Russia Is A Terrorist State Committing War Crimes In Ukraine: The United Nations Must Act To Maintain International Security And Peace

The NATO Alliance has been very clear that it has no Article V mutual defense obigations to a NATO non-member state, and it will not militarily intervene in Ukraine unless – perhaps, maybe – Russia uses chemical or tactical nuclear weapons in Ukraine.

This is a higher bar than both the United Nations and NATO applied in both the Bosnia War (1992-1995), and the Kosovo War in Yugoslavia (Feb. 1998 – June 1999) in the former Yugoslavia following the collapse of the Soviet Union. Yugoslavia was a Warsaw Pact nation, and United Nations ad NATO intervention was prompted by “ethnic cleansing,” i.e, the war crime of genocide.

Background

The Bosnian War (1992-1995) was characterized by bitter fighting, indiscriminate shelling of cities and towns, ethnic cleansing, and systematic mass rape, mainly perpetrated by Serb, and to a lesser extent, Croat and Bosniak forces. Events such as the Siege of Sarajevo and the Srebrenica massacre later became iconic of the conflict.

Sound familiar? All of these conditions currently exist inside Ukraine at the hands of the Russian military.

The United Nations formed the United Nations Protection Force (UNPROFOR), the first United Nations peacekeeping force in Croatia and in Bosnia and Herzegovina during the Yugoslav Wars. In March 1995 the peacekeeping mission restructured into three other forces (the United Nations Preventive Deployment Force (UNPREDEP) in Macedonia, and the United Nations Confidence Restoration Operation in Croatia (UNCRO) in Croatia, with restructured UNPROFOR operations ongoing in Bosnia and Herzegovina.

On October 9, 1992, the United Nations Security Council passed Resolution 781 ( adopted by 14 votes to none against, with one abstention from China), prohibiting unauthorized military flights in Bosnian airspace. This resolution led to Operation Sky Monitor, where NATO monitored violations of the no-fly zone, but it did not take action against violators of the resolution. On 31 March 1993, in response to 500 documented violations, the United Nations Security Council passed Resolution 816 (adopted by 14 votes to none, with one abstention from China), which authorized states to use measures “to ensure compliance” with the no-fly zone over Bosnia. In response, on April 12, 1993 NATO initiated Operation Deny Flight, which was tasked with enforcing the no-fly zone and allowed to engage the violators of the no-fly zone. However, Serb forces on the ground continued to attack UN “safe areas” in Bosnia, and the UN peacekeepers were unable to fight back as the mandate did not give them authority to do so. On 4 June, the United Nations Security Council passed Resolution 836 ( adopted by 13 votes to none, with two abstentions from Pakistan and Venezuela) authorizing the use of force by UNPROFOR in the protection of specially designated safe zones. Operation Sharp Guard, a naval blockade in the Adriatic Sea by NATO and the Western European Union, was approved at a joint session of NATO and the WEU on 8 June and began on 15 June.

Note: Russia is a permanent member of the United Nations Security Council and has the ability to veto any Security Council Resolution creating “safe havens” and “no fly zones” inside Ukraine. (It is not at all clear that permanent member China would abstain, as well as current Security Council members India and United Arab Emirates).

There is a way around the United Nations Security Council, however.

United Nations General Assembly (UNGA) resolution 377 A (1950), the “Uniting for Peace” resolution, states that in any cases where the Security Council, because of a lack of unanimity among its five permanent members (P5), fails to act as required to maintain international security and peace, the General Assembly shall consider the matter immediately and may issue appropriate recommendations to UN members for collective measures, including the use of armed force when necessary, in order to maintain or restore international security and peace. The resolution was designed to provide the UN with an alternative avenue for action when at least one P5 member uses its veto to obstruct the Security Council from carrying out its functions mandated by the UN Charter. To facilitate prompt action by the General Assembly in the case of a deadlocked Security Council, the resolution created the mechanism of the emergency special session (ESS).The most recent ESS was convened in February 2022, to address Russia’s invasion of Ukraine (with no action).

The United Nations General Assembly could authorize military force “to maintain international security and peace” in Ukraine, and invite the NATO Alliance to support a United Nations Preventive Deployment Force (UNPREDEP) in order to establish “safe havens” and “no fly zones” inside Ukraine, but it has failed to act.

Continued:

On February 6, 1994, a day after the first Markale marketplace massacre, UN Secretary-General Boutros Boutros-Ghali formally requested NATO to confirm that air strikes would be carried out immediately.

On February 9, 1994 agreeing to the request of the UN, NATO authorized the Commander of Allied Forces Southern Europe (CINCSOUTH), US Admiral Jeremy Boorda, to launch air strikes against artillery and mortar positions in and around Sarajevo that were determined by UNPROFOR to be responsible for attacks against civilian targets.

NATO flew air support for the United Nations Preventive Deployment Force (UNPREDEP) until August 1995. Operation Deliberate Force. The operation was carried out between 30 August and 20 September 1995, involving 400 aircraft and 5,000 personnel from 15 nations. Commanded by Admiral Leighton W. Smith Jr.,[6][5] the campaign struck 338 Bosnian Serb targets, many of which were destroyed. Overall, 1,026 bombs were dropped during the operation, 708 of which were precision-guided.

The war ended after the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina in Paris on 14 December 1995. Peace negotiations were held in Dayton, Ohio, and were finalised on 21 November 1995.

Estimates suggest that around 100,000 people were killed during the war. Over 2.2 million people were displaced, making it the most devastating conflict in Europe since the end of World War II – until now, in Ukraine.

This was followed by the Kosovo War (Feb. 1998 – June 1999), fought by the forces of the Federal Republic of Yugoslavia (i.e. Serbia and Montenegro), which controlled Kosovo before the war, and the Kosovo Albanian rebel group known as the Kosovo Liberation Army (KLA).

After attempts at a diplomatic solution failed, NATO intervened, justifying the campaign as a “humanitarian war.” NATO deliberately did not seek Security Council authorization for its action because it knew that the Russian Federation would veto any authorizing resolution. The legitimacy under international law of the 1999 NATO bombing of the Federal Republic of Yugoslavia has been seriously questioned. Legitimacy of the NATO bombing of Yugoslavia:

The UN Charter is legally binding on all United Nations member states, including all members of NATO, because they have each signed it. Article 2(4) of the UN Charter prohibits the use of force by UN member states to resolve disputes, but with two specific exceptions to this general prohibition:

1. The first exception is set forth in Chapter VII–the UN Security Council has the power to authorize the use of force in order to fulfill its responsibility to maintain international peace and security. In particular, Article 42 states that should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

2. Article 51 contains the second specific exception to the prohibition on the use of force–the right to self-defence. In particular, Article 51 states that nothing in the present charter shall impair the inherent right of individual or collective self-defence 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.

NATO did not have the backing of the United Nations Security Council to use force in Yugoslavia. Further, NATO did not claim that an armed attack occurred against another state. However, its advocates contend that NATO actions were consistent with the United Nations Charter because the UN Charter prohibits unprovoked attacks only by individual states. The principal legal issue remains, however, since NATO as such is not a member state of the UN, whether the member states of NATO, the United States and the European powers that sent armed forces to attack as part of the NATO bombing campaign, violated the UN Charter by attacking a fellow UN member state: (1) in the absence of UN Security Council authorization, and (2) in the absence of an attack or a threat of imminent attack on them.

The United Nations considers NATO to be a “regional arrangement” under UN Article 52, which allows it to deal with matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. However, the UN policy on military intervention by regional arrangements in UN Article 53 states the Security Council can, where appropriate, “utilize such regional arrangements or agencies for enforcement action under its authority. However, no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.”

NATO justified the actions in Kosovo under Article 4 of its charter, the North Atlantic Treaty, which allows involved parties to consult together whenever political independence or security of any of the parties is threatened. Because the NATO actions in Kosovo were taken after consultation with all members, were approved by a NATO vote, and were undertaken by several NATO members, NATO contends that its actions were in accordance with its charter. Article 4, however, is silent as to the use of force and does not discuss under what circumstances force may be authorized.

UN Secretary-General Kofi Annan supported intervention in principle, saying “there are times when the use of force may be legitimate in the pursuit of peace”, but was critical of unilateral action by NATO. He argued “under the [UN] Charter the Security Council has primary responsibility for maintaining international peace and security – and this is explicitly acknowledged in the North Atlantic Treaty. Therefore, the Security Council should be involved in any decision to resort to the use of force.”

After the war ended with the Kumanovo Treaty and the bombing stopped, some argued that the creation on June 10, 1999 of the UN Interim Administration Mission in Kosovo (UNMIK), by Security Council Resolution 1244 (1999) (adopted by 14 votes to none against, China abstained), constituted a legal ratification post festum (after the event). Wrong: In the preamble of Resolution 1244, the Security Council regretted that there had not been compliance with previous resolutions.

It somehow has been lost to history now, but there was widespread international objection to the unilateral decision by NATO to intervene in the Kosovo War. This no doubt colors NATO’s reluctance today to act unilaterally in Ukraine.

Today

When Ukraine’s President Zelensky complains that NATO should enforce “clear skies” over Ukraine, he is arguing for NATO to act unilaterally as it did in the Kosovo War. But the appropriate way to assist Ukraine is how the world responded to the Bosnian War. This will require bypassing the Security Council because of Russia’s veto power. The U.N. General Assembly will have to resort to United Nations General Assembly (UNGA) resolution 377 A (1950), the “Uniting for Peace” resolution, in order to authorize a United Nations Protection Force (UNPROFOR) to establish “safe havens” and “no fly zones” inside Ukraine, and to irequest NATO to protect UNPROFOR on the ground and to enforce “no fly zones.” This would pit Russia against the United Nations (by a majority vote of the world’s nations), rather than Russia against the NATO Alliance, which is what Vladimir Putin and his propaganda machine wants.

The Bosnian War is also the appropriate historical and legal precedent.

CNN reports, Images of dead civilians in Ukraine shake the world (excerpt):

“This is genocide.”

That’s how Ukrainian President Volodymyr Zelensky described the shocking images of at least 20 civilian men’s bodies strewn across the street in Bucha, northwest of the capital of Kyiv, following the withdrawal of Russian forces from the area.

Accounts of alleged Russian atrocities, including the horrific images of dead civilians captured by Agence France-Presse, are emerging as its forces retreat from areas near Kyiv following a failed bid to encircle the capital.

“The elimination of the whole nation, and the people. We are the citizens of Ukraine. We have more than 100 nationalities. This is about the destruction and extermination of all these nationalities,” Zelensky said Sunday on CBS News’ “Face the Nation” when asked if Russia is carrying out genocide.

* * *

Human Rights Watch documents alleged crimes. Rape, summary executions and unlawful violence are some of the war crimes allegedly perpetrated by Russian forces against civilians in the occupied areas of the Chernihiv, Kharkiv and Kyiv regions of Ukraine, according to Human Rights Watch, an independent rights group.

HRW said in a statement Sunday that it has documented allegations of war crimes, which “include a case of repeated rape; two cases of summary execution, one of six men, the other of one man; and other cases of unlawful violence and threats against civilians between February 27 and March 14, 2022.” CNN has not independently verified the details of those reports.

* * *

CNN team observes a mass grave site. A mass grave has been discovered in the town of Bucha, CNN found. CNN saw at least a dozen bodies in body bags piled inside the grave. Some were already partially covered.

Bodies were first buried in the grave, on the grounds of the Church of St. Andrew and Pyervozvannoho All Saints, in the first days of the war, residents told CNN. Around 150 people, mostly civilians killed in the fighting around the town, are buried there, residents said. The mayor of Bucha said in public remarks on Saturday that there could be up to 300 victims buried on site. CNN was unable to independently verify those numbers or the identities and nationalities of those buried in the grave.

The AP reports, Russia faces global outrage over bodies in Ukraine’s streets (excerpt):

Moscow faced global revulsion and accusations of war crimes Monday after the Russian pullout from the outskirts of Kyiv revealed streets strewn with corpses of what appeared to be civilians, some of whom had seemingly been killed at close range.

The grisly images of battered bodies left out in the open or hastily buried led to calls for tougher sanctions against the Kremlin, namely a cutoff of fuel imports from Russia. Germany reacted by expelling 40 Russian diplomats, and Lithuania threw out its Russian ambassador.

Ukrainian President Volodymyr Zelenskyy left the capital, Kyiv, for his first reported trip since the war began nearly six weeks ago to see for himself what he called the “genocide” and “war crimes” in the town of Bucha, the site of some of the horrors.

[In] Bucha, northwest of Kyiv, bodies wrapped in black plastic were piled on one end of a mass grave in a churchyard. Many of the victims had been shot in cars or killed in explosions trying to flee the city, and with the morgue full and the cemetery impossible to reach, it was the only place to keep the dead, Father Andrii Galavin said.

[O]ther European leaders and the United Nations human rights chief condemned the bloodshed, and U.S. President Joe Biden said Russian President Vladimir Putin should face a war crimes trial.

“This guy is brutal, and what’s happening in Bucha is outrageous,” said Biden, who also promised to increase sanctions against Moscow.

[In] Bucha, Associated Press journalists saw 21 bodies, including a group of nine in civilian clothes who appeared to have been shot at close range. At least two had their hands tied behind their backs. A bag of groceries was spilled by one of the dead.

The full extent of the bloodshed in the Kyiv area has yet to emerge. By all accounts, the horrors in the shattered southern port city of Mariupol are likely to be far worse.

“This is a war of murders, a lot of blood. A lot of civilians are dying,” said Natalia Svitlova, a refugee from Dnipro in eastern Ukraine who fled to Poland. “I don’t understand why this is possible in the 21st century and why no one can stop it.”

Russia withdrew many of its forces from the capital area in recent days after being thwarted in its bid to swiftly capture Kyiv. It has instead poured troops and mercenaries into the country’s east in a stepped-up bid to gain control of the Donbas, the largely Russian-speaking industrial region that includes Mariupol, which has seen some of the heaviest fighting and worst suffering of the war.

[W]estern and Ukrainian leaders have accused Russia of war crimes before, and the International Criminal Court’s prosecutor has already opened an investigation. But the latest reports ratcheted up the condemnation.

French President Emmanuel Macron said there is “clear evidence of war crimes” in Bucha that demand new punitive measures.

“I’m in favor of a new round of sanctions and in particular on coal and gasoline. We need to act,” he said on France-Inter radio.

But Poland’s prime minister described Russia under Putin as a “totalitarian-fascist state” and called for actions “that will finally break Putin’s war machine.”

“Would you negotiate with Hitler, with Stalin, with Pol Pot?” Mateusz Morawiecki asked of Macron.

Actually, France and much of the world did. Poland is still sitting on 28 Mig-29 jets that it could repaint with Ukraine’s military insignia and haul across the border today, but it wants to send them to Germany and have the U.S. deliver them in order to maintain plausible deniability. Nobody is blameless here.

“The horrors that we’ve seen in Bucha are just the tip of the iceberg of all the crimes that have been committed by the Russian army on the territory of Ukraine so far,” Ukrainian Foreign Minister Dmytro Kuleba said.

“And I can tell you without exaggeration but with great sorrow that the situation in Mariupol is much worse compared to what we’ve seen in Bucha and other cities, towns, and villages nearby Kyiv.”

This story is part of an ongoing investigation from The Associated Press and Frontline that includes the War Crimes Watch Ukraine interactive experience and an upcoming documentary.

CNN Updates, US President Biden calls Bucha atrocities a “war crime”:

U.S. President Joe Biden Monday called the atrocities committed by Russia and President Vladimir Putin in Bucha, Ukraine, a “war crime” but said it was not a genocide, adding that he is looking into more sanctions on Russia. [He is contextualizing in past genocides in the millions of people, but this was not the case in the former Yugoslavia.]

“You may remember I got criticized for calling Putin a war criminal. Well the truth of the matter is you saw what happened in Bucha. This warrants him — he is a war criminal. But we have to gather the information. We have to continue to provide Ukraine with the weapons they need to continue the fight and we have to get all the details so this can be an actual — have a war crime trial. This guy is brutal and what’s happening in Bucha is outrageous and everyone’s seen it,” Biden told reporters upon landing in Washington, DC.

Asked whether the crimes committed in Bucha warrant the situation a genocide, Biden told reporters, “No. I think it’s a war crime.”

Um, Joe, genocide is a war crime, war crime: international law (excerpt):

The Nürnberg Charter, which established the Nürnberg tribunal and categorized the offenses within its jurisdiction. The charter listed three categories of crime: (1) crimes against peace, which involved the preparation and initiation of a war of aggression, (2) war crimes (or “conventional war crimes”), which included murder, ill treatment, and deportation, and (3) crimes against humanity, which included political, racial, and religious persecution of civilians. This last category included what is commonly called genocide.

The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations in 1948, defined genocide as including killing or inflicting serious physical or mental injury on members of a national, ethnic, racial, or religious group with the intention of bringing about the group’s destruction, in whole or in part. The convention made genocide an international crime that could be prosecuted in the court of any country.

Biden also said he was “seeking more sanctions” and would be announcing them shortly.

The United Nations General Assembly should be considering a resolution pursuant to United Nations General Assembly (UNGA) resolution 377 A (1950), the “Uniting for Peace” resolution, to authorize a United Nations Protection Force (UNPROFOR) to establish “safe havens” and “no fly zones” inside Ukraine, and to request NATO to protect UNPROFOR on the ground and to enforce “no fly zones.”

What in the world are they waiting for? If the U.N. could do it for the Bosnia War, it should do it for the Russo-Ukraine War.