Ukraine War, March 8, 2022: Limited no-fly zone; Crimes against Humanity, War Crimes, the Crime of Aggression

Draft

After the Russian invasions of Ukraine in 2014, former Solidarity leader and former Polish President Lech Walensa, commenting on Putin, said:

“He broke agreements, contracts, guarantees. The world cannot just leave it like this. If something like this happens, only force is left.

“How can we win, if he is boxing, and we are playing chess?

“This kind of fighting is from another epoch, which is doomed to be defeated. I do not doubt it that freedom and democracy will win.
Lech Walensa

Definition of Crimes Against Humanity, War Crimes, and the Crime of Aggression

Artcle 7 of the Rome Statute of the International Criminal Court defines a “Crime against Humanity” as follows:

Article 7
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:
(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

War Crimes

War Crimes are defined in Article 8, and include in part the following:

War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(fn 2) Paragraphs 2 (e) (xiii) to 2 (e) (xv) were amended by resolution RC/Res.5 of 11 June 2010 (adding paragraphs 2 (e) (xiii) to 2 (e) (xv)).

(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

Crime of aggression

Article 8 bis defines the Crime of Aggression, which roughly corresponds to “Crimes Against Peace” in the Nuremberg Charter and the Nuremberg Judgment.

Article 8 bis (fn3)
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein…
fn3 Inserted by resolution RC/Res.6 of 11 June 2010.

Dispatches

1) Carolyn Vakik, “Foreign policy experts call for ‘limited no-fly zone’ over Ukraine, The Hill, March 8, 2022 (8:46 AM EST).

2) Christopher Wilson, “Foreign policy experts call for ‘limited no-fly zone’ over Ukraine,” Yahoo!News, March 8, 2022 (6:25 AM).

The proposal, which is a thoughtful analysis of an option also proposed here, involves the limited use of force against Russian forces to prevent war crimes and crimes against humanity–initially to protect civilians in agreed-upon “humanitarian corridors” for fleeing civilians and the resupply of besieged cities.

Significantly, the letter is signed by Gen. (Ret.) Philip Breedlove, Former Supreme Allied Commander Europe (during the 2014 Russian invasion of the Crimea and the Eastern Ukraine), and by William Taylor, Former U.S. Ambassador to Ukraine. The full list of the signatories is found at the link to the letter above.

3) “Open Letter Calling for Limited No-Fly Zone,” Politico, March 8, 2022.

4) Lexi Lomas, “Pentagon: Polish proposal to send MiG fighters to US air base not ‘tenable’,” The Hill, March 8, 2022 (06:44 PM EST):

5) Julian Borger and Patrick Wintour, “US dismisses Polish plan to provide fighter jets to be sent to Ukraine; Poles believed to have 28 Soviet-era jets they hope the US will replace with newer planes – but Pentagon says plan ‘not tenable’,” The Guardiean, March 8, 2022 (23.38 GMT);

6) Warren P. Strobel and Michael R. Gordon,”Biden Administration Altered Rules for Sharing Intelligence With Ukraine; After lawmakers expressed concerns about how much information was being provided to Kyiv, the White House modified its guidance to Pentagon, spy agencie,” Wall Street Journal, March 8, 2022 (12:33 pm ET);

7) Thomas L. Friedman, “The Cancellation of Mother Russia Is Underway,” New York Times, March 6, 2022;

8) Michael R. Gordon, “How Removing a Handful of Screws Allowed the Pentagon to Deliver Stingers to Ukraine; Taking out classified gear enabled the military to send the antiaircraft missiles after the Russian invasion,” Wall street Journal, March 8, 2022 (updated 11:24 pm ET).

Comment: The “Chilren Editors” at the Wall Street online edition editors don’t know how to distinguish significant news from the latest news. This article, which offers keen insights in the red tape and bureaucratic procedures which have delayed the timely supply of weapons to Ukraine, is buried as a bullet point under another headline. The Journal really ought to put some experienced editors on the job of laying out the digital edition of the newspaper.

Commentaryw

To be provided

Themes

1. The need for Congress to force Biden to form a bipartisan War Cabinet, with a Nuclear Decisions Executive Committee (as suggested here) to advise and support Biden on decisions related to nuclear weapons or a nuclear escalatory spiral.

Biden’s weak foreign policy team, the one that gave us the disastrous Afghanistan withdrawal decision, and the deterrence system of finely graduated sanctions that didn’t work, must be bolstered with senior, experienced officials (e.g., secretaries of Defense, State, etc.), from both parties.

Biden on his own can not get us through a Cuban Missile Crisis, if it comes to that. His policy of anticipatory capitulation to Putin’s nuclear threats is fatally flawed, as will become evident if Putin continues with commission of crimes against humanity on a massive scale, uses chemical weapons, or detonates a tactical nuclear weapon to get his way.

2. 70 years of nuclear strategy and doctrine must give the U.S. more options than simple anticipatory capitulation.

3, The economic sanctions may work in the long run, but in the long run all of the Ukrainians may be dead.

4. Biden must be forced by Congress to expand his foreign policy team beyond his buddies and protegés. The phenomena of “Groupthink” has been rampant, from the Afghanistan decision to today’s knee-jerk rejection of the proposal of foreign policy experts and officials to implement a limited no-fly zone, to protect “humanitarian corridors” and civilian populations from Russian crimes against humanity.

What role is Susan Rice playing behind the scenes, if any? If she isn’t why isn’t she? She should be moved to the foreign policy team. Biden should have pushed for her to be confirmed as Secretary of State. He didn’t, because he was afraid of a fight with Republicans over Benghazi. No stomach for a fight then. No stomach for a fight with Putin, now.

5. Biden doesn’t get it. The world has been irrecocably changed. A full-scale war is raging in the heart of Europe, and it is not possible that NATO countries will not be drawn into it. They are already in it, furnishing weapons and equipment and advice to Ukraine.

Biden’s fear of doing anything that Putin might perceive as engaging in the conflict is a great handicap for NATO and the West. E.g., transfer of jets to Ukraine, calling out Putin’s war crimes.

6. The situation is similar to that in Europe before the Munich Pact in 1938. France and Britain did not come to the defense of Czechoslovakia. Had they done so, it appears that Hitler’s military would have backed off.

7. What will the West do if Putin threatens to use nuclear weapons unless the West lifts its auctions against Russia? We should all remember that Japan attacked Pearl Harbor, in part, because it was suffering greatly under U.S. sanctions, and oil sanctions in particular.

8. With a bipartisan War Cabinet, perhaps the government can develop some strategies to address the question, “With Russia, how will it all end?”

9. The first order of business is for our leaders to wake up and fully realize the dire and extremely dangerous situation we are in. Then we need a reformulated cabinet to usher us through this existential crisis.

Bipartisanship is essential. Partsanship must once again stop at the water’s edge. In an existential struggle to defend civilization, politics must be put aside.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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