow of course conquered and occupied Ukraine, and its control of Ukraine was pivotal to the formation and viability of the Soviet Union.

                   In 1933, the United States extended diplomatic recognition to the Soviet Union at the same time that Moscow was using starvation to break the back of Ukrainian resistance, thereby ensuring the regime's survival. In the eyes of the world, recognition represented America's legitimization, acceptance and approval of Stalin's murderous regime. Furthermore, this was legitimization, acceptance and approval by America, the devil of the capitalist world, the intended victim of the very regime that had declared itself the leader in the world campaign to destroy capitalist America.  How should Putin assess our strategic sense?

                   In World War II, the West liberated Europe, but only part of it. We facilitated one tyrant, Hitler's partner, replacing the other.  The West in effect measured the dimensions of the Iron Curtain.  America's Lend/Lease program delivered to the Kremlin far more equipment and material, both in type and quantity, than necessary for military needs. Unfortunately, Moscow used the "Made in America" label to crush the underground resistance movements in Ukraine and in the Baltics, and also the uprisings in the GULag in the early 1950's.

                   From the late 1940's and for 40 years, the West--essentially the United States--pursued a policy of containment, seeking to contain Soviet expansionism. Containment, however, did not contain.  Compare the relative position of the United States and the Soviet Union after WWII, and then 40 years later.  For all the treasure spent and precious lives lost on "containment", there was a dramatic shift, with the Soviet Union massively increasing its global influence and military capacity as America retreated.

                   The problem with containment was that it was exclusively reactive, with no sense of the West undertaking any affirmative measures to bring about the dissolution of the USSR.  We surrendered situational control to the Kremlin. We concluded that the only way to deal with a pyromaniac was to build a very expensive, very large and very mobile fire department that would run around the world, putting out fires that were set by the Kremlin, at its choice of time, place and intensity.  Containment was based on hope.  But if hope is not a policy or strategy for the stock market, how can it be the basis for national security?  Not surprisingly, the prominent American journalist at the time, Walter Lippmann, described containment not as a strategy, but as a "strategic monstrosity."

                   But containment's most fundamental flaw was that it didn't recognize, in the least, the multi-national structure of the Soviet Union, that it was a colonial empire.  Containment perpetuated the "Russia"/"Soviet Union" equivalence that distorted Western thinking from the very first days of the Soviet Union. This was a massive and continuing blunder, one that helped Moscow's repression of the submerged nations of the Soviet Union.  Today, a full generation after the fall of the USSR precisely because it was not simply "Russia," US government officials at the very highest levels often repeat that same "Russia"/"Soviet Union" equivalence.

               The Reagan Administration broke the mold, and went beyond the purely reactive restrictions of containment.  He undertook affirmative measures to cause the dissolution of the USSR.  After the election of George Bush, Sr., however, the US reversed.  Astonishingly, we worked to preserve the USSR intact. Jack Matlock, the US ambassador to the Soviet Union at the time, said directly: "The common assumption that the West forced the collapse of the Soviet Union and thus won the Cold War is wrong. The breakup of the USSR into 15 separate countries was not something the United States caused or wanted."  As we know, Ukraine ignored Washington, declared independence, and the rest is history. So, if "winning the Cold War" meant the collapse of the Soviet Union, did that occur because of, or in spite of, America's containment policy?

                   What happened after the fall of the USSR? We never implemented or even conceived of establishing a "Marshall Plan" to secure the independence and security of the former captive nations as a bulwark against Russia. We did not do what we did with the Marshall Plan in Europe in WWII, even though the necessity for doing so after the fall of the Soviet Union was ten times greater.  Unlike the devastated economy and military capacity of Germany, the Soviet economy, though in poor shape, was intact. And its military capability was very much intact as well. But most critically, while Germany came to terms with its past, and admitted, apologized for its crimes, Moscow accelerated in the opposite direction.  It celebrates its crimes.

                   Why were we so passive? Because, again, we simply "hoped" that things would change.  How, why? What, exactly, did we think the millions in the KGB, in the nomenklatura, would do, where would they go?  They would somehow become democrats overnight?  Why? How? What about the secret people making secret poisons in secret laboratories in secret cities?  How could we possibly consider that that vast repressive system, with such a bloody history, would simply suddenly change.  Again, we simply "hoped" that it would. This total lack of responsibility by Western democracies for their very own security, the passivity and refusal to face reality and anticipate the future, is startling.  Unfortunately, it was not the first time.

                   History is another name for experience, and experience is another name for a book of lessons.  What lessons does Putin draw from all this?  His first conclusion is that the West itself has learned no lasting lessons.  We have not learned from our experience, and therefore have no predictive capacity.  Our experience was never sufficiently painful to leave a lasting imprint on our societal memory or political institutions.  Thus, for example, President Obama came into office wholly innocent about Moscow, but at the end he was hopefully at least somewhat more aware. But the revolving door in politics preventing the solidification of lessons to be learned. What conclusions do we expect Putin to reach?     

                   Furthermore, Putin knows that we don't have any understanding that Russia is a predator state.  We have no conception of the Soviet system, and cannot grasp the significance of Putin's background, his resurrection of Stalin, and its implications for the West.  We don't bat an eyelash over the fact that there is a "KGB Bar" in New York City, or that Jay Kearney, President Obama's press secretary, has Soviet propaganda posters in his home, and splashed on the pages of a major Washington magazine with no objection by anyone.

                   In 1999, Putin celebrated Stalin's birthday. In that year, we also saw the Moscow's false flag operations in the Moscow apartment bombings, serving as a pretext for Moscow war against Chechnya.   His so-called Millennium Speech at the end of that year was an unmistakable blueprint for his future.  Only months later, in 2000, Condoleezza Rice was asked at a conference in the US what was the key issue that would indicate to her what kind of person Putin was, if he would be the kind of person that the US "could work with". She replied that it would depend on what kind of tax reforms he would undertake.

                   Later that year, we saw no significance in Putin's celebration of Felix Dzerzhinsky's birthday, the notorious founder of the Cheka, precursor to the NKVD and KGB.  And that was on 9/11, the day of the destruction of the World Trade Center towers.  In February 2002, at the Winter Olympics in Salt Lake City, Utah, Putin, in his typically probing manner, tested a "light" version of Soviet symbolism. No reaction by the West. In the following year, in 2003, Michael McFaul, President Obama's future ambassador to Russia, published a book predicting that Russia was no longer a threat to the West. By April 2005, when Putin lamented that the fall of the Soviet Union as a "tragedy", he had already for six years been celebrating its bloody past.  The West ignored it all.  Today, Che Guevara remains a fashion statement.   

                   Putin sees the West in a historically self-imposed requirement "not to offend" or "not to antagonize the Russians."  On July 2, 1934, the British Foreign Office received an inquiry from the House of Commons about Moscow's starvation of Ukraine.  The internal memo circulated within the Foreign Office read: "We do not want to make it [information about the Ukrainian genocide] public, because the Soviet Government would resent it and our relations with them would be prejudiced. We cannot give this explanation in public."

                   George Orwell's Animal Farm was rejected by 14 publishers because they "didn't want to offend the Russians."

                   In the 1970's and 80's, Western intelligence knew that the Kremlin was organizing, directing and financing Middle East terrorism against the West under the name of "Arab Nationalism".  Later it also extended to terrorism by local actors in Germany, Italy and Ireland. Yet Western politicians wanted to keep this quiet, not wanting to "offend the Russians."

                   The United States, in particular, seems to be particularly compelled to "make nice."  "Can't we just get along and be friends?" President Truman is generally recognized as having been more hard headed than President Roosevelt, but even Truman wrote in his diary, after the war was over and when it was already clear that Stalin had deceived the West about Eastern Europe: "I'm not afraid of Russia.  They've always been our friends, and I don't see why they shouldn't always be . . . so let's just get along." The same approach we see repeated by Presidents Carter, Bush and Obama.  Only months after Putin invaded Georgia, President Obama initiated his infamous "reset" with Russia.  How can it be that it is we who made the overture to Putin, and not the other way around?

                   Putin sees us trying to transfer our commercial genetic code and our deal making culture to our relations with the Kremlin.  That does not work.  The words "stability" and "management" appear endlessly in Western writing and commentary about Russia.  That is what "doing business" requires.  But that has never been the way that the Kremlin operates.  It thrives, needs and therefore creates instability.  It is always on the offensive. It exerts a hydraulic pressure of pushing, accusing, blaming, distorting, demanding and attacking. Relentlessly. The West, on the other hand, is reactive only, perpetually responding from one crisis to another to another.  We are Pavlovian.  

                   And, of course, doing business means entering into agreements.  In our psyche, an agreement is a roadmap to resolving a problem. Agreements with Russia do work, but in the very opposite direction and with the opposite result that the agreements are meant to achieve. We scrupulously comply with agreements.  Russia scrupulously does not. Indeed, the one exception to our trying to superimpose our commercial heritage in dealing with Russia is that we tolerate and encourage the very kind of behavior that we would never tolerate in a business setting--endless breaches of agreements by the other side of the table.  The only exception to our lack of predictive capacity that I mentioned earlier is that we have superb predictive capacity about Moscow's breach of the very next agreement. Inexplicably, we simply ignore the breaches, always coming back for more. After WWII, the US was #1 in the world, the sole superpower, economically and militarily.  Only the US had the atomic bomb.  After forty years of containment and dozens of agreements with Moscow, what was the result?  The USSR immeasurably expanded its global influence, and its military/nuclear capacity had at least reached parity with the US.  So much for agreements.

                    And finally, there is the question of money. During the course of a century, Western democracies were the source of untold amounts in economic value to Moscow, whether in forms of credits, technology, know how, or other direct or indirect economic benefit. Without the West having economically propped up the Soviet Union it would have collapsed much, much earlier.  The other side of it is that today it is we who are captive to Russia's money, and not the other way around. In 2006, a British citizen was assassinated by a miniature nuclear device in the front yard of Buckingham Palace, so to speak.  Alexander Litvinenko, a British citizen, was the victim of nuclear warfare on British territory. What did three successive British Prime Ministers do?  Nothing. Russian money purchased London.

                   So, what are the consequences when the West has such a character profile? We are hugely susceptible to what I call "strategic deception".  George Orwell called it "reality control."  The late historian, Robert Conquest, was more direct and call it simply "mind slaughter."  When dezinformatsia, maskirovka, provokatsia, kompromat, agitatsia combine together and superimpose a total disorientation, a false perception, whether upon a person or upon an entire nation, it creates not just an alternative reality.  It creates total reality reversal.  It's doubly dangerous, because it's in our subconsciousness.  I sometimes give the example of your waking up in the middle of the night and finding yourself in the wilderness.  You look for the bright star in the sky, the North star, in order to get your bearings.  You see the star, or you think you do.  However, you do not realize that while you were asleep you were transported to the Southern Hemisphere. All of your decisions and actions are correct, based on the assumption of that bright star that you see is what you assume it is-- the North Star.  But it's not.  You wind up walking in the opposite direction. You don't even think about questioning the accuracy of the assumption because you're not even aware of it.

                   What is the first reality reversal that confronts us?  That Russia is merely being "defensive."  You've heard it all before, and I know that no one here shares that view.  Nevertheless, it remains an enormously powerful one, regardless of the fact that Russia's most recent intrusion into the electoral processes in Europe and the US.  You all know the litany--that Russia has "security needs," that it requires "spheres of influence," that it is "afraid of NATO encirclement", that it has "legitimate interests" and "historic claims," that it feels "victimized" by World War II, that it needs a "buffer," etc.

                   This is nothing new.  President Roosevelt assured us: "Stalin doesn't want anything but security for his country, and I think that if I give him everything I possibly can and ask nothing from him in return, he won't try to annex anything and will work with me for a world of democracy and peace."  That, obviously, was during the war. But after WWII, and similar to what President Truman had said, Secretary of State Dean Acheson added: "To have friendly governments along her borders is essential both for the security of the Soviet Union and the peace of the world."  

                   Much credit is due to Mitt Romney and his advisers, when during the first presidential debate with President Obama Romney identified Russia as America's primary geopolitical foe.  Unfortunately, Mr. Romney later wrote an article in The Wall Street Journal that America should give the Kremlin assurances that we wouldn't threaten Russia's influence in Kyiv. This is reality reversal.

                   "Russia's immense contribution in World War II is part of their proud history of standing up to imperialist powers."  This is in the introduction of an extended speech that US Ambassador to the UN, Samantha Power, gave in January of this year.  I was pleased to hear that, in the balance of the speech, and after many years Ambassador Power had begun to understand some of the hard reality about Russia, but her statement at the beginning is inexcusable. In the 1890's, the Russian General Staff conducted a study of military campaigns between 1700 and 1870.  Russia waged thirty-eight wars. Two were defensive.  How else do you become the largest empire, and also the largest country, in the world, encompassing an entire one-third of Asia and much of the European sub-continent?  You do not do so by being "defensive."

                   When we participate in such reality reversal we become multipliers in the denial of history, in the denial of the victimization of entire nations, and in the applause of the perpetrator. Why don't they have the right to exist?  It is the victim nations that the Kremlin has persecuted for generations, and in many instances for centuries, that have the right to feel secure, who have "historic claims" against Russia, who need "spheres of influence," and who require a "buffer." And it was the failure of the West to recognize this that has led to the situation that now confronts us.  

                   Part of that same "defensive" deception is Russia's re-engineering of World War II. "Had it not been for the colossal sacrifices made by the Soviet Union in WWII--in which they lost more than 20 million people, many times more than any other nation, friend or foe--the war would have dragged on much longer."  Again, this is Ambassador Power speaking on that same occasion. And note that Power again equates "Russia" with the "Soviet Union," and even describes the Soviet Union as a "nation." It was not.  It was an empire.  A quarter of century after the fall of the USSR, far too many Western politician and commentator continue to speak and think in precisely the same terms.  This is inexcusable, and again illustrates that we have never grasped the very essence of the USSR, or the meaning of Putin's celebration of it.

                   As to World War II, itself, let's be clear that Stalin and Hitler were not simply allies.  They were equal partners, joint venturers.  When Hitler was appointed Chancellor in January 1933, thanks to the Soviet Union the German armaments industry was already far along the path toward being rebuilt. Under the Treaty of Rapallo with Germany, in the 1920's Moscow provided critical resources for the rebuilding of Germany's military capability, much of it plundered, ironically, from Ukraine.  German military maneuvers took place on Soviet territory.  Tours of the growing GULag were provided. And this was at the same time that Western, particularly American, industrial assistance was flowing to the Soviet Union. How does Putin assess our strategic acumen?

                   How many decades have passed since the end of World War II?  Why don't we ever hear about Hitler's purpose for the war?  It was to colonize Ukraine. Only during this past summer did Yale's Professor Timothy Snyder address the German Bundestag reminding Germany of its history.  It's an astonishing distortion when Germany feels guilt about WWII and "Russland", when it was "Russland" that started the war together with Germany, and when it was not "Russland" but Ukraine that was Germany's target and greatest victim.  The number of Allied troops that invaded Normandy was 132,000.  The number of Wehrmacht and other troops that invaded the Soviet Union in Operation Barbarossa on June 22, 1941, was 3.2 million.  And that did not just include Germany troops, but Hungarian, Rumanian, Slovakian, Finnish, and Italian troops as well. Do we refer to those countries today as "Nazi"?  It's no wonder that Ukraine suffered more than any other country during World War II, whether measured in terms of loss of humanity or physical destruction.  Four times more Ukrainian civilians were killed in World War II than the combined military deaths of the United States, France, Italy, Great Britain, Canada. Millions more Ukrainians were killed serving in the military and taken as slave laborers to Germany.  Ukrainians are Nazis? It's another massive reality reversal, another strategic deception.

                   Yet another example in the strategic deception that Russia is merely being "defensive" is the drumbeat of NATO "encirclement". First, I suggest we look at a map. How many NATO countries border Russia? "Encirclement" is a geographic impossibility. And even if it were possible, we are to somehow feel guilty about it?  Second, Putin knows that NATO is defensive. He knows there that is no chance, whatsoever, that NATO will invade Russia.  Stalin knew about NATO and its purpose before it even formally existed. Third, we never exhibited the psychology of affirmative, "take the offensive" thinking about Russia during the last 100 years even where there was never any military component. Fourth, if there was ever a time for fear of an invasion, it was during WWII and immediately thereafter.  That never happened, and could not have, given the absence in the West of any understanding of Moscow's threat.  Fifth, how, exactly, will more than two dozen nations be coordinated?  For what purpose?  To achieve what?  Finally, for us to believe that "NATO encirclement" is something that Putin in fact fears would also require that we simply ignore the hard, demonstrable reality that he knows and understands our political dynamics better than we do.  He has proven that.  Does anyone here in the room really think that public panic (due to what, exactly?) in the West about Russia will rise to the level that it translates into political decisions for a coordinated military invasion of Russia? This is nonsense.  Putin and Lavrov may beat that drum for domestic and foreign consumption, but they know reality well enough.  So should we.

                   The second example of reality reversal is Western talk about "engaging" Russia in fighting ISIS.  Where is the logic of that, however, when the roots of ISIS and Al Qaeda reach back to the genetic code for "Arab nationalism" that the Kremlin created in the 1970's and '80's at Patrice Lumumba University in Moscow and the surrounding KGB training camps?   Today, Moscow does not have to be directing or controlling ISIS. It simply receives the benefit of a weakened, disoriented, disheartened and dispirited West.  Furthermore, consider the "genius" that it took for Moscow to be able to turn the Middle East against the West a generation or more ago.  First, the Soviet Union was an atheistic state.  Second, it --and before that, the Russian Empire--had a violent history of suppressing the Muslim nations of the Caucasus and Central Asia. And yet the Kremlin prevailed, and a Nobel Prize was awarded to its creation, Yasser Arafat. Truly, a remarkable achievement.

                   Finally, Ukraine.  I know there are those present for whom Ukraine is not on the mental map as are other "traditional" countries of Europe, such as Poland or Italy, for example, even though Ukraine's now international recognized status is not questioned.  I will not get into the distortions of Russian historiography that were put in place in the 18th and 19th centuries, and will only mention that Russian historiographers who emigrated to the West after the Bolshevik coup d’état established the foundation of so- called "Russian studies" in the West.  Though the historiographers may not have been supportive of the Bolshevik regime, they nevertheless transplanted to the West the imperial history that they themselves fashioned and absorbed.

                   We've all heard the assertions: "Russia traces its 1000 year history to its beginnings in Kiev", "Ukraine is a historic part of Russia," "Kievan Russia was the beginning of modern Russia," "a thousand years of Russian Christianity." As a result, as Putin whispered in President Bush's ear, Ukraine does not exist. Neither did it for Hitler, who identified Ukrainians in the camps as either Russians or Poles.

                   So let's examine the reality reversal, the strategic deception that is grounded in the anomaly of the periphery of the Kyivan Rus' state, Russia, pre-empting and laying claim to the center, Kyiv.  And remember, at that time the amount of Russian territory that was part of the Kyivan Rus' empire was only some 3% or so of Russia that we know today. 

                   Firstly, I know of no other instance in history or geography where the creation of an artificial 1000 year pedigree is used to justify war, invasion and terrorism today and accepted so totally uncritically by the West. Indeed, it is more logically and intellectually consistent to justify Kyiv's "historic claim" to Russia, as part of Kyiv's former empire.

                   Secondly, even if we accept the "1000 year history" argument, then what is the result?  Because of the Viking influence in the establishment of the Kyivan Rus' state, Ukraine today can claim Oslo, Stockholm or Copenhagen as the beginnings of Ukraine?  Norwegians, Swedes and Danes are "really" Ukrainians", or "Little Ukrainians" or "younger brothers"? The same holds true with the influence of Byzantium on Kyivan Rus', complete with the Cyrillic alphabet and religion. Ukraine "really" began in Byzantium/Istanbul? Today's France, as Spain, Germany and Israel, were part of the Roman Empire, as was part of Russia a part of the Kyivan Rus' state. Does that mean that France can claim that Rome is "really" French, and that Italians are Frenchmen?  And what of Romania, which appropriated even the name of Rome, as Russia did with "Rus'"? What is the German word for France?  Frankreich.  Land of the Franks, a Germanic tribe.  What are we to conclude from that?  France has a claim to Germany, or is it the other way around?  I will not belabor the point.  Ignorance of history, and the lack of critical thinking on something that is not very deep, makes the West, again, a prime target for such reality reversal.

                   So why does Putin like the West?  First, the West does not understand how and why it finds itself in the situation that it is in today.  One country, with nothing to offer to the world, has managed to put the Western democracies on the ropes. How, why, is any of this possible?  And why are we suddenly so very surprised?  But where do we see any self-examination? Second, Western attention to Ukraine has historically been at the opposite end of the spectrum compared to Moscow's razor focus. Even today, Western concern doesn't even begin to approach the degree of seriousness that is necessary, given that Ukraine drove the nail into the coffin of the USSR, and in a very real sense saving the world from it.  In addition, as we know Ukraine surrendered its nuclear arsenal, in large part to its historic persecutor.   What do we think that Putin makes of all this?  What conclusions does he draw about our strategic sense? His money is safe with us, and existing sanctions are and will remain inconsequential in impacting the situation on the ground.

                   I suggest that in the next two days we seek to benefit from the Forum so that we can return to our respective countries in order, ultimately, to work for their national security interests. And that is achieved by anchoring the security and independence of Ukraine as the best chance we have of turning Russia inward. We must think strategically and escape from the perpetual defensive, reactive position that we have frozen ourselves into.  And let there be no mistake. Only then will tyrants in the Middle East, China, and North Korea also understand that the West recognizes and has the will to act in its own self-interest.

                   Thank you very much. 

  • 30 Aug 2017 11:07 AM | Myroslaw Smorodsky (Administrator)

    KYIV POST August 30, 2017 

    Bohdan Vitvitsky: Ukraine and drive-by analysts

    One would like to think that, after the catastrophes of Vietnam and the occupation of Iraq, individuals who claim some expertise in foreign affairs would at least have learned one lesson: that ignorance of local affairs and conditions mixed in with a dose of epistemological arrogance usually produces a pretty sorry admixture.

    Vietnam turned out rather badly because we didn’t or didn’t want to understand that that conflict was more about anti-colonialism than about communism and falling dominoes, and also since we were ignorant of some 700 years of historical conflict between Vietnam and China, we couldn’t draw any correct inferences from that history about likely future Southeast Asian alignments. And appointing individuals with either superficial or no knowledge of Iraqi society to make decisions with profound consequences there could not result in anything other than what Thomas Ricks correctly called a fiasco.

    What is striking about Michael Brendan Dougherty’s most recent analysis of whether we should provide Ukraine with defensive weapons in his “Let Ukraine Defend Itself” appearing in The National Review is that same superficial type of familiarity acquired from a distance.

    But such superficial analysis is typically wrong. The main reasons why we should provide defensive arms to Ukraine are the Budapest Memorandum, if we read it correctly, and because it is in our national interest, as will be explained below.

    Click here to read the entire article in the KYIV POST 
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