Feb 24, 2022 will go down in the history of the early 21st century as a day in infamy. Russian President Vladimir Putin’s unprovoked and flagrant invasion of another independent, sovereign nation constitutes a violent disregard of Ukraine’s territorial integrity and threatens the Westphalian system of nation-states in place since 1648.
It is probably the greatest threat to world peace since the end of World War II and the establishment of the United Nations in 1945. The brazenness of Putin’s (above) militarist egregious folly, resulting in war in the heart of Europe in the 21st century, rendered billions across the globe incredulous and speechless. I have been numbed for days.
That this is very much Putin’s war is not in doubt. Over two decades, his control over Russia has made him more powerful and dangerous than any Tzar or even Joseph Stalin. As a totalitarian leader par excellence, he exercises absolute power.
He has crushed dissent, poisoned his opponents, taken over the apparatus of the state, its secret services (as befitting a former KGB officer) and its mighty armed forces.
Russia was responsible for bringing down MH17 belonging to MAS while flying over Ukraine in July 2014; hence Malaysia’s participation in the trial against the Russian shooters in the Hague.
Putin wanted Donald Trump to win in the elections of 2016 and 2020, and Russian interference in the US election process has been independently confirmed by many sources.
Putin has been a serial law-breaker for decades, in Russia and beyond. Most worryingly, Putin’s hand is firmly on the nuclear button, as he unashamedly proclaimed within days of the Ukraine invasion.
There have been ample commentaries in the first week since the invasion discussing the political, economic and military causes and consequences of this war. Anyone wishing to be informed of these matters has adequate material online to be so educated.
Rather than traversing on the ground already well covered, I wish to reflect on the legal consequences of the war, and how international law in the last 100 years has substantially developed to impose legal liability on states and its leaders who commit wars of aggression, war crimes and genocide.
The Kellogg-Briand Pact
Despite being the bloodiest century with two World Wars and countless smaller wars, the 20th century outlawed the use of force as an instrument of national policy as early as 1928 when the Kellogg-Briand or Paris Pact was signed by the major western powers, and subsequently endorsed by numerous countries.
The General Treaty for the Renunciation of War (as it was formally known) was binding on 63 nations, including Adolf Hitler’s Germany at the outbreak of war in 1939. In Article 1 of this pact, the contracting states condemned “recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another”. The International Military Tribunal (IMT) which tried 22 major war criminals of the German Reich in Nuremberg in 1945-1946 declared:
“After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing.”
Hitler
History records that despite the Pact of Paris and other binding treaties, Hitler was determined to achieving his declared ambition of expanding Germany’s frontiers. Austria was the first victim. It was invaded and seized through the Anschluss in March 1938.
Hitler’s troops occupied Czechoslovakia in March 1939. Prior to the invasion of Poland, later in that year, Hitler remarked in a speech:
“Even if war should break out in the West, the destruction of Poland shall be the primary objective. I shall give a propagandist cause for starting the war - never mind whether it is plausible or not. The victor shall not be asked later on whether we hold the truth or not. In starting and making a war, not the Right is what matters, but Victory…….”.
That truth is the first casualty in war is again demonstrated by the blatant lies uttered by Putin in justifying the Ukrainian invasion -here again, Putin is emulating Hitler.
Germany's invasion of Poland on Sept 1, 1939 led to the outbreak of World War II. Despite signing a non-aggression pact with USSR in August 1939, on 22nd June 1941, Germany - without any declaration of war - invaded Soviet territory.
Likewise, Japan's invasion of Malaya and the bombing of Pearl Harbour on Dec 7, 1941.
Nuremberg
The victorious Allied leaders decided to try 22 German major war criminals, led by Goering, before the IMT at Nuremberg with crimes against peace by the planning, preparation, initiation and waging of wars of aggression, with war crimes and with crimes against humanity.
These were charges of the utmost gravity, but so were their crimes. Twelve of them were sentenced to death. Reproduced below are three passages of the Nuremberg judgment, which have formed part of customary international law for some 75 years, and remain relevant today:
“To initiate a war of aggression, therefore is not an international crime: it is the supreme international crime differing only from other crimes in that it contains within itself the accumulated evil of the whole.”
“It was submitted that international law is concerned with the action of sovereign states, and provides no punishment for individuals: and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the tribunal, both these submissions must be rejected… Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
“… individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state is in authorising action moves outside its competence under international law”.
United Nations
While plans were afoot relating to the establishment of the IMT, the San Francisco Founding Conference began on April 25, 1945 to deliberate on the drafting of the Charter of the United Nations.
In two months, experts from across the globe completed their drafting, with the signing of the Charter on June 26. The UN Charter came into force on Oct 24, 1945.
The discovery of concentration camps, the holocaust and the devastating effects of the worst war in human history costing over 50 million lives, heavily influenced the language of the Charter. None more so than the stirring words in the Preamble:
“We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”
Customary international law was entrenched in the Charter. As to the threat or use of force, Article 2(4) states:
“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 fundamental and predominant significance of Article 2(4) has been recognised by leading scholars of international law, variously described as “the cornerstone of peace in the Charter”; “the heart of the UN Charter” and “the basic rule of contemporary public international law”.
Hence, the position since 1945 cannot be clearer. Finally, in 1994, Russia and Ukraine, along with the United States and the United Kingdom signed the Budapest Memorandum on Security Assurances, reaffirming “their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine”.
Thus, the legal case against Russia is iron-clad. It has brazenly violated the supreme law in international relations: invading another state.
Criminal proceedings must be instituted before the International Court of Justice and International Criminal Court against Russia, Putin and his military commanders.
The World’s response
Putin and Russia must be condemned by the whole world for the illegal invasion of Ukraine, which has already resulted in the heavy bombing of cities with the loss of thousands of innocent civilians.
It is wholly unacceptable for such wanton killings and destruction to take place in contemporary times in violation of all standards of decency.
Nations and individuals ought not to be coloured or influenced by ideology, personal or national interest or any other factor in refraining from publicly condemning these brutal measures by a Great Power bullying a smaller nation.
Care must be taken not to conflate other incidents and episodes of similar nature. What is at issue today is simple, plain, obvious and clear: the Russian invasion of Ukraine.
Nothing more and nothing else. Their action must be unreservedly condemned by all right-thinking people and nations.
Against this background, it was disappointing that although 141 countries voted in the United Nations General Assembly in support of the resolution condemning the invasion, five voted against and 35 abstained.
The four countries that supported Russia were Belarus, North Korea, Eritrea and Syria. Among the abstentions were China, India, Pakistan, Iran and Laos. Obviously, their national interest motivated their voting.
These 40 nations represent a significant proportion of the human population, and their refusal to condemn illegality calls into question the desirability of the treaties, charters and pacts entered into in the aftermath of World War II, intended to prevent a repeat of such atrocities.
Further, it throws into doubt their commitment to a rules-based international order.
Reading Putin’s mind and predicting Russia’s next course of action are ventures in speculation, hardly fruitful. The bravery and unity of the Ukrainians have surprised the invading troops. We must salute them.
So has the outstanding inspirational leadership of Ukrainian President Volodymyr Zelenskiy: cometh the hour, cometh the man.
Putin’s dominance is so over-powering that his military and economic advisers would not have dared to warn him about the consequences of his war before the invasion.
The sanctions, removal from SWIFT, the targeting of their Central Bank, the ban from sports and cultural events will slowly have an effect.
But a cornered tiger is lethal; when pushed to the corner, Putin will resort to greater brutality and violence.
One hopes posterity will regard Ukraine as Putin’s Waterloo. - Mkini
TOMMY THOMAS is former attorney-general. He criticised the invasion of Iraq in March 2003 by the United States and United Kingdom in a series of articles published then. He has consistently condemned all foreign invasions under whatever circumstances since 1945.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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