APRIL 7, 2022
ex injuria non oritur jus
Photo credit: United Nations (UN)
“Getting away with it” does not render blatant aggression any less criminal. Aggression remains a supreme crime, as Chief Prosecutor Robert Jackson said in his opening statement at the Nuremberg Trials in 1945. Getting away with a crime does not and cannot legalize any crime, it only manifests the inadequacy of the administration of criminal justice and of the political institutions responsible for the enforcement of the “rule of law”.
Surely the US aggressions against Vietnam, Laos and Cambodia 1963-75, the aggression of NATO countries against Yugoslavia in 1999, against Afghanistan in the 20-year war 2001-2021, the assault on Iraq by the “coalition of the willing” in 2003, the military interventions in Libya and Syria since 2011, Saudi Arabia’s on-going genocidal war against Yemen, Azerbaijan’s Blitzkrieg against the hapless Armenians of Nagorno Karabakh, Russia’s “special military operation”/waragainst Ukraine since February 2022 constitute very serious crimes of aggression that call for an objective investigation by the International Criminal Court and prosecution of those responsible for giving the orders and for implementing them. Aggressive war is not only illegal – it is madness, the ultima irratio.
The prevailing impunity of the powerful does not legalize their crimes. However, “precedents of impunity” since 1945 weaken the fabric of international law and undermine the authority and credibility of the United Nations as a peace-making and peace-ensuring organization. Again and again the United Nations has failed to silence the drums of war and stop impending aggressions. It famously failed to stop the brazen assault on Iraq on 20 March 2003 in which the 43 countries of the “coalition of the willing” rebelled against the UN Charter. It actually facilitated the aggression against Libya in 2011through the adoption of SC resolution 1973. In 2005 the General Assembly invented the concept of “responsibility to protect”, initially sold and marketed to the world as a proactive mechanism to protect hostage civilian populations when their governments failed to protect them. Actually, R2P proved to be a particularly perverse scam, as we know from its abuse in Libya and elsewhere, a harmless sounding scheme concoted to accommodate the attempt by some powerful governments to circumvent the prohibition of the use of force contained in article 2 (4) of the UN Charter.
While article 2(4) prohibits both the use of force and the threat of the use of force, the UN Security Council and General Assembly have failed to take any concrete action to condemn war-mongering and sabre-rattling. Although article 20 of the International Covenant on Civil and Political Rights specifically prohibits propaganda for war and incitement to racial hatred and violence, the Human Rights Committee has never done much to identify the multiple violators, primarily the powerful States that have hijacked human rights and weaponized them against geopolitical rivals for purposes of making enforced regime change appear somehow legitimate.
It is important to emphasize that, notwithstanding the media fanfare about R2P, the hypocritical practice of invoking “humanitarian intervention” as a pretext to topple foreign governments has not generated and cannot generate any valid legal precedent — ex injuria non oritur jus— because, as the general principle of law dictates, a right cannot arise from a wrong, breaking international law cannot engender a new “customary international law”. Accordingly, military incursions without approval of the UN Security Council are neither legal nor “legitimate”. Yet, we observe how bogus arguments are wielded to construct a perception of “legitimacy”. These are intellectually dishonest games – games that cost tens of thousands of human lives.
Of course, the rule of law and international order have been wounded again and again — but they are not killed. Punishment still awaits the offenders whenever the International Criminal Court is prepared to take the Rome Statute seriously and to prosecute the larger-than-life criminals and not just vanquished enemies or ousted politicians. Neither “exceptionalism” nor “legal black holes” are compatible with the international human rights treaty regime. Aggression remains the ultimate crime, because it leads to war crimes and crimes against humanity. Yet, the merchants of death in the military-industrial-financial complex love their wars and their profits.
Perceptions of legitimacy
When it is impossible to justify some action in terms of legality, politicians sometimes turn to the more ambiguous, less juridical term: “ legitimacy”. For example during the Yugoslav and Iraq wars many “legal experts” and some compromised professors of international law contended that while those military operations were not strictu sensu legal, because they had not been approved by the United Nations, they were “legitimate”, and in this context they invoked the obsolete concept of a “just war”, which essentially was disavowed with the adoption of the UN Charter. In the post-1945 international order, no use of force is legal unless approved by the Security Council, and by virtueof the “supremacy clause” (article 103 of the UN Charter) the Charter prohibition trumps all other treaties and arrangements. Notwithstanding international law doctrine, there are many State practices that systematically violate the UN Charter, human rights conventions and customary international law. Hitherto there is no palpable consequences for the violators.
Another illegal practice is the imposition of unilateral coercive measures, which has been condemned numerous times by the United Nations General Assembly, most recently in resolution 76/161 of December 2021 and by the Human Rights Council in its resolution 46/5 of March 2021. The US embargo against Cuba has been condemned in 29 separate resolutions by the General Assembly, most recently in resolution 75/289 in June 2021, and yet the embargo and sanctions persist. The damage caused to the Cuban economy over the past sixty years is phenomenal, but no one in the western mainstream media cares to inform readers about the UN Secretary General’s annual reports documenting the adverse human rights impacts of the sanctions and financial blockade.
It is true that only a handful of States impose such sanctions, but these are the very powerful and rich states, and thus far they have gotten away with it. Has this created a new norm in international law? Has this modified customary international law in any way? No. Ex injuria non oritur jus. As evidenced by the voting record of the vast majority of States members of the United Nations in the General Assembly and Human Rights Council, such measures are deemed to be contrary to the UN Charter. All that this shows is that the UN lacks an effective mechanism for the enforcement of international law and its prohibitions.
Of course, we live in a world of fake news and fake law, supported by certain governments and the media. As various UN reports document, economic sanctions cause the death of tens of thousands of children and adults from malnutrition, lack of medicines, lack of medical equipment. This justifies classifying such sanctions in the category of crimes against humanity for purposes of article 7 of the Statute of Rome, even if the International Criminal Court, which thus far has been in the service of the powerful, has not indicted any person in connection with illegal unilateral coercive measures.
An additional problem is the on-going corruption of language and concepts through the “information war” conducted by intelligence services and echoed by the corporate media, which seldom reports on unilateral coercive measures, and when they do they try to convey the impression that sanctions are perfectly justified and legal. Seldom do you read in the pages of the New York Times or Washington Post that these sanctions contravene a host of international norms, including the principle of State sovereignty, the self-determination of peoples, the prohibition in interfering in the internal affairs of states, the principle of freedom of commerce and freedom of navigation. Therefore, the public at large tends to concede sanctions a presumption of legitimacy.
As shown above, thanks to the steady brainwashing through the corporate media, the imperial practice of imposing “unilateral coercive measures” and the idea of “humanitarian intervention” have attained a measure of acceptance, although they violate the UN Charter and general principles of law. When we look at the so-called humanitarian interventions in Yugoslavia, Iraq, Libya and Syria, where tens of thousands of human beings were killed, we realize that these were classical geopolitical crimes, even if they were sold to the public with the jargon of human rights. Their purpose were strictly geopolitical and economic, aiming at undemocratic “regime change.”
Even more perverse than the human and material damage visited on the targeted countries, is the resulting weakening of the authority and credibility of international law and of the international institutions charged with monitoring and enforcing it. These “humanitarian interventions”/wars have engendered serious global repercussions owing to the way Western powers have attempted to give the impression that a valid international legal precedent was being set. Needless to say, government lawyers in the West, together with Turkey and Saudi Arabia, understood full well that the violation of Syria’s sovereignty with warplanes and cruise missiles entailed gross violations of international law, but the lawyers knew how to camouflage these aggressions as “reprisals” for non-existent chemical attacks and other false flag operations.
Here we are confronted not only with “fake news” used to justify acts of aggression, but with “fake law”, pretending that violating international law would actually change international law. Thus, a growing number of Western authors and journalists claimed that, by going ahead and striking Syrian territory illegally, customary international law itself was being changed. In the West the attacks on Syrian government targets in 2015-21 were often described as ‘Grotian moments’ – events which marked “a fundamental change in the existing international system” which some Western pundits claimed sparked a major reformation of customary international law when pertaining to crimes of aggression. This argument was based on the premise that, since the Western powers had taken alleged humanitarian abuses in the form of chemical attacks as pretexts to strike Syria, attacking other countries on similar grounds should henceforth be considered legal. The countries intervening in Syria without approval of the Security Council were consciously violating international law, but they knew that although their actions fell within the Kampala definition of aggression, adopted by the Assembly of State parties to the Rome Statute in 2010, the likelihood that the International Criminal Court would ever take up the matter was minimal.
As A.B. Abrams writes in his book “World War in Syria” , although the radical premise that the West could so fundamentally alter international law unilaterally was and is entirely contrary to international law itself, this still findsconsiderable support across the Western media. The idea that when the Western powers commit a crime, that action somehow evolves into the international norm and therefore a new part of customary law, reminds me of a 1972 statement by U.S. President Nixon who claimed following the Watergate scandal : “Well, when the president does it that means that it is not illegal.” In this context “the president” could be replaced by the West and the subjects by the rest of the world. Thus the narrative was advanced that if Western actions were illegal, it could only be because customary international law was obsolete and needed to be reformed to make them the “new normal”. The West itself, like “the president,” could not be in the wrong – an argument which reflects an ideology of Western exceptionalism.
Bottom line: There is no way that the world at large will accept the proposition that the Europeans and Americans are the ones who set the rules, and that the West now has every legal right to attack them if it could claim a moral pretext to do so. This has a highly destabilising impact on the global order and we see the corruption of the perception of law in the mainstream narrative concerning the war in Ukraine. Certainly the Chinese, the Russians, the Indians, the Pakistanis, the Indonesians, the South Africans, the Venezuelans etc. will reject Western hubris and insist on full participation in the drafting and adoption of new international law rules. Bottom line, the only “world constitution” is the United Nations Charter, which lays out a “rules based international order”, if the States would only care to implement it.+
 Hugo Grotius (1583-1645), Dutch scholar considered the “father of international law”.
 see A.B. Abrams, World War in Syria, Clarity Press, 2021.
 Dewar, Helen, ‘President Isn’t Above the Law, Nixon Insists,’ Washington Post, June 5, 1977
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.