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.


War and Armaments: What Interests Underlie International Arms Sales?

War and Armaments:

What Interests Underlie Unprecedented

Levels of International Arms Sales?

                                                                                         By Allen Ferguson, JD, MFA

World War I saw tremendous increases in the types, numbers and cruelty of weapons of war.  This escalation was a matter of grave concern to the international community in 1919 when the allied nations and Germany signed the Versailles Treaty, formally ending the war.  That treaty drew a direct connection between armaments and war: “the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.”  In other words, disarmament is essential to peace and, implicitly, weapons are conducive to war. 

The Versailles Treaty also revealed deep concern about one likely cause of arms escalation and war.  “The manufacture by private enterprise of munitions and implements of war is open to grave objections.  The Council [of the League of Nations] shall advise how the evil effects attendant upon such manufacture can be prevented.”  If the Council of the League ever did advise the nations about how to prevent the evil effects of the private manufacture of arms, either it was bad advice or it was not followed.

Again after World War II, in the UN Charter, the world community adopted the goal of achieving “the least diversion for armaments of the world’s human and economic resources” consistent with international peace and security.  Sixteen years after the Charter was adopted, President John F. Kennedy went much further and proposed to the United Nations a “program for general and complete disarmament,” of both nuclear and conventional weapons “under effective international control,” which would proceed “until it has abolished all armies and all weapons except those needed for internal order and a new United Nations Peace Force.”  Kennedy’s vision of world-wide general and complete disarmament found its way into the Nuclear Non-proliferation Treaty (“NPT”), the primary international agreement aimed at preventing the spread of nuclear weapons.  In addition to prohibiting transfers of nuclear weapons, the NPT requires the signatory nations to “pursue negotiations in good faith” on “nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

Today, even though the NTP and other widely adopted treaties envision world-wide disarmament or both conventional weapons and weapons of mass destruction, we hear almost nothing about that proclaimed goal. Far from moving toward general and complete disarmament, many nations continue to manufacture, buy and sell billions of dollars worth of weapons of war, even in times of relative peace. And the manufacture of these weapons continues to be done by private enterprise, where profit-making rather than peace is the bottom line.

In 2011, the value of world-wide international weapons sales agreements rose to $ 85.3 billion, the highest level since 2004 when the Iraq war was in full swing.  The lion’s share of the 2011 weapons sales, a record-setting $66.3 billion, consisted of sales by the United States — three times as high as U.S. weapons sales in the previous year. Most of the U.S. weapons sales in 2011 went to the Middle East.  About half of the total sales, $33.4 billion, went to a single Middle Eastern nation, Saudi Arabia — one of the least democratic and most repressive nations in the world.  Billions of dollars in U.S. arms sales also went to each of Egypt, Israel, the United Arab Emirates, Oman and Iraq.  These figures refer to government-to -government sales and do not include government-licensed commercial exports by U.S. private companies.  Therefore, the total dollars for U.S. arms sales abroad in 2011 exceeded those cited above. [“Conventional Arms Transfers to Developing Nations, 2004-2011,” August 24, 2012, Congressional Research Service, Richard F. Grimmett et al.]

In addition, the U.S. was and still is militarily involved in Afghanistan and continues to prop up the government there.  It also provides overt and covert military aid and other support to Syrian rebels, while Russia, the second largest arms supplier in the world, supports and supplies the Syrian government.  Meanwhile, Saudi Arabia, by far the largest purchaser of American arms in the Middle East, uses its military might to help Bahrain put down pro-democracy demonstrations; provides military support to fundamentalist Syrian rebels; and sells billions of dollars worth of weapons to Lebanon.

Looking at the picture of the Middle East as a whole, two key facts become unmistakably clear.  First, the region is fraught with sectarian, ethnic, tribal and national tensions that often rise to the level of suicide bombings, armed rebellion, warfare, and other forms of mass homicide.  Second, the weapons-exporting nations, especially the United States, are arming everyone in region to the teeth.  Is this very different from a forest fire fighting unit pouring gasoline on smoldering embers?  What are the stated goals, and the actual motivations, for the enormous, unprecedented levels of arms sales abroad by the U.S.?

One stated policy objective of the U.S. in its international arms sales is “stability.”  What is stability?  Can it be achieved by supplying undemocratic regimes such as those in Saudi Arabia and Egypt with guns, tanks, attack helicopters, jet fighters, etc.?  Does experience bear out the underlying assumption that the more weapons a nation has (or the more weapons are used by other nations to support it), the more stable it will be?

Iraq is a case in point.  Today, after hundreds of billions of dollars worth of weapons were deployed and hundreds of thousands of lives were lost in the Iraq war, and after more billions of dollars worth of arms were sold to Iraq following the war, the U.S. is rushing shipments of arms to that nation and urging the government to pass the weapons on to Sunni tribal fighters battling the Al Qaeda-affiliated militants who have taken over much of Anbar Province.  Have we gone mad?  Did all the weapons used in the Iraq War, and all the weapons sold to Iraq after the war to prop up the post-Saddam governments achieve the stated goal of stability?  Clearly they did not.  Will this new effort by the U.S. to shore up the Iraqi government with even more arms stabilize either Iraq or the region?  That seems more than unlikely.

It appears that in Iraq and throughout the Middle East today, the smoldering tensions along sectarian, tribal, and national lines are flaring up into massive violence due in part to the huge and growing quantities of weapons that the different parties in the region have acquired from arms exporting nations. This increasingly volatile situation creates the very opposite of stability, threatening international instability in and beyond the region.   It is also antithetical to other supposed policy objectives of the U.S. in the Middle East, such as democracy, rule of law and human rights.

If the stated policy objectives are not the true objectives, what are the true motives behind the record levels of arms sales by the United States to a wide range of players in the Middle East and elsewhere?

In his January, 1961 farewell address, President Dwight D. Eisenhower spoke of a new “conjunction of an immense military establishment and a large arms industry” whose “total influence – economic, political, even spiritual – is felt in every city, every State house, every office of the Federal government.”  He warned that “in the councils of government, we must guard against the acquisition of unwarranted influence . . . by the military industrial complex,” because “the potential for the disastrous rise of misplaced power exists and will persist.”

Given the clout in the councils of government wielded by the Defense Department and by arms manufacturers such as Boeing and Lockheed Martin, are we now witnessing “the disastrous rise of misplaced power” that Eisenhower warned about?  Do the true policies behind the tens of billions of dollars in foreign arms sales include furthering the interests of the military industrial complex, namely profits for the arms industry and budgetary dollars for the Defense Department?  Isn’t it time, nearly a hundred years after World War I, to expose and eliminate what the Versailles Treaty referred to as the “evil effects attendant upon the manufacture by private enterprise of munitions and implements of war”?


Back to First Principles: War and Human Rights

Even a victory is a funeral.”

                                                       — Lao Tzu, Tao Te Ching


      The most basic human right is the right to live.  War invariably takes away that right, usually on a massive scale.  Without the right to live, a person’s other rights (free speech, equal protection, freedom of religion, voting rights, and so forth) don’t matter because they don’t exist. With life, on the other hand, all other human rights, including the right to pursue happiness, are possible.  The idea that a person has a right to his or her own life is fundamental — a first principle.  It is enshrined, in one form or another, in the United Nations Charter, the Geneva Conventions, the Universal Declaration of Human Rights, the U.S. Declaration of Independence, the U.S. Constitution, and many other important legal documents.  It is enshrined in the Old Testament, the New Testament, the Tao Te Ching and many other religious texts. It is implicit, at least, in the Hippocratic Oath.  It is inherent in the basic idea, hardwired in our nervous systems, that human life has value, is worth saving, and destroying it is wrong.

Whatever political, religious and other differences people may have, few would dispute the idea that a person’s right to his or her own life is fundamental.  And yet, many of us live in cultures infused with, accepting of, and promoting violence, particularly the massive homicidal violence that is inevitably involved in  war.  Indeed, the violence that war involves often is glorified — in movies, books, magazines, on television, recruiting posters, videogames, etc. — even when similar violence on a smaller scale is recognized as illegal and wrong.  This is not a new phenomenon.  Two thousand years ago, the Roman statesman and philosopher Seneca wrote:


We try to restrain murders and the killing of individuals.  Why are wars and the crime of slaughtering nations full of glory?  Avarice and cruelty know no bounds.  In accordance with decrees of the Senate and orders of the people atrocities are committed and actions forbidden to private citizens are commanded in the name of the state.


The forces that promote and profit from militarism, the arms trade, world dominance and warfare often try to hide war’s true nature by covering it with such labels as “anticipatory self-defense,” “humanitarian intervention,” “collateral damage,” “muscular response,” and “protecting our national interests.”  Peeling away these euphemistic labels, war remains, as Supreme Court Justice Robert Jackson, chief prosecutor for the United States, described it to the Nuremberg Tribunal:  “Any resort to war– to any kind of war – is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property.”

Moreover, while warfare waged in genuine self-defense is regarded as legal, even a war that is purely defensive on the part of the country that has been attacked is, at the same time, aggressive on the part of the country or group doing the attacking.  Therefore, as the ancient Greek historian Plutarch wrote, “There is no war among men which does not originate in fault.  One is kindled by an eager desire for pleasures, another by avarice, another by an overmastering passion for public office or supreme power.”  Plutarch’s words ring true down the centuries.


If life is the most fundamental human right, and war inevitably destroys it on a massive scale, why isn’t starting a war, like committing a murder, an extremely serious crime?  The answer is that it is an extremely serious crime.  In the words of the Nuremberg Tribunal, “To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”   The London Agreement, in which the United States, Soviet Russia, Britain and France established the Nuremberg Tribunal, stated that preparing for or waging a war of aggression was a “Crime Against Peace.”  Other key international law documents including the Kellogg-Briand Pact of 1928 and the UN Charter also establish that starting a war is illegal.  Thus the UN Charter provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”  The Charter makes an exception for the use of force in self-defense, but only in the event of an armed attack, and under some circumstances a use of force approved by the Security Council.


If starting a war has been illegal under international law since 1928, or 1946 at the latest, and numerous wars have been fought since, why haven’t the individuals and nations responsible for initiating the wars been subjected to legal proceedings for doing so?  The short answer is that some of them have been, but not very many and not very often.  Immediately after World War II, Nazi leaders at Nuremberg and Japanese leaders at Tokyo were prosecuted, convicted and sentenced to long prison terms or to death for committing the crime of waging aggressive war, a Crime Against Peace.


In addition, the International Court of Justice (“World Court”) has ruled in a number of cases involving the use of armed force by one country against another, and has strongly affirmed the illegality of doing so.  In one such case, Nicaragua v. United States, the World Court specifically addressed the relationship between war and human rights. The court found that the U.S. had violated the non-use of force principle of international law by mining Nicaragua’s harbors, attacking oil facilities, attacking a navy base, and arming and training the “Contras,” a rebel group fighting to overthrow the Nicaraguan government.  The court addressed the question whether Nicaragua’s alleged human rights violations could justify the U.S. attacking that country.  The court found that “while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. . . . The protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or . . . with the training, arming and equipping of the contras.”


It is important for the people and policymakers of nations to recognize that the initiation of war, with its inevitable deprivation of fundamental human rights, is illegal and wrong.  It is also important, when considering any international use of force — even force used in self-defense or approved by the Security Council — to carefully weigh the destruction of human rights, particularly the right to life, that will result, against the benefits reasonably expected to be achieved.  Is there such a thing as “humanitarian intervention?” Can killing ever stop killing?  Will it in a particular case?  How can we know?

Allen Ferguson, JD, MFA