International Law | paulhunterjones

In 1945 the global community took a deep sigh of relief. Celebrations broke out across the planet. World War II had come to an end in the Pacific and Europe. No one doubts the magnitude and historical significance of the end of the war. How many people lost their lives in the fighting? Historians have never agreed on the exact number of deaths. It is known that twice as many civilians lost their lives as did combatants. The best estimates put the number of dead between 70-90 million. Russia suffered by far the most casualties. According to Britannica.com, “there can be no real statistical measurement of the human and material cost of World War II. The money cost to governments has been estimated at more than $1,000,000,000,000. This figure does not represent the human misery, deprivation, and suffering, the dislocation of peoples, or the sheer physical destruction of property that the war involved.” The conflict between a few nations had led (again) to a global battle. The international community’s efforts to limit the fighting in Ukraine to Ukraine can be understood given the state of the world 80 years ago.

Could WWII have been averted? In an effort to avert global wars, the international community established The League of Nations in 1920. The formation of the League was the result of a grand idea; nations would have a forum to discuss their difference and avoid armed conflict. Conversation and debate would replace guns and bombs. Let’s remember the historical context in which the League came to life. WWI had just ended. The “war to end all wars” needed help to make sure another global war did not erupt.

I will not offer a discourse as to why the League was fatally flawed. Most international organizations cannot meet their goals due to regional differences and claims of national sovereignty. Did you know that the United States never joined the League of Nations? The League’s main arm ceased operations in 1946. Other League components would eventually be incorporated back into the United Nations. The United States is one of the founding members of the U.N. We as a nation had learned a lesson. Today´s international community is more complex and contentious than most past historians could have ever imagined.

We should give credit to the founders of the U.N. The signatory nations to the U.N Charter anticipated the need for some kind of international tribunal to hear and resolve regional differences. World leaders understood that a global community acting in unison stood a better chance of preventing armed conflict than two nations in bilateral negotiations. Some ground rules had to be laid if this grand idea was to succeed. Nations will always have their differences. Leaders representing the collective views of their citizens are often very passionate and expressive as to what they believe is correct and just. A third party had to arbitrate these differences and impose a ¨legal resolution.

The U.N. Charter established the International Court of Justice. Nations now had a forum to resolve their disputes. The ICJ is the U.N.’s principal judicial organ. It began hearing cases in 1946. The Court’s principal offices are in the Peace Palace in the Hague Netherlands. U.N. member nations automatically have access to the ICJ. According to the Court’s official website:

“The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies”

A nation can commence with the ICJ a case against another nation. These types of proceedings are called contentious. The case title would appear on the docket as nation1 vs nation2. Also, two nations can agree to submit their controversy to the ICJ for consideration and resolution. These types of cases would be titled Nation1/Nation2. At this moment, there are about 17 cases on the Court’s active docket for either consideration or are under consideration by the Court. The cases involve complex issues of international law. The Judges are called upon to consider and apply conflicting local laws. Just like court cases here in the U.S. litigation before the ICJ results in one party winning and the other losing. A nation may not be happy with the outcome but they do not turn to conflict to impose their solution.

After years of litigation before the ICJ judges, the winning nation is often left without a mechanism to enforce the Court’s judgment. ICJ decisions are normally final without a recourse to appeal. Once the decision and judgment are filed, that’s it. The World Court can tell a nation to pay this or do that but has no way of compelling the nation to do anything. Under very limited circumstances, a nation might be able to enforce the decision in a nation’s local court system.

Many international legal experts and pundits have lambasted the ICJ’s lack of an enforcement mechanism. They argue that the Court’s inability to enforce it decisions makes it a “toothless tiger.” This is true as it is irrelevant. The ICJ is a legal institution whose main goal is political in nature and not legal. After nations have litigated for years to obtain a disposition of their case, national passions have usually subsided. Most nations that appear before the ICJ respect the court’s decisions. After the ruling, nation-litigants often find a way to negotiate their difference.

An added incentive to nations to either comply with the decision or negotiate a lasting resolution is the fact that the international community often penalizes a non-compliant nation. Sanctions are imposed upon the nation that fails to comply with the Court’s judgment and order. Of greater consequence is that international lending organizations restrict the losing nation’s access to critically needed funding.

I believe that in an imperfect world we should not impose perfection upon the International Court of Justice. It has prevented countless regional conflicts from exploding into armed conflict. The Court gives hope to nations that believe that they have a place to be heard and have their grievances fairly decided. We cannot politically or legally expect more from the Court.

KYIV, UKRAINE – FEBRUARY 26: Local residents are boarding an evacuation train driving to the west of Ukraine on February 26, 2022 in Kyiv, Ukraine. Explosions and gunfire were reported around Kyiv on the second night of Russia’s invasion of Ukraine, which has killed scores and prompted widespread condemnation from US and European leaders. (Photo by Pierre Crom/Getty Images)

The Current Situation

War in Ukraine arrived on March 24, 2022. Russian armored divisions rolled across Ukraine’s borders at several points. For weeks the Russian military had augmented its over-the-border staging areas. When the order was given, Russian troops poured into Ukraine in masse. At first, Russian troops easily pushed deep into Ukraine, or so it seemed. It soon became evident that the vaunted Russian army was suffering from terrible logistics, low troop morale, and a failure to appreciate the tenacity of the Ukrainians as fighters. Russian armored columns literally run out of petrol.

On top of these self-inflicted problems, NATO countries rushed to send sophisticated weapons to the Ukrainians. From what has been reported, Ukrainian soldiers are skillfully using these weapons to hold their own against the Russians. Recently, the fighting seems to have reached a stalemate. Security experts and intelligence officers believe that neither side is gaining or relinquishing territory. The fact that Russia has now engaged in siege warfare points to the fact that a battle stalemate exists.

There is considerable debate over who benefits most from a stalemate, the Russians, or Ukrainians. One thing is for sure; Ukraine’s infrastructure is being systematically destroyed. Russia’s targeting of civilians is creating a refugee problem not seen since the Second World War. Once beautiful and vibrant cities are being reduced to rubble. Who has not seen the destruction and death broadcast daily on the news and in social media posts? Is Russia trying to exterminate the citizens of Ukraine?

Some Historical Perspective

Do you remember the collapse of the USSR? A powerful faction of the communist party officials removed then-President Mikhail Gorbachev from office. The year was 1991. Gorbachev had favored policies to decentralize the government, bring about economic reforms and improve relations with the West. The old Russian guard sought desperately to reverse perestroika. On August 22, 1991, tanks descended on Red Square to stage a coup. Newly installed President Boris Yeltsin stood on a balcony to personally survey the situation. He gave the peace sign. The coup fizzled out and the breakup of the USSR become official on December 25, 1991.

Ukraine, a USSR satellite state, broke away from the Soviet Union to become an independent and sovereign state. Thirty years later the Soviet Union is trying to forcefully reintegrate militarily and economically this former member of the U.S.S.R. Perhaps history will repeat itself in several ways. Many people hope so!

The Center of the political storm: Viktor Yanukovych

He was born July 9, 1950, in Ukraine, U.S.S.R. At the time of Victor Yanukovych’s birth, the cold war was heating up. Yanukovych attended the Donetsky Polytechnic Institute. In 2000 he received a law degree from the Ukrainian Academy of Foreign trade. Early in his career, he swore his allegiance to the communist party and the U.S.S.R . Yanukovych rose to the top of local politics in the Dumbar region. He ascended to the pinnacle of Ukrainian politics though he did not speak Ukrainian. It should not come as a surprise that Vladimir Putin always supported Yanukovych’s political ambitions, seeing how their goals coincided.

Without going into details the case can be made that the recent political and economic conflict between Russia and Ukraine centered around Yanukovych. His passage through Ukrainian politics and Russia’s inability to subjugate its foreign satellite state led to current “Special Military Action.” The annexation of the Crimea and attempted subjunction of the Donbas region appear to be Russia’s reaction to Yanukovych’s change of political fortunes.

Yanukovych won in the presidential election in 2010. In-country international poll observers concluded the election had been fair and transparent. The Eastern part of the country voted for Yanukovych. His opponent and sitting president, Victor Yushchenko, received the vote from the Western part of the country. Yuschenko’s supporters took to the streets to protest the election results. Yanukovych suppressed the protests but never really had the support of all Ukrainians. He was ousted from office four years later when he refused to establish closer economic and cultural relations with the West. Instead, he chose to move Ukraine further into Russia’s sphere of influence. Ukraine’s love-hate relationship with Russia cannot be disputed. The two countries are connected by so many factors that an amicable divorce doesn’t seem possible.

On January 25, 2019, a Ukrainian court sitting in Kyiv’s Obolon District sentenced former President Yanukovych to thirteen years in jail. The order of incarceration came almost five years after a popular uprising ousted him from power. He had been charged criminally with having committed several serious crimes. The court convicted and sentenced him upon being found guilty of “crimes against the foundation of Ukraine’s national sovereignty. In simple legal terms, the court convicted him of “high treason.” When he arrived in Moscow, he pleaded with Putin to send into Ukraine Russian troops to restore him to power. Yanukovych argued that he could resurrect Russia’s influence in Ukraine’s political affairs. According to him, Ukraine could still become a de fact satellite state of Russia. I believe that Russia began to seriously plan an invasion of Ukraine after the court issued its order of incarceration.

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