By Dr. Anwar Sadat
One does not need to spend much time on defining great powers. It is safe to consider five permanent members of the United Nations Security Council (UNSC) – United States, Russia, Great Britain, China and France- as great powers. Article 24 of the UN Charter says that on behalf of the members of the UN they are primarily responsible for maintaining international peace and security. They are permanent members of the UNSC owing to the fact that they were victorious powers during the Second World War. Although no third world war has taken place so far, the world war like consequences have been borne by innocent people attributable to acts of omission and commission by the great members which they defend on the ground not defendable in international law.
Russia and International Law
Russia’s invasion of Ukraine is a clear-cut violation of international law. Russia is trying to manufacture legal basis by arguing that there is a purported genocide in Eastern Ukraine. In utter violation of the principle relating to prohibition of war enshrined in the Kellogg-Briand Pact (also called Pact of Paris 1927) and Article 2 (4) of the UN Charter, Russia invades Ukraine and wants to win war by violating all the norms and customs of war enshrined in the four Geneva Conventions 1949. Likewise other great powers, Russia did not pay the slightest attention to an ICJ judgment delivered just before its decision to launch an attack on Ukraine on 9th February 2022 in Armed Activities on the Territory of Congo. The judgment decried Uganda for violating the fundamental principle of non-use of force and of non-intervention, international humanitarian law and basic human rights in the Democratic Republic of Congo. One must not forget that Russia annexed Crimea forcibly in violation of the UN General Assembly resolution in 2014.
China and International Law
China does not condemn Russia’s invasion of Ukraine. Rather it has helped Moscow in continuation of war by abstaining in the crucial UNSC voting. China’s disrespecting of the United Nations Convention on the Law of the Sea (UNCLOS) in the South China Sea has serious implications for international legal order. While asserting a nine-dash line area which covers most of the South China Sea and overlaps with the exclusive economic zone claims of Brunei, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam, China disregards the United Nations Convention on the Law of the Sea 1982 (UNCLOS). China passed the Maritime Traffic Safety Law which requires all foreign vessels entering Chinese territorial waters to notify maritime authorities, carry required permits, and submit to Chinese command and supervision. Prior to this, China passed a new law which authorizes the Chinese coast guard to use force on foreign vessels infringing on Chinese sovereignty. Both laws have serious implications upon the provisions of the UNCLOS which grant states the right of innocent passage without requiring permission from the coastal state’s government.
United States and International Law
In the case of the United States also, it has been clearly observed that compliance with international law has been influenced by Realpolitik. The Case Concerning Military and Paramilitary Activities in and against Nicaragua is a turning point. In 1984, the International Court of Justice decided to hear the dispute arising from military and paramilitary activities in the US. Activities that the US conducted in and against Nicaragua. The US raised an objection that the ICJ did not have jurisdiction over that dispute. Although it participated in the jurisdiction phase, it was absent at the merit phase. In 1986, the ICJ finally determined that the US. violated its international obligations toward Nicaragua. The latter sought to enforce the ICJ judgment through bilateral negotiations firstly with the US and then through recourse to the UN Security Council and General Assembly. The US was able to block any related proposals in the UN Security Council. The US along with Britain went to war against Iraq without the UN Security Council consent in 2003. The then US president Bush Jr. warned in his speech to the General Assembly of September 12, 2002, the organization is “irrelevant”. The US did not wait for the Security Council approval for launching an attack on Iraq. In the eyes of international law, the US flagrantly violated the UN Charter and waged an illegal war against Iraq in 2003. It sounds contradictory that the US, not a party to the Rome Statute establishing the international criminal court (ICC) has declared the Russian President a war criminal to be subjected to prosecution. The US is not keen either to join the ICC with an intent to protect its service personnel from facing trial at the ICC.
In Russia’s viewpoint, its war against Ukraine is a “special military operation”, not armed attack, which is aimed at deNazification. The Great Powers give such excuses to undermine Article 2(4) of the UN Charter. The US military moved in 1954 against Guatemala describing it as a peaceful invasion; its deployment of naval forces to blockade Cuba in the name of “peaceful deployment” in 1962 and the occupation of Dominican Republic in the name of “peaceful occupation” in 1965 had the effect of undermining Article 2(4).
In international law, the right to self-defence is permitted as per Article 51 of the UN Charter, which allows the right to self-defence in a situation of armed attack. Right to self-defence does not exist if an armed attack has not yet occurred. In a departure from Article 51, the former US President George Bush (jr.) favoured the idea of pre-emptive self-defence doctrine- a doctrine not defined uncontroversially. The eminent jurists often condition 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. It leaves scope of misuse as the right to self-defence might be resorted to on the ground of generalized concerns attributable to a fear that a terrorist group is in sight of possessing Weapon of Mass Destruction (WMD) or a terrorist group might acquire or transfer WMD to another state or group.
The UK and International Law
The UK along with the US justified going to war in Iraq despite the absence of any UN authorization on the basis that Saddam Hussain possessed WMD. The UK’s intention might be pious but its violation of international law is not excusable. On the question of Northern Ireland, Britain always treated it as its internal matter and it consistently objected to placing the issue in the UN on the ground as it is precluded by Article 2(7) of the UN Charter. Britain never viewed the violence in Ireland from the lens of humanitarian law. Britain objected to potential applicability of common Article 3 to the four Geneva Conventions which governs non-international armed conflicts. It is also important to mention that the UK ratified 1977 Protocols in its early stage but did not ratify it for many years. It ratified with many reservations denying its applicability with respect to Northern Ireland.
France and International Law
International law ranks genocide as jus cogens norm from which no derogation is allowed. France has been actively involved in Rwanda since 1975 by giving political support to the Hutu government, the government who planned and carried out the genocide of the Tutsi minority in 1994 and by providing military training and armament to its forces and to militia. France has been accused of complicity in the genocide, a charge which French national authorities have denied. In response to genocide charge, the French Parliamentary mission submitted a response in 1998 that rejected any charge of criminal responsibility. The independent commission set up by the UN Secretary General which carried out inquiry into the actions of the UN during the 1994 genocide referred also, though partly, the role of France in the events leading to genocide. The independent commission of eminent personalities, instituted by the Organization of African Union, in its report submitted in 2000, labelled France as major villains, which could have prevented, halted or reduced the slaughter.
(The author is Senior Assistant Professor in International Law at the Indian Society of International Law, New Delhi. firstname.lastname@example.org Views expressed are personal and do not reflect the official position or policy of Financial Express Online. Reproducing this content without permission is prohibited).