International Law and the Ukraine
INTERNATIONAL LAW AND THE UKRAINE
By Allen Ferguson, JD, MFA.
President Obama and Secretary of State Kerry have accused Russia of violating international law by occupying and annexing Crimea. Specifically, the U.S. and others accuse Russia of illegal aggression, intervention, and violation of Ukraine’s sovereignty. While Russia likely has violated international law in Crimea and elsewhere in the Ukraine, a key question that American leaders and mainstream media seem intent on not asking is whether Russia’s violations took place in the context of Western nations’ similar violations of international law. This question breaks down into two others. First, have nations of the West committed similar violations elsewhere in the world which, while not excusing Russia’s actions, have weakened international law to the point where states (at least powerful ones) and their leaders are not held accountable for such violations? Second, did Western nations violate international law by their actions in the Ukraine that contributed to the events that led to Crimean secession?
Have Western States’ Past Violations of International Law Facilitated Violations by Russia?
Immediately after World War II, the United States and its allies led the world in establishing that a nation’s initiation of war is illegal, both civilly and criminally. Under the United Nations Charter, adopted in San Francisco in 1945, a state’s military action against another state is legal only if it is taken either in self-defense in the event of an armed attack, or sanctioned by the Security Council. The International Court of Justice (“World Court”) has recognized this general principle of non-use of force among nations as a universally applicable rule of customary international law, extending even beyond the scope of the UN Charter.
The same year the Charter was adopted, the United States, Soviet Russia, the United Kingdom and France entered into the London Agreement, which established the Nuremberg Tribunal to prosecute top Nazi leaders for three broad types of crimes: war crimes, crimes against humanity, and crimes against peace. The treaty provided that preparing for, starting or waging aggressive war was a crime against peace. In its Final Judgment, the Nuremberg Tribunal held that initiating aggressive war is not only an international crime but “the supreme international crime,” for it “contains within itself the accumulated evil of the whole.” The Tribunal convicted Nazi leaders for committing Crimes Against Peace as well as other international crimes, and sentenced some of them to death. Similar convictions and sentences for committing Crimes Against Peace by waging aggressive war were handed down against Japanese leaders by the multinational Tokyo Tribunal, which the U.S. also played a leading role in creating.
While in the first half of the last century, the United States led the world in establishing as a fundamental principle of international law that starting a war (as distinguished from using force in genuine self-defense) is illegal, since that time, it has undermined that principle by attacking, invading and/or occupying numerous nations. These include Guatemala, Haiti, the Dominican Republic, Laos, Vietnam, Cambodia, Panama, Cuba, Libya, Grenada, Nicaragua, Sudan, Somalia, Serbia, Afghanistan and Iraq. Other Western states have sometimes joined in, or have engaged in military interventions of their own — as too has Russia. Many of these military interventions clearly did not constitute genuine self-defense and did violate the non-use of force principle in international law -– including the U.S.- led war in Iraq.
In the 2003 – 2011 Iraq War, the United States, with the United Kingdom and other “coalition of the willing” members attacked, invaded and occupied another state, not in genuine self-defense and without Security Council approval. The War therefore constituted a prima facie violation of the non-use of force principle in international law by the coalition states. At the same time, there is probable cause to believe that it also involved the crime of waging aggressive war by the leaders of those states. The military intervention in Iraq resulted in over 100,000 civilian deaths, conservatively estimated. Nevertheless, so far at least, the coalition countries and their leaders have not been held legally accountable.
From the Iraq example it is clear that, at least in some cases, Western states and their leaders have not been held accountable for even the most blatant and homicidal violations of international law. In stark contrast to the clear articulation and strict application of the non-use of force principle immediately after World War II, international law has been weakened today to the point where powerful nations and their leaders, citing no greater justification than their “national interests,” can be expected to violate it with impunity.
In this context, it is not merely hypocritical for the U.S. President and Secretary of State to accuse Russia of aggression and violation international law in the Ukraine. In addition to the obvious hypocrisy the fact of Western powers ignoring and violating international law with impunity, especially as exemplified by the war in Iraq, sends a message to the world that international law has no real force and effect and need not be obeyed. Russia, it seems, has heard that message. Others, no doubt, have been listening too.
Did Western States Lead the Way in Violating International Law in the Ukraine?
In 1986, the World Court, in the case Nicaragua v. United States, found that various covert actions taken by the U.S. against the leftist Sandanista government violated not only the non-use of force rule, but also another rule of customary international law — the non-intervention principle. That principle, according to the UN General Assembly’s 1970 “Friendly Relations Declaration,” prohibits a State not only from engaging in military intervention in another state, but also from using coercive economic or political measures that interfere with the sovereign rights of another state. Further, it forbids an outside state to “organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State.” The World Court held that the U.S. violated the non-intervention principle both by taking military action against Nicaragua, such as mining its harbors, and by financing, arming, training, equipping and otherwise supporting a rebel group, “the Contras,” who were fighting to overthrow the Nicaraguan government.
Did Western states, directly or indirectly, violate the non-intervention principle of international law in the Ukraine? Specifically, did they enable, sponsor or support the civil unrest that resulted in lethal violence in the streets and the overthrow of the democratically elected, pro-Russian government? Were Ukrainian people solely responsible for these events, or were outside influences at work? I do not pretend to know the answer to that question, but certain facts that might point to an answer have been largely ignored by the mainstream media and political leaders in the U.S.
First, there is the intercepted telephone conversation in early February, 2014 (before the coup), between U.S. Assistant Secretary of State Victoria Nuland and U.S. ambassador to the Ukraine, Geoffrey Pyatt. That phone call drew a great deal of media attention because of Ms. Newland’s use of an expletive to dismiss the European Union’s role in plotting the future of the Ukraine. But the more important part of the conversation involved these two officials of the Obama administration discussing who should lead the future government and who should be left out of it. Ms. Nuland stated her view that certain opposition leaders including “Klitsch” (Vitali Klitschko, a former heavyweight boxing champion) should remain out of the government, while “Yats,” (Arseniy Yatsenyuk) “is the guy who’s got the economic experience, the governing experience. He’s the guy . . .” In conformity with Ms. Nuland’s expressed wishes, Yats indeed became “the guy,” installed as interim prime minister immediately after the democratically elected president, Viktor Yanukovych, was ousted and fled the country.
Second, who was responsible for the deadly violence in the protests that immediately preceded Yanukovych’s guard abandoning him, Yanukovych himself fleeing the country, and a new government being installed? The eruption of the protests into homicidal violence has been portrayed in the media as consisting of police firing on protesters. Another intercepted phone conversation casts serious doubt on the hypothesis that the police were responsible. According to Democracy Now (March 6, 2014) in a phone conversation between Urmas Paet, foreign minister of Estonia (a NATO member) and European Union policy chief Catherine Ashton, Paet told Ashton “All the evidence shows” that the killing was caused by “the same snipers killing people from both sides.” Paet states that a medical doctor involved reported “it is the same handwriting, the same type of bullets” that killed people from both sides.” Paet also said, “it’s really disturbing that now the new coalition [does not] want to investigate what exactly happened, so that there is now stronger and stronger understanding that behind the snipers, it was not Yanukovych, but it was somebody from the new coalition.” Who exactly were the snipers? By whom were they organized, directed and paid? What specific instructions were they given and by whom? Where did they come from, and where did they go after the multiple homicides were committed? If the evidence points to outside governments instigating or supporting some of these events, this in turn would point to their culpability for violating the the international law principle of non-intervention.
Third, what role, if any, has a U.S. government-sponsored, non-profit organization played in the events in the Ukraine? The website of the National Endowment for Democracy (NED) states that the organization is funded by appropriations from the U.S. Congress and is dedicated to the growth and strengthening of democratic institutions around the world. It supports more than 1,000 projects in more than 90 countries. One of those countries is the Ukraine. The website shows that the NED, with millions of U.S. taxpayer dollars, supports 65 projects in the Ukraine and that many of those projects are related to voters and elections. Former CIA senior analyst Ray McGovern, who spent a decade dealing with Russian foreign policy, states that the NED now does what the CIA used to do in provoking or taking over popular uprisings, and has at least been a catalyst for the political events in Ukraine,as it has been, McGovern says, for political events elsewhere in Eastern Europe. (Democracy Now, March 3, 2003). If that is true, does responsibility for the Ukrainian uprising rest ultimately with the U.S. government, acting through the NED? If so, it takes only a short logical step to conclude that the U.S. in this additional way violated the international law principle of non-intervention by one state in the affairs of another.
Each of the above questions needs to be thoroughly and fairly investigated in order to determine what role, if any, Western governments have played and are playing in instigating, influencing, taking over or supporting the recent and continuing political changes in the Ukraine. Only then can it be determined whether those governments have violated international law by intervening in the affairs of a sovereign state and violating its sovereignty. If they have, it would be the latest in a long line of such interventions, which weaken international law and thereby induce other nations to violate it when they find it in their national interests to do so.