COUNTERPUNCH: PRECEDENTS OF PERMISSIBILITY

By: ALFRED DE ZAYAS

March 4, 2022

Photo credit: United Nations (UN)

Russia’s aggression against Ukraine entails a grave violation of the jus cogens rule stipulated in article 2, paragraph 4, of the UN Charter – the prohibition of the use of force without approval of the Security Council.  Admittedly, Russia has invoked article 51 of the Charter, which recognizes the right of self-defence until the Security Council is seised of the matter. However, this provision only operates when there has been a prior military attack, which a state must repulse, because its very survival is at stake. This is not the case in the current conflict.

Some legal experts have evoked the idea of pre-emptive self-defence, which, however, does not exist in international law, and is as invalid here as it was when George W. Bush invoked it to justify his war of aggression on Iraq 2003.  Some observers have suggested a justification based on the concept of vital interests of the state, which Israel invokes from time to time in an attempt to justify its crimes against Palestinians, Lebanese, Syrians and others.  Only apologists would buy these arguments that lack any legitimacy in international law – or natural law.

Our priority today must be to work for an immediate cease fire, followed by urgent humanitarian assistance and an international conference that would attempt to reach a compromise that would be conducive to durable peace in the region.  A compromise means that there must be give and take.  The Cuban missile crisis of 1962 was resolved through a pragmatic quid pro quo, whereby the Soviets pulled their missiles out of Cuba, and the United States removed its missiles from Turkey.

Whoever says war, says propaganda, and the level of fake news and false narratives concerning the conflict renders it difficult to address the issues in a realistic manner.  I do not mean Realpolitik, balance of power, or Machiavellism – I simply mean evidence-based, rational argumentation, solidly anchored in a comprehensive evaluation of all pertinent factors, including the pre-history of the conflict, breaches of oral agreements, mutual perceptions of bad faith, the interference in the internal affairs of states, the instrumentalization and foreign financing of non-governmental organizations as trojan horses to destabilize governments, the unconstitutional coup d’état against the democratically elected President of Ukraine, Viktor Yanunovych, the denial of the right of internal self-determination to ethnic Russians and Russian mother tongue Ukrainians, the Russophobic legislation of the Ukrainian Parliament, the violence practised against the Donbas Russians, the flouting of the agreements of Minsk 1 and Minsk 2, constant provocations and threats in violation of article 2(4) of the UN Charter, which prohibits not only the use of force, but also the threat thereof.

Notwithstanding the bogus narratives we read in the corporate press, this conflict did not emerge out of the blue, but was the result of cumulative errors and abuses and of an atmosphere of deception, hostility and “hate speech”.

The current political constellation and the toxic atmosphere against anything Russian constitute major obstacles to constructive solutions.  As pre-conditions to any successful negotiation one would expect the capacity of all parties to take a certain distance, demonstrate a measure of mutual respect and an honest effort at approaching the conflict from different perspectives.  If one side pretends that it has a monopoly of the truth and superior moral authority, this augurs badly for any solution.

Groupthink jumps to the eye when one observes the way in which the mainstream media reports on the conflict and the almost total absence of balance, the invisibility of the arguments of the other side, which have been formulated over the years and have been ignored by Western politicians and journalists.  Only a few academics like Professors John Mearsheimer, Francis Boyle, Dan Kovalik, Noam Chomsky, only certain diplomats like Jack Matlock and George F. Kennan seem to have understood what was at issue:  the right of every country to national security and the necessity to build a durable European – and world – security architecture.

The two proposals put forward by Russia in December 2021 would have deserved serious consideration and general debate – instead of being arrogantly put aside by the US and NATO. The rejection of these proposals and the refusal of Ukraine to implement the Minsk Agreements of 2014 and 2015 led directly to today’s tragedy.

An objective third party should have no difficulty in trying to see Russia’s concerns and would not simply perfunctorily repeat State Department and Pentagon narratives.  There is no doubt that assurances were given to Soviet leaders that NATO would not expand eastward.  In fact, there is no reason for the existence of NATO, once the Warsaw Pact was dismantled.

Many observers have already acknowledged that judging by NATO’s post-Cold War practices, it can in no sense be considered a “defensive alliance”.  On the contrary.  NATO itself and NATO members have engaged in bullying and threatening other countries.  NATO countries have committed the crime of aggression, as well as war crimes and crimes against humanity in Yugoslavia, Afghanistan, Iraq, Libya, Somalia, and Syria – in total impunity.  Would this bring NATO within the meaning of article 9 of the Nuremberg Statute concerning “criminal organizations”?

One of the major problems with international law is that there is no effective enforcement mechanism.  Serial violations of the UN Charter have resulted in a loss of authority and credibility – and the emergence of what may be termed “precedents of permissibility”.  Here is a non-exhaustive list of egregious violations of the UN Charter by many countries without any accountability, and with the unfortunate complicity of the corporate media that has downplayed the gravity of the crimes, white-washed the perpetrators, and suppressed the views of critics.  Among them

US aggressions and regime-change attempts against Cuba, Dominical Republic, Haiti, Honduras, Nicaragua, Panama, Venezuela, the “extraordinary rendition” program, systematic torture and indefinite detention in Guantanamo Naval Base

Israel’s multiple aggressions against its Arab neighbours. The occupation and annexation of Palestinian territories, East Jerusalem, the Golan Heights.  Israel’s continued bombardment of Syria, targeted assassination, the use of cluster-bombs and other illegal weapons in the war against Lebanon, etc.

Turkey’s invasion and bombardment of Cyprus in 1974, the killing of thousands of Greek-Cypriots and the expulsion of some 200,000  Greek Cypriots from Northern Cyprus to the South, the continued occupation of 37% of the territory of the island, the refusal to implement judgments of the European Court of Human Rights.

Saudi Arabia’s murderous war against the Yemeni people, its illegal blockade and responsibility for the bombardment of schools, the killing of tens of thousands of civilians, and the starving of the population, resulting in the world’s greatest humanitarian crisis.

Azerbaijan’s aggression, together with Turkey and Libyan and Syrian mercenaries in the September 2020 Blitzkrieg against the Armenians of Nagorno Karabakh, entailing thousands of civilian deaths, the destruction of churches and monasteries and the violation of the right of self determination to the Armenian people.

It is a disgrace that the international community tolerated these crimes of aggression, war crimes and crimes against humanity without demanding accountability from the perpetrators.  This is what I mean when I speak of “precedents of permissibility”.

Indeed, if NATO countries, Israel, Azerbaijan, Saudi Arabia and other states commit crimes in total impunity, does not this situation encourage other states to do the same?  Double-standards in the application of international law and international criminal law undermine the entire system.

That is what Friedrich von Schiller meant in his drama Piccolimini: Das eben ist der Fluch der bösen Tat, dass sie fortzeugend immer Böses muss gebären. That is: the curse of an evil deed, because it continues generating further evils.

Lessons learned:  the multiple violations of the prohibition of the use of force by powerful States without Security Council approval – and this in total impunity — cannot and did not change international law nor could it derogate from article 2(4) of the UN Charter. The general principle of law ex injuria non oritur jus  – “out of a violation of law, no new law can emerge” — prevents the recognition of a new norm allowing aggression. However, such repeated violations  have given rise to  “precedents of permissibility”, because in reality  countries do get away with criminal activity, because the UN lacks appropriate enforcement mechanisms.  The International Criminal Court possesses little authority and credibility and is hardly a deterrent force, because hitherto it has only indicted Africans and it has refused to investigate some of the most egregious aggressions and war crimes committed since the Statute of Rome entered into force in 2002.  Today it may be Russia, but over the past 20 years we have seen aggressions and war crimes committed by NATO countries, notably the US, UK, France, Germany, Turkey, Australia, and by other countries such as Saudi Arabia, Azerbaijan, India, China, Myanmar, etc.  Yes, the ICC should investigate war crimes committed in the Ukrainian war, but it must also investigate and condemn all the prior crimes if it wants to be taken seriously.  If international law means anything, it must be applied uniformly.

Alfred de Zayas is a law professor at the Geneva School of Diplomacy and served as a UN Independent Expert on International Order 2012-18. He is the author of ten books including “Building a Just World Order” Clarity Press, 2021.  

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