Ukraine War, April 3, 2022: Ceasefire terms must not only defend Ukraine but also uphold U.N. Charter and international law; Putin has taken on the whole world, and all of humanity; Putin must be tried for crime of aggression, war crimes, crimes against humanity, and possibly genocide

Developing

Due to rapidly-breaking developments and in order to facilitate readers’ access to the latest dispatches, we are publishing this article as it is being written. please check back for updates and additions.

To see a list of previous articles, enter “Ukraine” in the Search Box on the upper right, on The Trenchant Observer web site, and you will see a list in chronological order.

Dispatches

1) Paul Sonne, Shane Harris, Michael Birnbaum and Souad Mekhennet, “Zelensky, entering new stage of war, faces political test; As the war grinds on and peace talks continue, the Ukrainian president confronts new challenges,” Washington Post, April 3, 2022 (6:00 a.m. EDT);

2) Thomas L. Friedman, “Ukraine Is the First Real World War,” New York Times,
April 3, 2022;

3) Garry Kasparov, “Biden Told the Truth: Putin Has to Go; Ukraine’s sacrifice will be in vain if the West’s moral confusion gives Russia a chance to regroup,” Wall Street Journal, April 3, 2022 (12:17 pm ET);

4) Clemens Wergin, “Putins Ziel? Die physische Vernichtung der ukrainischen Nation, Die Welt, den 3. April 2022;

5) Ben Riley-Smith, Joe Barnes, and Campbell MacDiarmid, “Allies want Vladimir Putin to face justice for war atrocities in Ukraine; Boris Johnson condemns murder of hundreds by Russian troops and promises help in bringing charges at The Hague, The Telegraph, April 3, 2022 (10:00 pm);

Commentary

Ceasefire terms must not only defend Ukraine but also uphold U.N. Charter and international law

Vladimir Putin’s and Russia’s war of aggression against Ukraine has constituted a frontal assault on the United Nations Charter, international law, and the entire international legal order established to prevent resort to the use of force to resolve international disputes.

In reaching a ceasefire and withdrawal agreement with Russia, not only Ukraine but also the nations and leaders of the civilized world need to be steadfast in upholding the primacy of the United Nations Charter and international law.

They should not be tempted to make concessions to Russia that undermine the primacy of these principles, whatever provisional measures they may be forced to accept to bring the mass killing of civilians and the destruction of towns and cities in Ukraine to a halt.

They should not accept any terms that undermine the primacy of the United Nations Charter and international law, and should not pressure Ukraine to accept such terms.

Specifically, they should not threaten Ukraine with the reduction of or the slackening of the pace of delivery of military assistance, or limits on the nature of the weapons and weapons systems they provide, in order to pressure Ukraine to make any concessions or accede to any Russian demands that undercut the primacy of the U.N. Charter and international law.

That means, for example, that recognition of Russian sovereignty over the Crimea can not be agreed to as a part of any such agreement.

It means that territorial gains made by Russia in the current war can not be recognized.

It means, further, that the Donetsk and Luhansk People’s Republics, installed by Russia through its 2014 invasion of the Donbas, can not be recognized by Ukraine, or indeed by any other state operating within the framework of the United Nations Charter and international law.

Some of these issues can be deferred for future negotiations, such as those proposed by Ukraine for resolution of the status of the Crimea within a period of 15 years.

No ceasefire and withdrawal agreement can be accepted that undercuts the provisions of the Law of the Sea Convention and the freedom of international navigation.

Moreover, no ceasefire and withdrawal terms can be accepted that would limit the liability of Putin or Russian military officials and soldiers for the commission of the crime of aggression, war crimes, crimes against humanity, or crimes of genocide.

The issue of war reparations cannot be negotiated so long as Russian troops continue to threaten the territorial integrity or political independence of  Ukraine.

The Russian attack on February 24, 2022 was an attack on the U.N. Charter and the international legal order, as well as Ukraine.

Consequently, the  primacy of the U.N. Charter and international law must be steadfastly upheld by both Ukraine and the West in any negotiated agreement for a ceasefire and the withdrawal of Russian troops from Ukraine.

Vladimir Putin will not like these terms. Nonetheless, the world must make clear to him and Russia that they have hit the brick wall of tbe U.N. Charter and international law.

The West and the civilized nations of the world must now ensure that it is these institutions, and not Russian barbarism, that will prevail.

This they must do even if at some point such a commitment requires the use of limited military force.

Putin has taken on the whole world, and all of humanity

Putin’s atrocities will rank with those of Stalin and Hitler.

How many generations will it take for Russians to reclaim their honor?

The evidence of Russian war crimes, crimes against humanity, and genocide is becoming increasingly clear, as the Russians retreat from the Kiev region and other areas. The horrific nature of these crimes, committed by the military of a regime which represents pure evil, demands, requires, a response from all of humanity.

Friedman, in a pathbreaking article, illuminates the ways in which in our networked world all the citizens of the planet are involved in what he terms “the first real world war”.

Billions of people, in every corner of the world, can watch on their smart phones, computers, and televisions scenes from the war, including scenes of unimaginable destruction and horror. These include scenes of unimaginable human depravity on the part of the Russians.

And these billions of people, and the governments that represent them, can, and will, respond.

For a while, Putin may be able to keep these images off Russian TV. For a while, his propaganda narrative may maintain a veil of deception over the eyes of the Russian people.

But over time the truth will come out, and even the Russian people will see what their soldiers, their sons, have done in their name.

They will face questions of individual moral responsibility for the actions of their government and their soldiers, just as Germans faced similar questions in 1945.

Russians, for the rest of their lives, at some subconscious level, will live in shame. Many will have to face more direct questions of individual guilt.

Humanity will respond to these atrocities.

Unlike the situation in 1945, we now have institutions which can focus and channel these responses. We have the United Nations which through the General Assembly can act in the name of humanity. We have the International Criminal Court (ICC) which in the name of humanity can prosecute and punish war criminals. We now have well-defined international crimes for which war criminals can be held to account.

The greatest crime is the crime of aggression, which Putin has committed by invading Ukraine. “Crime of aggression” is the modern term for the “crimes against peace” for which the major Nazi war criminals were tried at Nuremberg, and found guilty.

The ICC if it is able, or any country exercising universal jurisdiction if it is not, should immediately proceed to the indictment of Vladimir Putin for committing the crime of aggression, and other international crimes. His trial, in absentia, should commence at the earliest possible date.

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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