Ukraine War, April 5, 2022 (I): After Bucha, Zelensky expresses the outrage of the world over Russian crimes against humanity; clarifications regarding Russia’s seat on Security Council, and “crimes against humanity” v. “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) Stéphanie Maupas (La Haye), “La méthode d’exécution des crimes en Ukraine déterminera leur qualification; Le terme de « génocide » utilisé par le président ukrainien, Volodymyr Zelensky, fait l’objet d’un débat parmi les experts du droit international, Le !onde, le 5 avril 2022 (l11h57, mis à jour à 11h58);

Commentary

The United Nations and Russian membership on the Security Council

In his intervention before the U.N. Security Council today, Ukrainian President Wolodymyr Zelensky gave eloquent expression to the utter outrage felt by leaders and citizens of the civilized countries of the world.

However, his exhortation to expel Russia from the Security Council, and his characterization of Russian war crimes as genocide require comment and clarification.

First, Russia could only be removed from its permanent seat on the Security Council by an amendment to the U.N. Charter. Such an amendment would require the approval of two-thirds of the General Assembly and two-thirds of the Security Council, including the affirmative vote of all five permanent members of the Security Council. Consequently, Russia with its veto could block any amendment that would remove it from the Security Council.

Article 108 of the U.N. Charter provides as follows:

Amendments

Article 108

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

While Zelensky’s sentiment that if the Security Council can’t deal with the “genocide” Russia is carrying out in Ukraine it should disband itself is wholly understandable, it is best understood as an expression of enormous outrage that the U.N. and the world have not acted to effectively halt Russia’s invasion and atrocities in Ukraine.

The outrage is justified, as the armchair warriors in NATO and other countries fail to take effective action to stop Putin.

However, the United Nations should not be dissolved. It is the only institution that humanity has to govern the relations of states in accordance with fundamental norms of international law, the most important of which are embodied in the guiding principles of the Charter.

After two world wars in the first half of the 20th century, the founding of the United Nations and its Charter in 1945 was one of the great achievements of mankind throughout its long and dark history. 400 years after the Thirty Years War (1618-1648), it represented and represents the institutional expression of mankind’s longstanding aspiration for international peace and security.

The U.N. is not perfect, and indeed has many defects including the continued existence of the right of veto by the five permanent members of the Security Council.

Nonetheless, like the U.S. Constitution, it is a living constitution whose goals may be progressively realized over time. At some point in the future, it may become possible to amend the Charter to eliminate the veto of the permanent members of the Security Council.

In the meantime, the United Nations as it is is what we have. It remains the world’s best instrument for building and maintaining an international community of civilized nations.

Zelensky’s charge of Russian “genocide” in Ukraine

We have no words that can fully express humanity’s outrage at the atrocities Vladimir Putin and Russia have been committing in Ukraine.

Ukrainian President Wolodymyr Zelensky visited Bucha yesterday, where the evidence of Russian atrocities and the utter depravity, the utter evil, of Russia’s leader and its army was on full view.

It is natural in such a situation that one responds with the words, however inadequate, that express the deepest outrage at the horrors one has witnessed and is witnessing.

That word in our historical experience is “genocide”, a term used during and after World War II to describe Hitler’s attempt to exterminate the Jews  in Europe.

The 1948 Convention on Genocide defined the international crime of genocide with greater specificity. Both Russia and Ukraine are parties to the Convention, and indeed Ukraine has brought charges under it in a complaint filed with the International Court of Justice (ICJ) in the Hague.

The ICJ has issued an Order of Provisional Measures of interim protection in the case.

The crime of genocide is succinctly defined in Article 6 of the Rome Statute of the International Criminal Court (ICC) as follows:

Article 6 Genocide
For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Nonetheless, it is important that decision makers and commentators not get lost in an argument over whether Russia is committing genocide in Ukraine. That debate can wait for later, as the evidence accumulates and the lawyers debate over the definitions of genocide in international law and the Genocide Convention. Part of this debate will take place before the International Court of Justice.

What cannot be disputed by leaders and citizens of civilized countries is the fact that recent and ongoing Russian atrocities constitute horrendous “crimes against humanity” as clearly defined in international law and the Rome Statute of the International Criminal Court (ICC).

For the definition of “crimes against humanity” in the Rome Statute of the ICC, see,

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

The civilized countries of the world should not be distracted by a debate over whether Russian atrocities constitute genocide.  Instead, they should concentrate their energies on taking effective action to halt the Russian crimes against humanity that are clearly underway.

Moreover, they must overcome their fear of Putin, and use limited military force to stop him if that is what is required.

The Trenchant Observer

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