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  • The Russian view on Ukraine: An international law perspective

The Russian view on Ukraine: An international law perspective

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Ukraine, a site of conflict over many centuries, is once again the scene of battle. First thoughts must be with the civilian population and Pope Francis’ call for prayer is probably the most practical course for most of us far from the action. Unfortunately, while it is clear that there have been casualties, both military and civilian, on both sides, the fog of war makes it very difficult to say more. Each side is active on social and traditional media and so a clear picture of what is going on is hard to come by.

It should also be remembered that, since the current Ukrainian government took power in 2014, there has been virtually constant shelling in the East of the country with losses on both sides which have also been variously reported. We know, too, that there are also many people displaced on both sides and that Russia and Poland, in particular, have played the major share in hosting refugees. In short, this is a tragedy which is still unfolding at the time of writing. 

In understanding the Russian invasion, therefore, it is important to avoid falling into easy memes like ‘unprovoked attack’. There are clearly good grounds for doubting the legality of Russia’s action at international law and it is also true that very few commentators expected a full-scale invasion to be launched. Nevertheless, this is not a bolt from a clear sky but an intensification of a conflict which began at least eight years ago — and possibly thirty.

As I mentioned in a years-old article at the start of this crisis, the rhetoric used by Russia to claim recognition of Crimea (and now, of the Russian-speaking areas in Eastern Ukraine) is identical to that used by NATO in the case of Kosovo. Great powers argue for self-determination when it suits geo-political ends, and against it when it doesn’t. It’s therefore worth having a look at the geopolitics that got us here.

In the thirty years since the Cold War, NATO has expanded over Russian objections, to the extent that it now abuts Russian territory. At the same time, the US has unilaterally withdrawn from most of the Cold-War arms control treaties. Open Skies, the Intermediate Nuclear Forces Treaty, the Anti-Ballistic Missile Treaty, all have been unilaterally renounced. Russia had repeatedly objected to NATO expansion, most recently in diplomatic demarches sent last December but had received only the response that ‘if the Kremlin’s aim is to have less NATO on its borders, it will only get more NATO.’ Even before a tank or drone had crossed the border, swingeing sanctions had been imposed by the EU and NATO on the basis of the mere threat of a Russian invasion. Given that even maintaining troops on its own territory triggered sanctions, the Russian government may well have calculated that diplomatic approaches were unlikely, and there was little to be gained by restraint. At the macro geopolitical level, therefore, it is hard to find easy heroes and villains.

 

'At the macro geopolitical level, therefore, it is hard to find easy heroes and villains.' 

 

Local factors likewise complicate the general picture, with a long-running insurgency in the Luhansk and Donetsk regions in the east of Ukraine (noted above). After the violent overthrow of the elected government in 2014, pro-Russian rebels refused to accept this turn of events and declared independence. As mentioned in my previous piece, the peace agreement (the Minsk accord) which followed the subsequent Ukrainian assault has not held, with Ukraine vowing it would never implement it.

Since the current Ukrainian government took power in 2014, there has been virtually constant shelling in the pro-Russian Luhansk and Donetsk regions. As journalist and former diplomat Craig Murray notes, the Organisation for Security and Cooperation in Europe, tasked with monitoring the Minsk agreements, reported increased shelling of the separatist areas by the Ukrainian army in the days leading up to the latest escalations.

The Russian recognition of the separatist regions, which came on 21 February, could be seen as something of a response to this, even if the scale of the reaction may not have been proportionate. Citing the Kosovo precedent of a right to self-determination in the face of mistreatment of the civilian population and an accompanying ‘right to protect’, Russia was echoing previous NATO excuses for interference with sovereignty — excuses which had received at least some support from the International Court of Justice in its advisory opinion on Kosovo.

While the eventual Russian attack had all the hallmarks of being organised long in advance (which cast doubt on its bona fides), another feature of the timing may well have been Ukrainian President Zelensky’s threat on 19 February to acquire nuclear weapons. Indeed part of Putin’s pretext to invasion is the fear of Ukraine developing a nuclear arsenal itself (unlikely) or, more probably, stationing short to medium range US nuclear weapons in NATO-owned bases in Ukraine (such as the Ochakov naval facility on the Black Sea coast). We do not need to imagine what the response would have been had the roles of Russia and the US been reversed.

It will, after all, be remembered that many US lawmakers wanted to launch precisely the same kind of campaign in Cuba when that country acquired Russian nuclear arms in the 1960s. Back then, however, there were adults on all sides willing to do the hard diplomatic work of de-escalation and détente was a recognised phenomenon, rather than a dirty word. This seems no longer to be the case.

So much for direct military threats. While it is hard to claim international law justification for Putin’s claimed desire to ‘de-Nazify Ukraine’ (even though it is clear that certain elements of the Ukrainian army, including the Ukrainian National Guard’s Azov regiment, are avowedly Nazi in their ideology), it is equally hard not to notice the lack of similar outrage when the US (similarly claiming vital national interests) launched or assisted similar ‘shock and awe’ campaigns of ‘regime change’ in Yugoslavia, Yemen and, most notably, Iraq, none of which shared a land border with it. None of these interventions had UN approval either. It should be remembered that the only persons to be prosecuted in connection with Iraq were the whistle-blowers who publicised NATO atrocities. Indeed, Julian Assange still lingers — without charge or trial — in a British prison.

By contrast, the Western shock now seems to be precisely that a major military offensive has been launched in Europe by a non-NATO country. As to what happens next, much is likely to depend on how the next few days play out. It remains to be seen whether the Russian government (with the Soviet and US experiences in Afghanistan fresh in its mind) will want to occupy a hostile country and remain for any length of time in non-Russophone areas of Ukraine.

Whether it has more limited war aims, and whether more loss of life and potentially thermonuclear escalations can be avoided, however, remains to be seen. Both sides have now announced an escalation in their nuclear posture which should be a cause for much greater fear than it is — sadly, no-one seems to watch Doctor Strangelove anymore.

 

 

 

Justin GlynFr Justin Glyn SJ has a licentiate in canon law from St Paul University in Ottawa. Before entering the Society he practised law in South Africa and New Zealand and has a PhD in administrative and international law.

Main image: A Ukrainian tank. (Andrew Burton / Getty Images)

Topic tags: Justin Glyn, Ukraine, Russia, International Law, War, Invasion, Putin

 

 

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Existing comments

Putin's ambition to take Ukraine claiming de Nazification and liberation and warding off the threat of Nato expansion are a smokescreen for naked Russian imperialism and a grab for Ukraine's resources and territory. (Sounds a lot like Chinas liberation of Tibet in 1952.)
Putin is driven by greed and power.
He is a dictator never fairly elected and the death of innocent men, women and children is of no consequence to him. Nato and the West should assist Ukraine militarily otherwise the fall of Ukraine is inevitable.


Francis Armstrong | 08 March 2022  
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Touching to read Francis' 'I don't know what the hell I'm here for but I'm willing to die for it' position, but count me out. Here's why:

a) China has held suzerainty over Tibet, its vassal state, for well over a millennium. While I'm unhappy with that, its a fact of life;

b) any construction of Tibet as an independent state is a false one. While I like the Tibetans and somewhat admire the Dalai Lama, theocracy, itself arisen in Tibet since the weakening and attempted dismemberment of China by Europeans (including Russians), has no place in the modern world;

c) the McMahon and Radcliffe Lines, which established the NE and NW boundaries between India and Tibet were figments of the imagination of colonial Britons marking the territorial limits of their imperial conquest;

d) it is unlikely that India, which has fought two wars with China on this issue, will ever be able to re-establish those boundaries, either through negotiation or appeal to the international court;

e) much as I dislike him, Putin is a nationalist who, by all accounts, enjoys the support of his people; and

f) divided between Greek Catholic and Russian Orthodoxy, Ukraine will inevitably be partitioned.


Michael Furtado | 20 March 2022  

There are two factual errors in the first few paragraphs here: Zelenskyy took power in 2019, not 2014. NATO has abutted Russia since its inception: Norway was one of NATO's initial members in 1949 and has a border with Russia.


Erik Hoekstra | 08 March 2022  
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Fair point about Norway. In one sense, I agree about Zelensky: he was after all elected to bring peace. In a deeper sense, however, the powers who were installed after 2014, and who still hold actual power, are the same - as Zelensky found out when he tried and failed to rein them in.


Justin Glyn | 09 March 2022  

I know nothing about international law, yet, somehow I feel sure that if a country has a seat at the United Nations, like, it's a country, then no other country is allowed to invade with the intention of controlling the country, because .... it once belonged to our empire. Putin should learn to live in the 21st century, not the eighteenth.

It's interesting that when Britain let go of its empire, the newly independent countries were happy to join The Commonwealth and continue association with Britain. When the Eastern European nations managed to escape Russian control, with the break-up of the USSR, they headed straight for the west, for the E.U., NATO etc. the last thing any of them want is an association with their former masters in Russia.


Russell | 08 March 2022  
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There are some conceptual problems with your post, Russell: a large number of former non-aligned UN members have maintained neutrality in this dispute.

The Commonwealth is a loose cultural association of similar, although not all, English-speaking nations. The Irish and USA don't belong and its rationale is far from being political, let alone democratic.

The French Empire, subsequently called the French Community and the French Union, occupies a similar cultural 'space'.

Russia exercises some influence in China (and vice-versa, since the Soviet Union undoubtedly assisted with the Chinese Revolution), while China exercises considerable influence in much of Africa and Asia and increasingly in Eastern Europe and Latin America.

To regard Ukraine as anti-Russian is to misread the geopolitics of that country. Western Ukrainians detest Russia, whereas Eastern Ukrainians consider Russia an ally. While the UN favours a plebiscite in Kashmir, India won't implement a decision that would go against it.

The solution, first brokered at the time of Indian Independence, may well be to partition Ukraine, just as India and Pakistan were in 1947, especially if there's no possibility ever of conceding to irredentist claims on either side.

Diplomacy works: the Czechs and Slovaks had a highly successful 'velvet divorce'!


Michael Furtado | 20 March 2022  

Thank you Justin Glyn for some dispassionately stated facts and analysis. It is difficult to be clear-eyed when observing a David & Goliath struggle. We see relatively weak nation besieged, its citizens suffering, its structures and infrastructure destroyed by a powerful implacable antagonist. The brutality of Russia's assault is undeniable but, as is so often the case, there's more to the story. I did think especially of parallels Iraq, 'weapons of mass destruction' etc. This article provides more context and insight; I welcome it.


Myrna | 08 March 2022  

It is disappointing that a 'PhD in administrative and international law' didn't extend to an examination of the agreements entered into when the Soviet Union broke up and Ukraine voluntarily gave up its nuclear arsenal and was assured its borders would be protected. And why shouldn't a sovereign state join whichever organisation it believes is in its best interest? My Ukrainian father (who was taken to Germany as a slave labourer by the Nazis) persuaded my German mother to emigrate after WW2 precisely because he feared Russian aggression. Putin, a former KGB agent, is on record saying the breakup of the Soviet Union was a huge mistake. It is precisely this grandiose notion of empire, the continual aggression towards and the desire to dominate former members that is so evident. What have approximately 140 million Russians to fear from 40 million Ukrainians? It is disappointing that Glynn cannot unequivocally condemn the recent unprovoked attack and indeed the violation of Ukraine's borders in the war that started 8 years ago or endorse Ukraine's sovereign integrity. Kyiv was 1000 years old before Moscow even came into existence. It seems that Glynn's limited historical research appears to have bought into Putin's propaganda line.


Ann | 08 March 2022  
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Ann, I join with you in grieving that Ukrainian innocents have forever been and currently are undoubtedly among the most hapless victims of war. Thank you for raising this.

Granted that our sympathies should, first and foremost, go to those innocently displaced by the gruesome atrocities of war, might not your outrage at Fr Glynn's article be assuaged by directing your energies towards promoting a more positive attitude to asylum seekers, instead of supporting a war response that will only result in more of the same?

For instance, it is surely scandalous as well as racially unjust that your parents were granted asylum in Australia (and similar people in various parts of the globe: I myself attended school and university with some of them), while no one in these columns has the courage to remark on European borders being shut to Muslims but opened up with welcoming arms to Ukrainians.

I'm afraid that the stench of 'Western' hypocrisy - not necessarily from you, but from many on your side - is so obvious as to warrant introduction to this discussion.

In 'real-politik' it is obvious Putin won't back down while Biden won't intervene. Why invest in blood instead of rescue?


Michael Furtado | 20 March 2022  

Thanks, Erik. I take the point on Norway (although NATO expansion in breach of promises to Russia is a matter of record). As to Zelensky coming to power, that’s true in the most literal sense only. When he did try and rein in the militants and start the peace process for which he was elected, he was told to back off or be hanged. He backed off and the hard men who had been in actual power since 2014 remained so. The story with the relevant interview with Dmytro Yarosh, is here: https://www.moonofalabama.org/2022/03/zelensky-and-the-fascists-he-will-hang-on-some-tree-on-khreshchatyk.html#more


Justin Glyn SJ | 09 March 2022  

I don't know if I have been living in a bubble, but this is the most thought provoking analysis I have read to date. So much news commentary in general is presented in black and white terms, such as " Why hadn't the government" anticipated this or that, or aided or assisted in every conceivable occurrence or tale of human misery or deprivation.
This piece was an amazingly short, but in depth analysis, unlike so many others, which start from a a one sided position and go on backwards and forwards from there.
I will be looking our for further writings of Justin Glynn.


alan roberts | 09 March 2022  

"Pope Francis' call for prayer is probably the most practical course for most of us far from the action"
Pity the free world hasn't recognised that, rather than sanctions and, if necessary, military action, prayers are capable of ascending into the heavens and dispersing the missiles killing innocents for no reason other than the fact that a little hoodlum (personal weaponry is probably inadequate) feels the need to be a big boy bully. With admirable courage and more than a modicum of success against superior and obviously incompetent forces the Christian Ukrainian people have shown the way to deal with thuggery. They need more weapons rather than prayers which I am sure they are using to the maximum. As in any of his ethereal musings Pope Francis needs to join the real world. Perhaps he doesn't understand that war can be both just and unjust.


john frawley | 09 March 2022  
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The 'real world' which Dr Frawley inhabits is tragically one in which those who charmingly imagine that its a 'free world' are blissfully unaware of that very same 'free world' employing its freedom-seeking propaganda forces in the form of the CIA to topple the democratically-elected Mossadegh government in Iran to install the Shah as its dictator.

The consequences of this disaster, orchestrated by a Britain seeking to maintain control of Iranian oil, are still reverberating throughout not just the Middle-East but globally in terms of the politics of oil-pricing and its impact on global energy markets but also in terms of triggering the rise of the Islamic fundamentalist awakening that has fed the violence of terrorism and counter-terrorism ever since.

While Dr John may derive some comfort from nailing his judgments to a thoroughly partisan mast, millions of innocents have perished because of the West's toppling of the democratically elected Sukarno government, its assassination of Patrice Lumumba, the Congolese Independence leader, and the assassination of Cuban freedom-fighter, Che Guevara.

Add to that the CIA-staged armed-forces coup against the democratically-elected Chilean government and Franco's rise to dictatorship and he might begin to question some of his judgments.


Michael Furtado | 04 April 2022  

The contention that for 30 years, “NATO has expanded over Russian objections” is untrue.

In 1993, Boris Yeltsin said Russia had no objection to Poland joining NATO; in 2002, when the Baltic states of Estonia, Latvia and Lithuania were joining NATO, Vladimir Putin described it as “no tragedy”; US ambassador to Russia from 2010 to 2014, Michael McFaul, stated that his Russian counterparts “never once complained about NATO expansion”; in 2014, Mikhail Gorbachev stated, “The topic of NATO expansion was not discussed at all (in 1990) and it wasn’t brought up in those years”; former Soviet foreign minister Edward Shevardnadze agreed that the question of NATO’s expansion “never came up”; and in a 2020 study of Russian strategic doctrine, assessments and decisions, Kimberley Martin of Columbia University wrote: “There is simply no evidence that Russian military planners were concerned about NATO’s expansion before Putin decided to invade Crimea.”

Putin called the collapse of the Soviet Union, “the greatest geopolitical catastrophe of the century” and “the collapse of historical Russia” stating that, “Modern Ukraine was entirely and fully created by Russia, more specifically the Bolshevik, communist Russia.”

This is Putin’s grandeur-seeking war.


Ross Howard | 09 March 2022  
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Ross, you might be interested in this recently released trove. Yeltsin initially did not object to the expansion of NATO, because he was misled to believe that Russia would be a member of any final European security structure. When he realised he had been duped, he and his successor (Putin) did indeed object - frequently: https://nsarchive.gwu.edu/briefing-book/russia-programs/2018-03-16/nato-expansion-what-yeltsin-heard


Justin Glyn SJ | 10 March 2022  

Justin Glynn has been gentle and informative despite being personally vilified. The hard-liners in this heated exchange need to pause in terms of the armed response strategy that hallmarks many of their contributions.

Russia has consistently asked that Ukraine be exempted from membership of NATO: the same NATO that invented the myth of 'weapons of mass destruction' as an excuse for decimating Iraq and, later, for 'taking out' Syria and Afghanistan.

The fact also remains, despite the message of forgiveness to all Christians, that Russians remembers the role played by Western Ukrainians both in the mass-murder of Ukrainian Jews as well as in the siege of Stalingrad, which cost 1,000,000 lives.

While memory is an hopeless peace-maker, it is an unpalatable fact that the historical trajectory covering the Second Global War, coupled with the Cold War followed by the collapse of Communism, has resulted in humiliating Russia.

Russia constitutes not just the Eastern half of Christianity but also of a pan-European imperialism that greatly benefited the West politically and economically but severely denied those gains to Russia because of nearly a century of Communism.

Have today's anti-appeasers, citing the WWII precedent, not over-reached themselves in comparing Russia with Nazi Germany?


Michael Furtado | 20 March 2022  

Congratulations Justin for this excellent article.
While we express our opposition, it is important to spell out as you have done that there are many reasons why Russians have been concerned about what has been happening on its borders.
My wife and I visited Russia in 2013 and the people we met spoke about WW2 as though it had only finished a few years before. Many western news services fail to mention that 27 million Soviet people perished in WW2 and that the German troops that invaded entered the Soviet Union through the Ukraine aided and abetted by Nazi groups there.

And after the 2014 CIA coup in the Ukraine, the Avoz Brigade -a neo-Nazi militia which played a big role in the coup – was incorporated into the Ukraine military. And some of these crimes have been horrific. A few months after the 2014 coup, extreme right wing nationalists attacked the trades hall in Odessa. Reports indicate that 48 perished – either burnt alive or overcome with fumes – and 250 were injured,

And then there has been the shelling of Luhansk and Donetsk by the Ukaine military

John Pilger emphasises these attacks in a Tweet he sent headed “Hypocrites on Parade” . It is very critical of the double standards of the leaders of the US and its allies.
‘Hypocrites on Parade’: John Pilger Calls Out World Leaders for Ignoring Donbass Shelling For Years - SHOAH

The talking up of the use of nuclear weapons is very worrying for all humanity.

During the first Cold War, leaders of the super powers made many mistakes, but they did observe détente and tended not to undertake threatening gestures on the doorsteps of the other super powers after the Cuban missile crisis.

It did not stop other wars, but helped to stop a nuclear conflagration


Andrew (Andy) Alcock | 09 March 2022  
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‘spoke about WW2 as though it had only finished a few years before.’

And Islamists talk about ‘çrusaders’. And BLM talks about slavery. Both people with an active agenda.

If it’s trendy to talk about the distant past as if it happened yesterday, perhaps Christians would sharpen their act if they started talking about the Fall as if it happened yesterday.


roy chen yee | 10 March 2022  

‘the Avoz Brigade -a neo-Nazi….extreme right wing nationalists’

Regression to state fascism is regrettable, and is a real possibility in Eastern Europe, but fascist states are not a problem for the West unless they get too friendly with ‘Communists’ (ie., the new fascist-makeover regimes in China and Russia).

Belarus is a West problem because it’s pro-Russian. If it was like Greece under the colonels or Franco Spain, it would be a problem for its people but not for the West, any more than the juntas were in Taiwan, South Korea and pretty much all of Central and South America.

‘Communism’ has lost its theology but the custodians of that now nominal philosophy have kept the ideological side, of a drive for dominance, as anti-West fascists. It’s simply West vs. Anti-West. Xi and Putin are the modern equivalents of Kaiser Wilhelm. With a slightly different attitude, they could be as ‘West’ as one-party Singapore or the Hindu nationalist BJP in India, and no problem for the rest of us.


All this nuisance because of two small cliques, in Beijing and Moscow.


roy chen yee | 10 March 2022  

Pope Francis is quite right in calling for prayer for the current situation in the Ukraine, because it is an extremely parlous one, the escalation of which could be even more disastrous. From what I read and see the Russian military are as ruthless as they were in Syria. Russians and Ukrainians are very close culturally: the Christianisation of Russia began in Kiev. Russian rulers, like the Chinese, were always terrified of encirclement and what they considered the split up of 'their' territories. Vladimir Putin seems to be channeling Peter the Great. We do not want a repeat of the Great Northern War with nuclear weapons. Putin's strategy seems to be the destruction, either by dismemberment or annexation, of an independent, functional Ukraine. Despite the Azov battalion's existence, the vast majority of Ukrainians are definitely not neo-Nazis, just brave patriots. It is a pity the US seems to have stymied, at least for the time, the acquisition of more fighter planes from Poland. The Ukrainians are fighting with much more modern weapons and strategy against an old fashioned and ponderous Russian military. Defeat in the Ukraine would mean the end of Putin. IMHO that would be good for both countries.


Edward Fido | 10 March 2022  

...being a Strangelove aficionado I was confused whether I should lead with "...precious bodily fluids" or Ripper's conflicting view of Clemanceau: "War is too important to be left to the generals / politicians....". What seems to be unfolding is a war left to the media (social and mainstream) and their assessment of public sentiment driving opinions. It all seems remarkably unclever; every day the world is getting updates that Ukrainian civilians are patriotic builders of Molatovs or that the UK and others are providing RPGs and Stinger anti-tank missiles, even video footage of these weapons in civilian cars, supply to guerrilla forces. Australians know we're sending munitions to support Ukraine; not unlike Ripper's observation of "Commie" fluoride in children's ice cream, there is an unwitting indoctrination of involvement in the conflict. "Loose lips sink ships"; why should we be surprised that a Ukranian/international joint military training facility for NATO RPGs was targetted? News coverage told us the UK are sending these weapons. At least the fictional (and utterly insane) General Ripper only wanted to take control of war back to the generals; despite our usual distrust of media moguls, their politics and their avarice it seems the new norm is a return to seeing "the big board" military deployments of Russian forces on TV; unknowingly, lounge soldiers.


ray | 14 March 2022  
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Wisely said and beautifully crafted, Ray!


Michael Furtado | 20 March 2022  

Thanks Michael, hopefully Mr Putin doesn't watch the ABC 4 Corners episode tonight that had the cameras rolling inside (and dismayingly, outside) a Ukranian store for anti-tank defences near Odessa. I think they didn’t give the actual street address away... but showed the various private vehicles and building that they decided Australians should see, I guess they assumed that Russian military intelligence would be watching Love Island on another channel...


ray | 21 March 2022  

Hah! I loved your lush closing remark. If only they were. I suspect it would be 'jammed'. One 'good' aspect of this tragedy, if one could call it that, is to remind people who look like us just how awful the experience of being powerless and fleeing a war-torn country can be. Sheer survival and the human instinct to block out unendurable pain suggests that we've become inured to such horrific violence when it happens to those who look 'kinda different'. For my part I can't fathom how Metropolitan Kirill of Moscow has gone out of his way to congratulate Putin and bless the troops. Blasphemy on rather a grand scale, though when Mad Vlad the Impaler has total control of the media, it will take a smarter God than I can imagine to stop him in his tracks.


Michael Furtado | 21 April 2022  

Peter Sellers gave a manic performance as Dr Strangelove. Let's keep it as a film, Ray. Putin at the moment is playing brinkmanship to the limit. Biden is not flinching but gradually tightening the economic screws. I hope praying sanity will prevail. Let's hope it does.


Edward Fido | 15 March 2022  

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