Letters from Vienna #153
Letter to an Austrian Friend #3
Ukraine and the Rule of Law III
Dear K,
You argue that the limitation on NATO’s eastward expansion was never ratified by a treaty and thus, by implication, legitimate. I pointed out to you in the café that a verbal agreement carries as much weight as a written one. What I should have said, and what I neglected to do (it was late, I was tired etc.) was that the Minsk Accords, which were written agreements, weren’t honored either. In fact: we now know they were simply a trick to enable the creation of a massive, NATO proxy army, which could, once equipped with nuclear weapons, threaten the very existence of Russia.
“In early February 1990,” the LA Times reported, “U.S. leaders made the Soviets an offer. According to transcripts of meetings in Moscow on Feb. 9, then-Secretary of State James Baker suggested that in exchange for cooperation on Germany, U.S. could make “iron-clad guarantees” that NATO would not expand “one inch eastward.” Less than a week later, Soviet President Mikhail Gorbachev agreed to begin reunification talks. No formal deal was struck, but from all the evidence, the quid pro quo was clear: Gorbachev acceded to Germany’s western alignment and the U.S. would limit NATO’s expansion.”[1]
For some, NATO expansion isn’t such a big deal but one mustn’t forget that “in Russian historical memory, there were five major invasions when ‘the West’ sent its military to ‘destroy’ Russia: the Polish occupation of the Kremlin in the early 17th century, the Swedish attack in the early 18th century, the Napoleon invasion of 1812, and two wars with Germany in the first half of the 20th century. In each case, the very existence of the Russian state was threatened. In this way, suspicion and fear of the West developed in the Russian mentality, even before the Bolshevik revolution in 1917.”[2]
Furthermore: NATO, which was modeled on the Waffen SS, has proven extremely aggressive and has committed crime after crime against humanity; it has proven to be far removed from a mere “defensive alliance” but rather a tool of the nefarious, kleptocratic Globalists. In addition to that Daniele Ganser has demonstrated beyond any reasonable doubt that NATO lies at the heart of Gladio but I am repeating myself; I mentioned this deplorable fact in the café.
Whereas America cannot honestly argue that its wars in Afghanistan, Iraq, Syria, Libya etc. etc. etc. were “wars of defense” (according to the rule of international law only two kinds of war are legitimate: wars sanctioned by the UN or wars of defense) the Russians can well do so, as the recent attacks against Russian territory and the Kremlin itself have shown.
Tamás Hoffmann writes: “The right of self-defence in cases of inter-state violence is the most frequently invoked norm in the post-1945 international legal order. Since the existence of a Security Council mandate can usually be established quite easily, states typically attempt to legitimize their armed actions by invoking self-defence.”
“Article 51 of the UN Charter provides the right of self-defence as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
“This regulation thus makes the exercise of self-defence conditional upon the occurrence of an armed attack, within the framework established by customary international law, and requires that self-defence measures be reported immediately to the Security Council.”
“In his speech announcing the attack on Ukraine, President Putin explicitly invoked the right of self-defence and its full transcript was attached to the Russian Federation’s notification to the Security Council, by which it reported the taking of self-defence measures under Article 51 of the Charter.”
“Likewise, the Russian Federation has also qualified the armed intervention as an act of self-defence in the proceedings before the International Court of Justice and has also attached President Putin’s speech to its written submission.”
“Although the wording of Article 51 of the Charter seems to suggest that self-defence is only lawful if an armed attack has already occurred, some states and international legal scholars support the broader interpretation that self-defence measures can be taken to avert an imminent external armed attack.”
“However, the acceptability of this interpretation in international law is highly debated, as illustrated by the failure of the international community to reach a consensus on this issue during the UN reform process. The report of the High-Level Panel commissioned by Secretary-General Kofi Annan stated that ‘a threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.’”
“Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.”
“Still, no reference to the concept of an imminent attack was included in the final declaration adopted by UN member states, not least because a significant number of states, particularly developing countries, consistently reject approaches that broaden the potential application of use of force and a significant number of continental legal scholars take a contrary position.”
“While the narrow concept of preventive self-defence has some support in the international community, the broader interpretation, which would give the authority to exercise self-defence against distant threats, is almost unanimously rejected. Following the terrorist attacks of September 11 2001, the United States of America invoked an extremely broad mandate to deter external threats. The 2002 US National Security Strategy stated that: “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack…....’ From this it concluded that: We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries….... The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.””
“However, this approach is not supported by state practice and is rejected by the vast majority of international lawyers.”
“From Russian official statements, it seems that the Russian Federation launched the armed intervention to prevent a distant threat from Ukraine. President Putin’s speech on 24 February made several references to threats against Russia emanating from Ukraine’s territory, but did not mention any actual examples of imminent armed attacks. The speech focused on NATO’s expansion plans rather than on threats to Ukraine. Putin said that for Russia:
“... it is a matter of life and death, a matter of our historical future as a nation. This is not an exaggeration; this is a fact. It is not only a very real threat to our interests but to the very existence of our state and to its sovereignty. It is the red line which we have spoken about on numerous occasions. They have crossed it.”
“In his speech on 9 May, the Russian President returned to this issue again and made it clear that ‘Russia launched a pre-emptive strike at the aggression. It was a forced, timely and the only correct decision. A decision by a sovereign, strong and independent country.’ This approach is supported by the fact that one of the declared strategic goals of the Russian Federation in attacking Ukraine was to demilitarise the country. Russia, however, has not substantiated its claim that NATO’s eastward enlargement would pose a real threat to its national security.”[3]
La Lok Yip, Assistant Professor, College of Law, Hamad Bin Khalifa University writes:
“From NATO’s expansion and collective self-defence by the so-called Donetsk People’s Republic and Luhansk People’s Republic to the alleged humiliation and attacks on ethnic Russians, the Kremlin has presented a range of arguments to defend its position on the war.”
“These are among a growing set of diplomatic postures adopted by states that their opponents dismiss as pretexts. Unsurprisingly, Russia has cited the pretext that the United States used to invade Iraq in 2003 – the possession of non-existent weapons of mass destruction – to criticise Washington. Separately, the Group of Seven (G7) nations have accused China of using the recent visit of US Speaker Nancy Pelosi to Taiwan as a pretext for provocative military activities near the self-governing island.”
“If “pretext” is to be treated simply as a synonym for “justification”, then international law is clear: The presence of an adversary military alliance on Russia’s border is not an armed attack that could justify self-defence by force under jus contra bellum. Likewise, the separatist regions of Ukraine do not satisfy the criteria of statehood for Russia to assert the right to join any collective self-defence. Humanitarian intervention by force to protect civilians without UN Security Council authorisation remains illegal. That is according to Russia’s own judgement on NATO’s bombing of Belgrade in 1999.”
“However, the fact that these are not legal justifications for the use of force does not mean that they bear no legal significance. On the contrary, they point to the need for a harder look at allegations of violation of other branches of international law that just do not receive the same level of attention as jus contra bellum and international humanitarian law.”
“For instance, there is a debate on whether the verbal promises made by officials of NATO states in the early 1990s not to expand the alliance eastward represent legally binding obligations that have since been breached. Allegations of violations of human rights law against Russian minorities in Ukraine have also been made.”
“Likewise, the American invasion of Iraq on false claims does not change the fact that Iraq’s compliance record with disarmament obligations had also been poor. Similarly, for those adopting a one-China policy, foreign official visits to Taiwan may violate the legal norm against non-interference in Beijing’s internal affairs.”
“While they do not justify the use of military force, dismissing these arguments as “pretexts” ends up muting other branches of international law on human rights, disarmament and diplomatic arrangements that form the context for the use of force.”
“Such an approach betrays a vision that privileges events over the tendencies that lead up to those events. We risk allowing legal issues to build up until the eventual outbreak of war, when the brutality of conflict compels us to look to jus contra bellum and international humanitarian law for urgent protection. By then, there are other challenges to relying on just these strands of international law.”
“When leading powers are involved – as is the case in Ukraine and was in Iraq – a potential Security Council deadlock weakens the possibility of enforcement of the law. Once a war starts, it takes on a life of its own and rational compliance with the law becomes even harder.”
“The challenges, even with the best of intentions, in complying with international humanitarian law in a hot war can be seen in the recent row over Amnesty International’s criticism of Ukraine’s conduct in the current conflict.”
“Of paramount importance, therefore, is the prevention of war – itself a duty under human rights law. As the war in Ukraine shows us, the tragic results of ignoring the duty to prevent war are maximum hostility between warring parties, resistance to any negotiated peace settlement and unpredictable, potentially catastrophic escalation.”[4]
I appreciate that legal texts are exceptionally dry and dull, for which you’ll hopefully forgive me, while I fully accept your argument that more reading and research is needed…
[1] https://www.latimes.com/opinion/op-ed/la-oe-shifrinson-russia-us-nato-deal--20160530-snap-story.html
[2] https://www.cairn.info/revue-politique-etrangere-2009-5-page-107.htm
[3] War or Peace? - International Legal Issues concerning the Use of Force in the Russia-Ukraine Conflict Hungarian journal of Legal Studies, Vol. 63 (2022), No. 3., 206-235.
NATO was always about forever wars around the world for forever power of Davos and empire.