Scott Ritter, in part one of a two-part series, lays out international law regarding the crime of aggression and how it relates to Russia’s invasion of Ukraine.
“To initiate a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulative evil of the whole.” – Judges of the International Military Tribunal at the Nuremberg Trials.
By Scott Ritter
Special to Consortium News
When it comes to the legal use of force between states, it is considered unimpeachable fact that in accordance with the intent of the United Nations Charter to ban all conflict, there are only two acceptable exceptions. One is an enforcement action to maintain international peace and security authorized by a Security Council resolution passed under Chapter VII of the Charter, which permits the use of force.
The other is the inherent right of individual and collective self-defense, as enshrined in Article 51 of the Charter, which reads as follows:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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-defense 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.”
A plain-language reading of Article 51 makes it clear that the trigger necessary for invocation of the right of self-defense is the occurrence of an actual armed attack — the notion of an open-ended threat to security does not, by itself, suffice.
Prior to the adoption of the U.N. Charter, the customary international law interpretation of the role of pre-emption as applied to the principle of self-defense was Hugo Grotius, the 17th century Dutch legal scholar who, in his book De Jure Belli Ac Pacis (“On the Law of War and Peace”) declared that “war in defense of life is permissible only when the danger is immediate and certain, not when it is merely assumed,” adding that “the danger must be immediate and imminent in point in time.”
Grotius formed the core of the so-called “Caroline Standard” of 1842, (named after a U.S. ship of that name which had been attacked by the British navy after aiding Canadian rebels back in 1837) drafted by then U.S. Secretary of State Daniel Webster. It supported the right of pre-emption or anticipatory self-defense only under extreme circumstances and within clearly defined boundaries.
“Undoubtedly,” Webster wrote, “it is just, that while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to eases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’”
Until the adoption of the U.N. Charter in 1945, Webster’s criteria, borrowing heavily from Grotius, had become Black Letter Law regarding anticipatory action in international law. However, once the United Nations was established and the U.N. Charter sanctified as international law, the concept of pre-emption or anticipatory self defense lost favor in customary international law.
George Ball, deputy under-secretary of state for President John F. Kennedy, made the following famous remark about the possibility of a U.S. attack on Cuba in response to the deployment of Soviet nuclear-armed missiles on Cuban territory in 1962. As it was being discussed in the White House Situation Room, Ball said: “A course of action where we strike without warning is like Pearl Harbor…It’s…it’s the kind of conduct that’s such that one might expect of the Soviet Union. It is not conduct that one expects of the United States.”
The Ball standard guided the administration of President Ronald Reagan when, in 1983, Israel bombed the Osirak nuclear reactor in Iraq. Israel claimed that “in removing this terrible nuclear threat to its existence, Israel was only exercising its legitimate right of self-defense within the meaning of this term in international law and as preserved under the U.N. Charter.”
The Reagan administration ultimately disagreed, with U.S. Ambassador to the U.N. Jeane Kirkparick saying, “our judgement that Israeli actions violated the Charter of the United Nations is based on the conviction that Israel failed to exhaust peaceful means for the resolution of this dispute.” Kirkpatrick, however, noted that President Reagan had opined that “Israel might have sincerely believed it was a defensive move.”
The American argument dealt with the process of the Israeli action, namely the fact that Israel had not brought the problem before the Security Council as required by Article 51. In this, the U.S. drew upon the judgement of Sir Humphrey Waldock, the head of the International Court of Justice, who in his 1952 book, The Regulation of the Use of Force by Individual States in International Law, noted:
“The Charter obliges Members to submit to the Council or Assembly any dispute dangerous to peace which they cannot settle. Members have therefore an imperative duty to invoke the jurisdiction of the United Nations whenever a grave menace to their security develops carrying the probability of armed attack.”
After Iraq’s invasion of Kuwait in August 1990, the United States was able to assemble a diverse international coalition by citing not only Article 51, which provided a somewhat weak case for intervention based upon self-defense and collective security, but also Security Council resolution 678 passed under Chapter VII of the U.N. Charter. That authorized the use of force to evict Iraq from Kuwait. Regardless of where one stood on the merits of that conflict, the fact is, from the standpoint of international law, the legality underpinning the U.S. and coalition use of force was rock solid.
The aftermath of Operation Desert Storm, the U.S.-led military campaign to liberate Kuwait, however, lacked such clarity. While Kuwait was liberated, the Iraqi government was still in place. Since Resolution 678 did not authorize regime change, the continued existence of Iraqi President Saddam Hussein’s government posed a political problem for the United States, whose president, George H. W. Bush, had likened Saddam Hussein in an October 1990 speech to the Middle East equivalent of Adolf Hitler, requiring Nuremburg-like retribution.
US Misuse of Ceasefire Resolution
The Security Council, under pressure from the United States, passed a ceasefire resolution, 687, under Chapter VII, which linked the lifting of economic sanctions imposed on Iraq for invading Kuwait to the verified disarmament of Iraqi weapons of mass destruction (WMD) under the auspices of U.N. weapons inspectors.
The U.N. disarmament process was troubled by two disparate undercurrents. The first was the fact the Iraqi government was an unwilling participant in the disarmament process, actively hiding material, weapons, and documentation pertaining to banned missile, chemical, biological, and nuclear programs from the inspectors.
This active program of concealment constituted a de facto material breach of the ceasefire resolution, creating a prima facia case for the resumption of military action for the purpose of compelling Iraq into compliance.
The second was the reality that the United States, rather than using the disarmament process authorized by the Security Council to rid Iraq of WMD, was instead using the sanctions triggered by continued Iraqi noncompliance to create the conditions inside Iraq to remove Saddam from power.
The weapons inspection process was only useful to the United States if it furthered that singular objective. By the fall of 1998, inspections had become inconvenient to U.S. Iraq policy.
In a move carefully coordinated between the U.N. inspection team and the U.S. government, an inspection-based confrontation was orchestrated between U.N. inspectors and the Iraqi government, which was then used as an excuse to withdraw the U.N. inspectors from Iraq. The U.S. government, citing the threat posed by Iraqi WMD in an inspection-free environment, launched a three-day aerial bombardment of Iraq known as Operation Desert Fox.
Neither the U.S. nor the U.K. (the two nations involved in Operation Desert Fox) had received authority from the U.N. Security Council prior to taking military action. There is no specific legal authority that would allow either the U.S. or Britain to act in a unilateral fashion regarding the enforcement of a Chapter VII resolution such as 687. While the Security Council would obviously be able to authorize compelled compliance (i.e., the use of force), no single nation nor collective possesses unilateral enforcement authority, making Operation Desert Fox an illegal act of aggression under international law.
The U.S. has sought to get around this legality by crafting a case for military action under the rubric of the “right of reprisal”, with the act of Iraq being in material breach of its obligations under resolution 687 serving as the justification for reprisal. To argue what by most accounts is a tenuous case, however, the strike in question would have to be limited to targets that could be exclusively defined as being related to weapons of mass destruction (WMD).
The fact that the U.S. and U.K. struck a plethora of sites, none of which were related to the manufacture or storage of WMD, undermines the legitimacy of any justification under a claim of reprisal, making Operation Desert Fox an unauthorized (i.e., illegal) use of military force.
One of the purposes alleged to justify an action under the “right of reprisal” was the notion of deterrence, namely that by carrying out a limited reprisal in response to a documented material breach of a Chapter VII resolution, the U.S. and UK would be deterring Iraq from any future acts of non-compliance.
One of the key aspects of deterrence in defense of the law, however, is the need for the act upon which deterrence is derived being itself legitimate. Given that Operation Desert Fox was, prima facia, an illegal act, the deterrence value generated by the action was nil.
The inability to craft a valid deterrence policy produced the opposite of what had been intended — it emboldened Iraq to defy the will of the Security Council under the misguided conclusion that its constituent members were impotent to act against it.
In 2003 the administration of President George W. Bush proved the Iraqis wrong.
Having failed to implement a viable doctrine of military deterrence when dealing with Iraq’s unfulfilled obligations under Security Council resolutions, the U.S. crafted a new approach for resolving the Iraqi problem once and for all—the doctrine of pre-emption.
This doctrine was first articulated by President Bush in his June 2002 address to West Point, where he declared that while “in some cases deterrence still applied, new threats required new thinking … if we wait for threats to fully materialize, we will have waited too long.”
On Aug. 26, 2002 Vice President Dick Cheney specifically linked Bush’s embryonic doctrine of pre-emption to Iraq, declaring at a convention for the Veterans of Foreign Wars that:
“What we must not do in the face of a mortal threat is to give in to wishful thinking or willful blindness…deliverable weapons of mass destruction in the hands of a terror network or murderous dictator or the two working together constitutes as grave a threat as can be imagined. The risks of inaction are far greater than the risks of action.”
In early September 2002 the Bush administration published its National Security Strategy (NSS), which certified as official U.S. policy the principle of pre-emption. It noted that the Cold War-era doctrines of containment and deterrence no longer worked when dealing with a post-9/11 threat matrix which included rogue states and non-state terrorists.
“It has taken almost a decade for us to comprehend the true nature of this new threat,” the NSS stated.
“Given the goals of the rogue states and terrorists, the U.S. can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker…and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons do not permit that option. We cannot let our enemies strike first.”
The NSS went on to offer a legal argument for this new doctrine. “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. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat — most often a visible mobilization of armies, navies and air forces preparing to attack.”
According to the NSS, the concept of immediacy as a pre-condition for the legitimate employment of anticipatory self-defense had to be adapted to the new kinds of threats that had emerged. “The greater the threat,” the NSS declared, “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. To forestall or prevent such hostile acts, the United States will, if necessary, act pre-emptively.”
The new Bush Doctrine of pre-emption was not well received by legal scholars and international relations specialists. As William Galston, at the time a professor of public policy for the University of Maryland, observed in an article published on Sept. 3, 2002,
“A global strategy based on the new Bush doctrine of preemption means the end of the system of international institutions, laws, and norms that we have worked to build for more than half a century. What is at stake is nothing less than a fundamental shift in America’s place in the world. Rather than continuing to serve as first among equals in the postwar international system, the United States would act as a law unto itself, creating new rules of international engagement without the consent of other nations.”
Galston’s words were echoed by then U.N. Secretary General Kofi Annan, who shortly after the NSS was published declared that the notion of pre-emptive self-defense would lead to a breakdown in international order. For any military action against Iraq to have legitimacy under the U.N. Charter, Annan believed, there needed to be a new Security Council resolution which specifically authorized a military response.
The U.S. and U.K. did, in fact, seek to secure such a resolution in early 2003, but failed. As such, the U.S.-led invasion of Iraq, launched in March 2003 under the sole authority of the U.S. doctrine of pre-emption, “was not in conformity with the U.N. charter,” according to Annan, who added “From our point of view and from the charter point of view it was illegal.”
As the de facto first test case of the new American doctrine of preemption, the U.S. would have benefitted from having been proven right in the major threat assumptions which underpinned the need for urgency. History has shown that the major threat issue — that of Iraqi WMD, was fundamentally flawed, derived as it were from a manufactured case for war based on fabricated intelligence.
Likewise, the so-called nexus between Iraq’s WMD and the al Qaeda terrorists who perpetrated the terrorist attacks of 9/11 turned out to be equally as illusory. The doctrine of pre-emption carries with it a high standard of proof; about Iraq, this standard was not remotely met, making the 2003 invasion of Iraq illegal under even the most liberal application of the doctrine.
Concerns that any attempt to carve a doctrine of pre-emption out of the four corners of international law defined by Article 51 of the U.N. Charter would result in the creation of new rules of international engagement, and that that would result in the breakdown of international order were realized on Feb. 24.
That is when Russian President Vladimir Putin, citing Article 51 as his authority, ordered what he called a “special military operation” against Ukraine for the ostensible purpose of eliminating neo-Nazi affiliated military formations accused of carrying out acts of genocide against the Russian-speaking population of the Donbass, and for dismantling a Ukrainian military Russia believed served as a de facto proxy of the NATO military alliance.
Putin laid out a detailed case for pre-emption, detailing the threat that NATO’s eastward expansion posed to Russia, as well as Ukraine’s ongoing military operations against the Russian-speaking people of the Donbass.
“[T]he showdown between Russia and these forces,” Putin said, “cannot be avoided. It is only a matter of time. They are getting ready and waiting for the right moment. Moreover, they went as far as aspire to acquire nuclear weapons. We will not let this happen.” NATO and Ukraine, Putin declared,
“did not leave us [Russia] any other option for defending Russia and our people, other than the one we are forced to use today. In these circumstances, we have to take bold and immediate action. The people’s republics of Donbass have asked Russia for help. In this context, in accordance with Article 51 of the U.N. Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.”
Putin’s case for invading Ukraine has, not surprisingly, been widely rejected in the West. “Russia’s invasion of Ukraine,” Amnesty International declared, “is a manifest violation of the United Nations Charter and an act of aggression that is a crime under international law. Russia is in clear breach of its international obligations. Its actions are blatantly against the rules and principles on which the United Nations was founded.”
John B. Bellinger III, an American lawyer who served as legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration, has argued that Putin’s Article 51 claim “has no support in fact or law.”
While Bellinger notes that Article 51 does not “impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations,” he hastens to note that Ukraine had not committed an armed attack against Russia or threatened to do so.
Bellinger is dismissive of Russia’s claims to the contrary, noting that “Even if Russia could show that Ukraine had committed or planned to commit attacks on Russians in the Ukrainian regions of Donetsk and Luhansk, Article 51 would not permit an action in collective self-defense, because Donetsk and Luhansk are not U.N. member states.”
While the notion that a lawyer who served in an American presidential administration which crafted the original doctrine of pre-emption used to justify the U.S.-led invasion of Iraq would now be arguing against the application of that very same doctrine by another state would seem hypocritical, hypocrisy alone does not invalidate Bellinger’s underlying arguments against Russia, or the claims put forward by its president.
Unfortunately for Bellinger and those who share his legal opinion, a previous U.S. presidential administration, that of William Jefferson Clinton, had previously crafted a novel legal theory based upon the right to anticipatory collective self-defense under Article 51 of the U.N. Charter.
The Clinton administration argued that this right was properly exercised under “normative expectation that permits anticipatory collective self-defense actions by regional security or self-defense organizations where the organization is not entirely dominated by a single member.” NATO, ignoring the obvious reality that it was, in fact, dominated by the United States, claimed such a status.
While the credibility of the NATO claim of “anticipatory collective self-defense” collapsed when it transpired that its characterization of the Kosovo crisis as a humanitarian disaster infused with elements of genocide that created, not only a moral justification for intervention, but a moral necessity, turned out to be little more than a covert provocation carried out by the C.I.A. for the sole purpose of creating the conditions for NATO military intervention.
While one may be able to mount a legal challenge to Russia’s contention that its joint operation with Russia’s newly recognized independent nations of Lugansk and Donetsk constitutes a “regional security or self-defense organization” as regards “anticipatory collective self-defense actions” under Article 51, there can be no doubt as to the legitimacy of Russia’s contention that the Russian-speaking population of the Donbass had been subjected to a brutal eight-year-long bombardment that had killed thousands of people.
Moreover, Russia claims to have documentary proof that the Ukrainian Army was preparing for a massive military incursion into the Donbass which was pre-empted by the Russian-led “special military operation.” [OSCE figures show an increase of government shelling of the area in the days before Russia moved in.]
Finally, Russia has articulated claims about Ukraine’s intent regarding nuclear weapons, and in particular efforts to manufacture a so-called “dirty bomb”, which have yet to be proven or disproven. [Ukrainian President Volodymyr Zelensky made a reference to seeking a nuclear weapon in February at the Munich Security Conference.]
The bottom line is that Russia has set forth a cognizable claim under the doctrine of anticipatory collective self defense, devised originally by the U.S. and NATO, as it applies to Article 51 which is predicated on fact, not fiction.
While it might be in vogue for people, organizations, and governments in the West to embrace the knee-jerk conclusion that Russia’s military intervention constitutes a wanton violation of the United Nations Charter and, as such, constitutes an illegal war of aggression, the uncomfortable truth is that, of all the claims made regarding the legality of pre-emption under Article 51 of the United Nations Charter, Russia’s justification for invading Ukraine is on solid legal ground.
Coming in Part 2: Russia, Ukraine, and the Law of War: War And War Crimes.
Scott Ritter is a former U.S. Marine Corps intelligence officer who served in the former Soviet Union implementing arms control treaties, in the Persian Gulf during Operation Desert Storm and in Iraq overseeing the disarmament of WMD.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Boiling this down, what I get from Mr. Ritter is that since the U.S. has committed war crimes and has weakened, diluted and/or ignored laws of war, then the acts of Tsar Vladimir cannot possibly be criminal, because the (sadly undeniable) hypocrisy and provocation of the U.S. excuses anything he might do. I guess one good hypocrisy deserves another.
“…the deployment of Soviet nuclear-armed missiles on Cuban territory in 1962….”
What is seldom mentioned in this regard, (understandably perhaps to preserve the magic Kennedy legacy) is that the crisis was provoked by years of US attempts to overthrow the Castro government, a Soviet client state, culminating in the Bay of Pigs fiasco. Kennedy knew it had been a mistake, felt betrayed by his advisors, but he was young and new in the job and had been misled by his generals who told him his predecessor General Eisenhower had already approved the plan. How could he, a youngster, a mere “loot”, doubt what the great general had approved.
And Kennedy and his brother Bobby were very grateful that the Soviet leadership offered him an honorable way out, with a secret quid pro quo for removing US missiles in Turkey, Russia would remove the missiles from Cuba. And Kennedy’s PR could sell the idea of the handomse young president having faced down the Soviet machine.
FWIW and this may have no connection to the analysis at hand, the Ukraine that Russia attacked is not the Ukraine that we(?)errr… Victoria Nuland/Biden et al couped in 2014.
From what I understood of Robert Parry’s set of articles 2014-2017 on the coup, its aftermath and the resistance back then it seems that resistance included, I think, members of the Ukrainian army and police and citizens.
Over the last 8 years, the right wing groups that Nuland/Biden et al allied with to execute the coup mushroomed in the army and Ukrainian life to change the composition of the army, police, government and culture of Ukraine to where those institutions flipped from being sympathetic to Russia to being against Russia when they entered Ukraine.
There may still be sympathizers in the Ukraine military/police towards the victims in the east but they’ve been overshadowed by the right wing which victimized Russian speaking people and other minorities like the Romani people and probably the rest of the panoply that white supremacists are out to get.
So this restructuring of Ukraine to be run/influenced by a white supremacists leaning power structure was not the Ukraine that we couped.
If that’s correct it may be irrelevant to what Scott Ritter has analyzed here but maybe it is and it’s not generally talked about.
Thanks for your work Scott!
It’s much appreciated.
Wait, so after all this excellent exposition of the law’s history, Mr. Ritter ends up justifying the legality of Putin’s war based on BS legal crackpotism invented by the Clinton admin to justify their Serbia war crimes? Wow, I’m pretty sure this reasoning would fail any UN test, as we indeed saw a few weeks ago when the nation’s of the world voted against on this. I expected better.
Thanks to Scott Ritter for this analysis of international law regarding Ukraine which should be far more widely known.
This one weird Neocon trick can rally millions to risk getting nuked!
Here how it works. The MSM’s trusted sources all seem to follow the same ‘ISW’ [Institute for the Study of War] analysis on Ukraine. The analysis is all grim for the Russians. They can be beat is the analysis. (Receipts included)
BBC – The BBC coverage is the go to for many, including other MSM.
The BBC credits ISW as its source for maps and analysis.
The ISW (Institute for the Study of War) provides trusted analysis of the war.
ISW is owned by Kimberly Kagan.
Who is Kimberly Kagan?
She is married to Frederick Kagan.
Who is Frederick Kagan?
Frederick Kagan is the brother of Robert Kagan.
Who is Robert Kagan?
By sheer coincidence, Robert Kagan is married to none other than Victoria Nuland.
Who is Victoria Nuland?
Never heard of her?
Other examples of ISW as a source include:
MSNBC: “According to a report by Washington think tank the Institute for the Study of War, two leaders of the Russian intelligence service were placed under house arrest Friday.”
FOX News: …”Washington-based Institute for the Study of War said in a briefing”…
TL;DR: The MSM gets its war assessment from Victoria Nuland’s sister in law. Some say she organized the 2014 coup in Ukraine. Weird, right?
I appreciate the breakdown of the legalities surrounding the moralities of the Russian Intervention. Good job!
The Russian invasion of Ukraine is absolutely illegal and immoral. You cannot invade a sovereign country just because you want to protect an area or a community speaking your language or belonging to your ethnicity and culture. It is also immoral because even if you have any legal basis for your action, you should think of the suffering of those involved in your action. A landlord is immoral when he evicts a family from their apartment and throws them on the streets just because they are unable to pay the rent for some time.
The level of shelling, killing, slaughtering, and devastation we see every day being inflicted by the Russian forces on Ukraine is absolutely illegal and immoral. There is no justification whatsoever for this unprecedented level of evil, brutality, and devastation.
There was no old world order before the Ukraine war in order to have a new one after the war. Regrettably, the world has always been a jungle where the superpowers do whatever they want and stand by their allies in the UN Security Council to protect them. This is why we have seen many wars, invasions, war crimes, and crimes against humanity in different parts of the world: Vietnam, Afghanistan, Iraq, Syria, and now Ukraine. The UN is supposed to keep peace and stability, but it has been side-lined by the superpowers themselves. NATO and other organizations have taken its place although their legality is doubtful as per the International Law. This is why Putin is emboldened and launched a brutal criminal war against Ukraine. We should expect more wars like this unless the superpowers realize that it is not in their interests and the interests of the world to act as they want and put themselves above the international law and the UN Charter.
Do you think the United States would or should stand by and watch Mexico slaughter Americans on Mexican territory near the Texas border after Russia overthrew the government in Mexico City?
Legally, we must stand by. Morally and practically, we probably would not. The articles question is in re legality, not morality.
A brutal criminal act was the US founding and financing of the 26 biolabs in Ukraine, which constitute real WMD — unlike the US deliberate lies about Iraq’s WMD, which led to the destruction of the country and the deaths of millions of humans beings of all ages.
The rapacious US will never recognize that “it is not in their interests and the interests of the world to act as they want and put themselves above the international law.” The US has been above international law for too long – and without taking any responsibility for the mass slaughter and massive destruction of several countries. Until those who committed these heinous crimes against humanity are brought to court your attacks on the Russians Federation (which fights for its existence against the US/NATO-funded and weaponized Nazis, by the way) are nothing but expression of hypocrisy.
Also, where have you seen “shelling, killing, slaughtering, and devastation inflicted by the Russian forces on Ukraine?” – On MSM? Owners of Western MSM must be tried for the pernicious lies and war-mongering against Iraq, Afghanistan Libya, Syria, and now Russia.
Fantastic. The pieces of the legal jig saw are skilfully put together by Scott Ritter. Putin’s martial arts expertise is evident in the manner in which he is turning the USA’s actions back against it.
“Regardless of where one stood on the merits of that conflict, the fact is, from the standpoint of international law, the legality underpinning the U.S. and coalition use of force was rock solid.” However, I wrote an unpublished paper on the vote in the Security Council and detailed accounts in prominent newspapers, such as the Wall Street Journal, etc., which detailed the bribery/armtwisting the United States used to ‘persuade’ those then UNSC members. It came to the attention of Noam Chomsky (I was then an activist against the war) and he found it of enough interest to have me come in and discuss it. It resembled exactly the process the US had used in November 1947 in ‘convincing’ UN General Assembly nations…not on the merits of course…to switch their intentions to vote AGAINST partitioning Palestine and to vote for partition, thus undermining the secure right of each and every country to vote on the merits of the issue as it saw it. Similar here. Important to note that the US used the same techniques to get the Arab League endorsement for acting against Saddam. All this happened while King Hussein of Jordan was engaged in very active diplomacy, with which he expressed optimism, to persuade Saddam to withdraw from Kuwait. But President Bush ignored this, which explains why King Hussein was visibly disappointed with the White House during this period. The White House WANTED to use force to eject Saddam from Kuwait, and afterwards there came Bush’s call for a ‘new world order’…exactly the same phrase we now hear from Biden around the US mode of resistance dealing with Russia in Ukraine. So, Scott Ritter’s statement above simply ignores the way a powerful nation gets ‘international law’ to work for its own desired mode of operation.
Interesting. In the same vein, here’s NC on illegality of Gulf war [excerpted from Keeping the Rabble in Line]:
”So during the Gulf War, the UN did not give its approval. The UN was neutralized. There was a series of resolutions. When Iraq invaded Kuwait, the Security Council passed resolution 660, which is the usual kind of resolution that’s introduced after some act of aggression. It called for Iraq to withdraw. It had a second part, which was immediately forgotten, because the U.S. wouldn’t tolerate it. The second part was that Iraq and Kuwait should immediately undertake negotiations to settle issues between them. The U.S. wasn’t having that. They didn’t want negotiations. The second part dropped out of history. But the first part stayed. Iraq should withdraw. The only difference between that and any other UN resolution was that this time it wasn’t vetoed. A similar resolution had been introduced just a few months earlier, when the U.S. invaded Panama. Of course that time it was vetoed. The U.S. has vetoed dozens of such resolutions. Same thing when Israel invaded Lebanon.
Then came a series of resolutions leading ultimately to the final one, 678, in which the UN simply washed its hands of the matter. In late November 1990 the UN simply said, Look, it’s out of our hands. Any state can do anything they feel like. That’s one of the most destructive attacks on the UN that has ever taken place. The UN simply said, We cannot carry out our function. The UN charter is very explicit that no state can use violence unless explicitly authorized by the Security Council. The UN didn’t do that, but simply said, We have to wash our hands of the matter. The reason is the U.S. is going to do what it feels like.
David Barsamian: So yesterday’s bombing was illegal?
NC: It had no authorization at all. Nobody even pretends that it did. Furthermore, whatever the Iraqis were doing with the missiles, whatever games they were playing, right or wrong, you can discuss it at some other level, but as far as the UN resolutions are concerned, it’s conceded in the small print that they did not violate any resolution. As to the other things, impeding access of UN inspectors and moving into Umm Qasr port to pick up their equipment, that’s arguably in violation of resolutions in a technical sense, but the UN simply made a comment — didn’t condemn them as they condemn lots of things — authorizing no actions. The bombing was completely unilateral, a unilateral decision by the United States, which apparently was made even before the UN meeting. The aircraft carrier Kitty Hawk was already preparing. The only reason they didn’t attack a day earlier was because the weather was bad, meaning it would have occurred even before the UN meeting. It was independent of it. The UN never authorized any such action. ”
The final paragraph refers to the 1993 US bombing of Iraq.
I think that is very interesting and thanks for that information. I just wanted to point out that Richard Nixon and Henry Kissinger made a deal to protect the House of Saud if the Saudiis would back the dollar with oil. Thus, the creation of the ‘petrodollar’.
George Herbert Walker Bush was well aware of this deal as the family made its fortune in the oil business. It appears he wasn’t taking any chances with Saddam Hussein’s behavior after invading Kuwait and was going to ensure the security of the Kingdom. As I recall being in Riyadh at the time, Saddam was given every opportunity to withdraw his forces from Kuwait.
Who is NC?
By the way, here is his most cogently stated assessment of the (ill)legality of the Gulf War, at odds with Ritter’s assertion (Z Mag., May 1991).
”With threats and bribery, the US pressured the Security Council to wash its hands of the crisis, authorizing individual states to proceed as they wished, including the use of force (UN Resolution 678). The Council thus seriously violated the UN Charter, which bars any use of force until the Council determines that peaceful means have been exhausted (which, transparently, they had not, so no such determination was even considered), and requires further that the Security Council — not George Bush — will determine what further means may be necessary. ”
There is only one problem with this article. The Russian claim that a Ukraine offensive against Donbass was imminent may well be true. But the *only* document which Russia has produced publicly on its Web site is in Ukrainian and has not been properly translated into English and formatted. The one translation which I have seen, produced by some one on the Internet, only shows a Ukrainian operational order transferring a unit of the Ukrainian military to the Donbass front, along with some orders to insure the “psychological suitability” of members of that unit for operations on the front. This order is six pages long.
The Russians claim that this order proves that a military offensive would be conducted in March, 2022. In the translation I saw there is no reference to either an operation or the month of March. However, it is not clear that every page was translated, because the formatting of the translation does not coincide with the formatting of the six original pages. I have requested The Saker site to produce a translation properly formatted of the six pages. They said they do so. They have not done so. As far as I know, no one has.
Therefore there is no proof of the Russian claim available to my knowledge in the West.
It would behoove someone to take those six pages, which are available on the Russian Ministry of Defense Web site and on The Saker Web site, do a proper English translation of all six pages and confirm what the Russians claim. Perhaps Mr. Ritter could find a way to get this done.
As far as I know, no one has produced a properly formatted translation of this document.
Spoken like a true lawyer, Scott. Considering all the ad hoc explanations and justifications by the United States in its apologias for its various wars of choice, I could not anticipate where you would finally come down on the “legality” of Putin’s decisions to employ the force of arms against a clearly hostile and dangerous Ukraine, armed, trained and backed to the hilt, quite conspicuously egged on, by Washington and Nato. My own personal view on the matter? Whether Russia’s actions were legal or not, they were surely moral and justifiable considering the threat. A number of intellectuals, including Chomsky and Hedges, have frankly shocked me by disagreeing with you and condemning Russia as lawbreakers for its gambit to dare defy the US and Nato. Well, as the saying goes, “even the Devil can quote scripture to his purpose.”
Bravo, Scott. Your articles will be invaluable for showing people that the “Putin is a madman” meme is inaccurate and dishonest. He’s done nothing the US/NATO hasn’t done. The US’s attitude towards the UN has come back to bite them in the ass. Let’s hope that in the end the people will not swallow more hypocrisy to cover the hypocrisy.
I find it interesting, and somewhat ironic, that the Russians managed to use a law modified by the U.S. for it’s own goal of removing Saddam Hussein from power, to legally justify it’s own actions in Ukraine. The main difference being that the claims made by the Russians justifying the use or peremptory force were factual whereas those made by the US for justifying peremptory force in Iraq were fictional.
Of course that doesn’t stop the US media pundits from calling “foul”, but then hypocrisy is nothing new here, is it.
Thank you, Mr. Ritter, for this concise and thorough digest of the United Nations legal procedures. The US has regularly bent the logic of those procedures toward its own ends, as you have clearly documented. The pro-Ukraine/anti-Russia propaganda in the US media since the beginning of this conflict has been like a tsunami; I am simply amazed by the near-unanimity of anti-Russian hostility that is present not only in the news feeds but also in the comment sections of, for example, the New York Times. Commenters who I normally think of as left-leaning are breathing fire against Putin, based entirely (so far as I can see) on the news feeds. The uncritical acceptance of those news feeds is extraordinary.
I am beginning to see a few cracks in the wall of propaganda, as alternative viewpoints make their way into the comments. And there was even a news story yesterday about the abuse of Russian POWs by their Ukrainian captors, with video showing the captors shoot their bound captives in the legs. So maybe the blinders will come off, at least from enough people to make a difference. And it is for those people that this article is so important. Others like myself don’t require it, though we greatly appreciate it. Again, thank you.
Only problem I had with the video you speak of, ….. is that social media refuses to allow the posting of the url. So I had to go subversive and place a DOT in the middle of it with instructions to backspace it out. The real news gets there, by hook or by crook !!!
Thank you. Scott for a cogent analysis.
Although I generally support Russia in its desire to stem belligerent and threatening activity near its borders, I have often felt that the self-defense arguments are not very strong, because Russia was not attacked (although Scott Ritter suggests a rationale for the self-defense claim). I also feel Russia has no right to demand neutrality of a nation. That is interfering with a nation’s sovereignty. Even NATO’s desire to expand up to Russia’s borders should depend on the individual nations’ desire to join the alliance, since choosing NATO membership and/or any other alliances should be the right of a sovereign nation.
Stronger are the justifications to come to the aid of the republics of Donetsk and Lugansk, each of which declared independence many years ago, and both of which have come under lethal attack. I feel this rationale enjoys a much stronger justification, even though these fledgling nations are not members of the United Nations. Why should non-member-nations not enjoy the same protection as member nations? Certainly the UN charter does not argue against such protection or status. Furthermore, there is grave doubt that the operation in Kiev is representative of the entire nation of Ukraine, especially after the elected president was forced to flee for his life. One can argue that no government was put into place that commanded legitimacy after that act. The solution for the eastern enclaves was to form independent states, and certainly that is a legitimate response to having lost the head of state. This could be carried still further. A new capital could be established, say, in Odessa, and that could be also the capital of a new federation that would include not only the two new republics, but the western portion based in Kiev. Certainly, the new federation could claim as much authority to exist as the Kiev-based configuration.
Oh, give me a break. I read Scott Ritter’s article with relish and amazement that someone could put all the pieces together as Mr. Ritter has just done in part one of his essay on Internation law and aggression as it applies to Ukraine. I was sure that the comments would be overflowing: But where is everyone? I can’t wait to read part 2.
If Mr. Ritter is correct in his assessment of the legality of the Russian invasion of Ukraine, then Mr. Putin is also right when he claimed that Russia was acting in self defense.
An argument can be made that the UN quickly became a rubber stamp for US global ambitions, the same way the League of Nations served the interests of the British and French Empires. The nature of the Nuremberg Tribunals may perhaps be best understood in these regulations from its constitution: “”The Tribunal shall not be bound by technical rules of evidence” (Article 19); “The Tribunal may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof” (Article 20;)”The Tribunal shall not require proof of facts of common knowledge” (Article 21). The Chief Justice of the United States, Harlan Fiske Stone, commented, “Chief US prosecutor Jackson is away conducting his high-grade lynching party in Nuremberg . . . I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a Court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.”
Perhaps I should have said inconceivable in lieu of laughable in my post. This topic is very serious not only because people are suffering but also dying needlessly.
Yes – you don’t realize how correct you are. People in the Donbas have been “suffering and dying needlessly” at the hands of the imbedded Nazis within the Ukraine Army for the past 8 years. The topic is very serious indeed…..
Russia had legal and rock solid reasons to invade Ukraine whereas USA fabricated evidence to invade Irak. It’s laughable to hear western countries such as England, France, and Germany claim the high moral ground to defend the indefensible. If Mr. Ritter is correct in his assessment on the Russian invasion, then it is legal.
According to US policy, it’s only legal when the US does it.
And it doesn’t really matter if the claims made to justify the action are factual or fictional.
Nuremberg rulings and the Ukraine.
Scott Ritter’s argurment on currentinternational law is must read article, this comment is on something overlooked in the Nuremberg rulings—the Conspiracy to Wage Agressive War conjoined with Waging Agressive War as the supreme war crime from which all other crrimes of war flow.
Most see the Conspiracy as merely a catchall, but it is more than that it is the factual context that must exist for actual agression, in common speech the difference between an assault as a reaction of fear or avarice, or a plan to take ground by war to achieve some non-miliatary political and economic objectives. Here the difference between a reaction and a crime balances.
Diplomants and bankers who conspired were war criminals even when they ceased their activities before the actual war. ‘Jounralists’ were convicted and executed for a conspiracy against truth in order to make war by others. In all this the US is guilty even if it had been less brutual than it has been.
The conspiracy charge is a logical legal extension of Grotius’ Treaty of Westphalia which, if memory serves, banned princes meddling in the internal affairs of other kingdoms. Ending US dictatorship, must be carried out, not by, I believe, by a international court, but by its own courts—first it must be exiled from the international diplomacy, representation and notice until it does so, but no sanctions. Reforms to pattern law and copyright the US can have no say, no presnece no consulation, armenants treaties it will be subject to without consculation etc., a paria state until it clears itself of its national crimes.
In this way, as idealiest as it may sound, the end objective is not for the world to make the US into a cathagienian peace and salt the earth, but allow it to find its heart and restore itself. As an Australian I wish the same for my own country, we need to rid ourselves of this cabal of criminals in order to become a nation instead of this sad satrapy.
Interesting legal idea. Is it possible that third country could be guilty of a war crime of propaganda warmongering and political, economic pressure and armament supplies that resulted in war between third parties? We know that encouraging or calling for murder of individuals by mob. is a crime.
That’s correct. And just imagine if Russia installed weaponry and bases and troops as close to the U.S. borders as NATO installed their stuff in proximity to Russian borders. The invasion of Iraq simply put, gives the U.S. no legal credibility to interpret what’s legal or illegal or what constitutes a “threat”. I’d also add, Michael Chertoff and the Bush administration suspiciously, intentionally chose NOT to even investigate 9/11 as a crime, which it obviously was. Instead, they shipped all the steel, for example to China immediately, and the event was called “an act of war” and then came the so-called “war on terror” which is so legally ambiguous as to not hold anybody accountable for anything anywhere. It’s difficult to comprehend how any of that was legally tenable. It’s impossible to have any international world order when even the so-called “city on the hill” country of America is not following any of the laws that they want every other country to obey. And then there’s the whole drone program killing people in all kinds of countries that we as citizens have no knowledge about the details, much less any representational say in if we support it or not. One could go on and on about the hypocrisy of our position on Ukraine.
A disturbingly lucid argument. However, the reality, to me and many others, is that the United Kingdom and then the United States have, for over a century, made an utter mockery of the concept of international law, replacing it with a Hobbesian state of nature, reinforced by blatant hypocrisy and false narratives. Thus international law, like human rights, has become a mere aspiration.
Sir I couldn’t agree more.
I’m extremely interested in why it is no one seems to realize the U.S. is right where these ever powerful members of the executive branch have willed it to be. Congress being the impotent assembly it is rubber stamps what ever follows the NEOCON UNI-part line. You understand those magic swords, “In the best interest of national security”, right? Hiding behind the ever present DOJ caveat of “Sources and Methods”.
Everyone must at some point realize the true functioning structure of the Executive Branch of the U.S. Government, is not as it appears to be, that is the president has become a figurehead of authority in the U.S. whilst the DOJ actually calls the shots for the cases that might matter most, to those individuals invested in the unitary executive theory, especially when secrets rule in the dispensing of justice, which seems to be the case the majority of the time.
Lying when the truth might work better, or the use of “sources and methods” caveat to render actual prosecution impossible. Thus caveat ensures a total secrecy that make a mockery of the meaning of the “U.S. Dept. of Justice”.
The key to the method part of this equation could be said to be when one is used to provide a utilty to another thing or person, that is a SOURCE of some advantage to successfully completing what ever the task at hand might be.
The METHOD is to claim revealing anything about the sources will damage the “legal system terminally”. That the damage being done is a real threat to national security. Particularly in this case this kind of logic is garbage. In many sectors of this Affair this caveat was applied, espescially when it benefited the so called government side. Currently examining closely the INSLAW Affair proves it. Still DOJ submits to the will of the intelligence community, both domestic and Allied. Not as directed by the president or statute but by those members of DOJ and the SCOTUS closely adhering to the unitary executive theory, thusly allowing the DOJ to hide behind the “Sources and Methods ” caveat that when used by members worried more about prosecuting the unitary executive theory, the method used to manage the manner in which the executive operates rather than prosecuting criminals.
John Kennedy’s enemies in government ignored him when it was beneficial to them and they at the very least stood by while he was murdered. Many who had a hand in this act still hide the sources and methods caveat, even when they are known to have had knowledge of the crime before the fact. That unitary executive theory at work doing what it has done best, hiding the truth of it’s backers dirty deeds from the American public.
The BCCI case, the Contra case, Noriega case, the completely mishandled White Water “white wash” and the INSLAW Affair ALL are tangled together in a very dark web of hundreds if not thousands of secrets and lies which the DOJ, and especially Bill Barr wishes would go away and for damned good reason.
Why go away? Simply enough is needs to disappear because otherwise DOJ will found to have grossly exceeded it’s authority and authority that should have been exercised by congressional investigation, which should have led to a threat at the very least to take the case to the International Criminal Court. This case involved large groups if international bankers and should not have resided in the U.S. courts alone. Why? Take a sober look at where the world has ended up today.
This dark episode in the history of DOJ has been and still is a travesty of justice to say the very least. All of which can be traced through to how these events precipitated from a government software contract to events of million dollars drug of smuggling, money laundering, bank fraud all supposedly for the sole purpose of selling and paying for illegal arms shipments to the corrupted Contras and far beyond, As this episode is allowed to stand we as a free people exist no longer.
DOJ covered this up because to not do so would have ensured a great many of U.S., court, congressional and intelligence community individuals, including intelligence Allies where guilty of egregious crimes against Americans, the world banking industry and their country. DOJ would have been destroy8ed as these bad actors knew it. And that should have happened. Same as in the Kennedy murder.
The archived document I refer to here provides proof of what happens when DOJ perverts justice as an end to it’s own means and not that of the country. This was all about protecting a criminal group and quickly got out of hand because of individual greed. DOJ doing the bidding of the super wealthy Deep Staters, those who are in the exclusive club the rest of don’t belong to.
This one example on it’s own must be a bridge too far for all Americans, same the as the murder of JFK should have been. See the bogus Warren Report for what it was. Fool a thirteen year old once but never try to do it again.
Make no mistake all involved here never pursued, are responsible for gutting DOJ.
As a direct result I’m strongly in favor of throwing gas on the fire, the truth really hurts when it is the gasoline and the ones lying have their pants on fire.
Thanks CN Scott and the crew.
In the current atmosphere of Russophobia, the question regarding the legality of Russia’s invasion was closed before any analysis could occur.
I concur with Mr. Ritter. In the strictest interpretation of Article 51 and the Caroline Treaty, the invasion must be seen as illegal. It is only when you allow Russia to apply the exceptions that the US and NATO had previously carved out for themselves that it can be justified.
If application of the law is not equal, there is no law.
If aggression against another coutry is a war-crime, then every American president since the Second World War is a war criminal!
Excellent! Thanks for the information. Looking forward to Part 2.