International Order Means Playing by the Rules
January 19, 2024 BY Alfred de Zayas
(https://www.counterpunch.org/2024/01/19/international-order-means-playing-by-the-rules/)
When eight billion human beings have to live on a common planet, it is necessary to establish rules of the game, a certain modus vivendi to avoid chaos and violence. Coherent rules enable a peaceful local, regional and international development based on cooperation rather than confrontation. These rules have to be observed in good faith. Cheating is not allowed[1]. Double standards destroy the trust that we place on the institutions that administer the rules.
In the 21st Century, we know multiple rules-based orders. Internationally we have the United Nations Charter, which is akin to a world constitution. The United Nations agencies such as ILO, UNESCO and WHO have their own constitutions and enforcement organs. Regional orders are based on treaties, e.g. the Charter of the Organization of American States, the Treaties of Lisbon and Maestricht for the European Union, the Charter of the African Union, etc.
Subsidiary organs also have their statutes or “terms of reference”, e.g. the International Court of Justice, which entered into force on 24 October 1945, together with the UN Charter, the International Criminal Court, which functions on the basis of the Statute of Rome of July 1998. The Human Rights Council works on the basis of a 2006 General Assembly Resolution, the Office of the High Commissioner for Human Rights, on the basis of a 1993 GA resolution[2].
Common to all international and regional orders is the commitment of all States members to abide by the established rules. Antony Blinken’s call for an “rules-based international order” is redundant, because we already have the UN Charter, whose article 103, the supremacy clause, states that the Charter takes priority over all other “orders” such as the Treaties of the North Atlantic Treaty Organization and the Treaties of the European Union. This can be changed, but only pursuant to an amendment to the Charter under its article 108.
The authority and credibility of all “orders” and all organizations established to implement the agreed “order” depends on uniform application of the norms and good faith enforcement of the “object and purpose” of the organizations. In this essay, I will illustrate some problems that plague the work of two important United Nations institutions – the Human Rights Council and the Office of the UN High Commissioner for Human Rights.
On March 2006 the General Assembly decided to establish the Human Rights Council to replace the much-maligned Commission on Human Rights. Upon the adoption of the Resolution, the then Swiss Ambassador to the UN Peter Maurer welcomed it as a “good compromise which created a framework for a “fresh start”, for exploring new forms of engagement, and provided an opportunity to build trust, by addressing human rights in a spirit of fairness, equal treatment and avoidance of double standards. Maurer added, “it is our sincere hope that we will not fall back into old patterns of behavior”.
Maurer warned “We do not share the intransigent and maximalist approaches of certain delegations, who want to make us believe that they are the only ones fighting for ambitious human rights machinery. All too often, high ambitions are cover-ups for less noble aims and oriented, not at improving the United Nations, but at belittling and weakening it.” He stressed that the adoption of the GA resolution was an important strategic achievement for the overall United Nations reform process, adding “Indeed, change is a process, not an event”.
My own experience with the Commission on Human Rights as a staff member of the OHCHR for more than two decades, and with the new Council as the first UN Independent Expert on International Order (2012-18) confirms the concerns expressed by Ambassador Maurer. I would dare say, that the new Council has less authority and credibility than the Commission, and that the level of weaponization of human rights has reached new peaks in the Council. Double standards are not the exception, but the daily fare of the house.
The practice of “naming and shaming” frequently poisons the atmosphere in the Council, precisely because of its confrontational quality, which leaves no room for honest dialogue with an animus to reach solutions based on goodwill and common sense. Currently, the Universal Periodic Review of State reports, the reports of the mandate holders under the Special Procedures system is characterized by invective and evidence-free allegations.
What is needed is a Council that endeavors to discover the root causes of problems and is capable of formulating concrete preventive and corrective strategies. The all-too-present practice of “naming and shaming”, advocated by some delegations and even by non-governmental organizations like Amnesty International and Human Rights Watch – who should know better — has proven to be largely counterproductive[3], because more often than not the countries engaging in the “naming” have lots of skeletons in their own closets[4], and the countries being “named” have no inclination to accept the skewed narratives presented in the Council by their accusers and by their complicit helping assistants in the NGO community. Thus, the “tactic” of pointing fingers actually backfires and makes the targeted governments retrench rather than open-up.
What is needed is effective advisory services and technical assistance, a pro-active Office of the High Commissioner for Human Rights that will show governments how to eliminate obstacles to the enjoyment of civil, cultural, economic, political and social rights by the persons under their jurisdiction.
Back in 2006 the Cuban Ambassador Rodrigo Malmierca Díaz had expressed the hope that the new Council would not be befallen by the “political manipulation, hypocrisy and double standards imposed on its work by the United States and the European Union”. Ambassador Malmierca observed that the new Council was by no means a sufficient response to addressing that challenge and that nothing in the creation of the new Council would prevent a repeat of the tradition of maneuvering by the powers of the North, to unjustly condemn third-world countries[5].
Cuba had proposed the establishment of a body that would contribute to strengthening the international system of promoting and protecting human rights, through genuine cooperation, but the United States and its allies had insisted on making the “punitive and sanctioning” approach prevail, this time evinced by a provision in the text, which allowed for the suspension of the rights of those who questioned, interfered, or just disagreed, with the “hegemonic domination plans of the Empire”.
When it comes to Special Procedures, the Council would perform better, if it concentrated on thematic mandates such as the Rapporteur on Torture, Violence against Women, Independence of Judges and Lawyers, the Right to Food, the Right to Health, the Right to Development, etc. and gradually phase out the hostile country mandates, which more often than not tend to exacerbate matters. Country mandates are sensible if the purpose of the mandate is to help the country improve its human rights performance through advisory services and technical assistance, through a good faith examination of the root causes of grievances and an effort to find viable solutions. Country mandates are a waste of time and resources when the countries concerned refuse to cooperate with the country’s Rapporteur, who is perceived – sometimes with good reason (I could name many examples) — as a priori biased against them. When a country feels “picked on” and unjustly targeted, it will certainly not comply with the recommendations of any Rapporteur or “Fact-Finding Commission”. This is so because other countries whose human rights records are objectively worse, escape scrutiny and are not subject to blackballing in the institutional incarnation of a Rapporteur.
It is essential that the OHCHR and the HR Council observe a code of deontology and never, I mean never, apply double standards. The authority and credibility of OHCHR and HR Council stand and fall with the professionalism of the staff and the objectivity of its methodology[6]. It is not acceptable to focus on the violations of certain countries only, and to pass over the violations by other countries, notably the large donors to the OHCHR.
It is the responsibility of States, not only the 47 member States of the Council, to ensure that the Council is depoliticized, that it be people-centered, that it formulates constructive proposals and establishes follow-up mechanisms. While the Universal Periodic Review is useful, it must not overlap with or duplicate the work of the UN treaty bodies such as the UN Human Rights Committee and the Committee on Economic, Social and Cultural Rights. Moreover, it must go beyond being a mere diplomatic ritual and an opportunity for some countries to advance geopolitical agendas and score points against other States. When it comes to Special Procedures, the Rapporteurs and Independent Experts must rigorously adhere to their code of conduct under Council resolution 5/2.
International Order means International Cooperation
The key principle of international order must be the principle of cooperation on the basis of the UN Charter, the recognition of the sovereign equality of States and the self-determination of peoples. Let us start by recalling the commitment of all States under the UN Charter, Art. 55, to cooperate with each other in achieving peace and human rights:
“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: …. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation”
Many UN resolutions and declarations emphasize the importance of international cooperation. The 1993 Vienna Declaration and Programme of Action reaffirms in its preamble “the commitment contained in article 56 of the Charter of the United Nations to take joint and separate action, placing proper emphasis on developing effective international cooperation.”[7] Operative paragraph 4 further states: “The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation.
In the framework of these purposes and principles, the promotion and protection of all human rights is an erga omnes obligation of the international community. The organs and specialized agencies related to human rights should therefore further enhance the coordination of their activities based on the consistent and objective application of international human rights instruments.” Operative paragraph 10 reaffirms the right to development and stipulates “States should cooperate with each other in ensuring development and eliminating obstacles to development. The international community should promote an effective international cooperation for the realization of the right to development and the elimination of obstacles to development.”
Paragraphs 5 and 6 of the Outcome Document of the World Summit of 2005, Res. 60/1, emphasizes the importance of multilateralism and international cooperation.
5. We are determined to establish a just and lasting peace all over the world in accordance with the purposes and principles of the Charter. We rededicate ourselves to support all efforts to uphold the sovereign equality of all States, respect their territorial integrity and political independence, to refrain in our international relations from the threat or use of force in any manner inconsistent with the purposes and principles of the United Nations, to uphold resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial domination and foreign occupation1, non-interference in the internal affairs of States, respect for human rights and fundamental freedoms, respect for the equal rights of all without distinction as to race, sex, language or religion, international cooperation in solving international problems of an economic, social, cultural or humanitarian character and the fulfillment in good faith of the obligations assumed in accordance with the Charter.
6. We reaffirm the vital importance of an effective multilateral system, in accordance with international law, in order to better address the multifaceted and interconnected challenges and threats confronting our world…
Paragraph 48 highlights the importance of the right to development. “We reaffirm our commitment to achieve the goal of sustainable development, including through the implementation of Agenda 21 and the Johannesburg Plan of Implementation. To this end, we commit ourselves to undertaking concrete actions and measures at all levels and to enhancing international cooperation, taking into account the Rio principles.”[8]
In this context, it is also pertinent to recall the language of the revised draft UN Declaration on the Right to International Solidarity[9], which expands on the original draft contained in the 2017 report of the Human Rights Council’s Special Rapporteur on International Solidarity, Virginia Dandan [10].
Article 1 stipulates
International solidarity is an expression of unity by which peoples and individuals enjoy the benefits of a peaceful, just and equitable international order, secure their human rights and ensure sustainable development. 2. In accordance with the Charter of the United Nations, States, international organizations and non-State actors can, through cooperation in good faith, achieve common goals and solve global challenges. 3. International solidarity is a central principle in contemporary international law, based on and in furtherance of: (a) Justice, peace, sustainable development and equitable and fair partnerships between States as a basis for international cooperation…
Article 3 stipulates
The general objectives of international solidarity are to create an enabling environment for: 1. Promoting the realization and enjoyment of all human rights and fundamental freedoms; 2. Engendering trust and mutual respect to foster peace and security, promote early response and prevention of conflict, provide humanitarian assistance and engage in peacebuilding…
Article 7 stipulates
States undertake to cooperate with each other and with non-State actors to implement the right to international solidarity to prevent and overcome global challenges…. 4. States agree to take appropriate, transparent and inclusive action to ensure the active, free and meaningful participation of all individuals and peoples, including younger generations, in decision-making processes at the national, bilateral, regional and international levels on matters that affect their enjoyment of solidarity. 5. States agree to adopt and effectively implement policies and programmes, both domestically and transnationally, to promote and protect solidarity based on cultural diversity, engagement and exchange.
As an Independent Expert on International Order, I participated in the drafting of this document and advocated its adoption by the General Assembly. It is a disgrace, that to this day the Declaration on the Right to International Solidarity has not been adopted, although it eloquently expresses the most noble principles of the UN Charter. Who opposes this Declaration? The United States, the United Kingdom and the States members of the European Union. In this context, it is instructive to study the voting record on many resolutions before the General Assembly and Human Rights Council. This will reveal who is really in favour of a rules based international order, and who is ultimately against the sovereign equality of States, and human rights for all members of the human family.[11]
The High Commissioner for Human Rights
It is opportune to focus on the mandate of the UN High Commissioner for Human Rights. Following up on the recommendations of the Vienna World Conference on Human Rights, the General Assembly adopted on 20 December 1993 Resolution 48/141 creating the mandate of the High Commissioner for Human Rights. In its preambular paragraphs, the Resolution recalls “that one of the purposes of the United Nations enshrined in the Charter is to achieve international cooperation in promoting and encouraging respect for human rights”. In operative paragraph 4, the resolution enumerates the responsibilities of the High Commissioner, including “To enhance international cooperation for the promotion and protection of all human rights”[12].
According to its terms of reference, the raison d’être of the Office of the High Commissioner for Human Rights is to advance human rights by means of international cooperation, advisory services and technical assistance. It is regrettable that the secretariat of the OHCHR and the Human Rights Council seem to have forgotten this core vocation of the mandate and prefer to engage in confrontational politicking.
This is not to say that the OHCHR and the HRC should keep silent about violations of human rights wherever they occur. But the condemnation of abuses and crimes by governments cannot be the object and purpose of the OHCHR and HRC. It is crucial that the common effort to advance the enjoyment of human rights not be limited to rhetoric and lip-service to human dignity. The HR Council has proven to be largely ineffective because it is not a forum of civilized dialogue but rather an arena of gladiators where the knives are out and there are no doctors around.
Obstacles to international cooperation
Among the many obstacles to peace and international cooperation is the ongoing information war, the very high level of fake news, fake history and fake law disseminated by a complicit media that acts as an echo chamber for governments[13].
In the paragraphs above I have flagged some problems in the functioning of the HR Council’s UPR, notably the confrontational approach instead of cooperation based on the UN Charter. Double standards destroy the authority and credibility of the institutions. The “weaponization of human rights” means that human rights are being instrumentalized as weapons to attack other countries. This corruption of a noble humanistic principle is tantamount to blasphemy and sacrilege.
Conclusions and recommendations
I propose that the HR Council’s thematic mandates be strengthened, that confrontational country mandate be phased out. All UN mandate holders must rigorously observe the code of conduct (Resolution 5/2). A code of conduct for NGOs should be drafted and adopted by the General Assembly. Ngo’s that violate their code of conduct should be promptly stripped of consultative status, especially when they have engaged in ad hominem attacks or disseminated evidence-free allegations. The procedures of the UPR process should be revised to avoid duplication and to ensure constructive discussion and avoid the petulant and hypocritical tactic of “naming and shaming”. The method of appointing Rapporteurs should be revised to ensure that the best candidates are selected and not the “politically correct” candidates, not only the US and Europe-centered candidates (regardless of nationality). It is crucial to democratize the HR Council’s “Special Procedures” by ensuring that there is not only gender-balance, but also a balance of legal approaches and philosophies. An “Observatory” to ensure that double standards are not accepted in the debates should be established, a kind of “double-standards watch”. A follow-up procedure should be set up to monitor whether any of the recommendations of Rapporteurs are actually being followed, or whether the rapporteurs are just an assembly of loud-mouthed “namers and shamers” or even worse – irrelevant Cassandras.
Bottom line: International order means international cooperation. This entails goodwill, which currently is in short supply. It entails a commitment to playing by the same rules and not constantly trying to take advantage of the other guy.
Civil society should contribute to a rediscovery of the spirituality of the Universal Declaration of Human Rights, demand that their governments channel their tribal instincts into constructive cooperation paradigms. I cannot help but think of Yuval Noah Harari’s Sapiens and Homo Deus. Indeed, if we want to survive the 21st century, we had better get our act together and rediscover the advantages of cooperation and compromise.
Notes.
[1] See « A Culture of Cheating” https://www.counterpunch.org/2022/01/28/a-culture-of-cheating-on-the-origins-of-the-crisis-in-ukraine/
[2] https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F48%2F141&Language=E&DeviceType=Desktop&LangRequested=False
[3] https://publicseminar.org/essays/why-naming-and-shaming-is-a-tactic-that-often-backfires-in-international-relations/
https://journals.sagepub.com/doi/abs/10.1177/1369148120948361
[4] https://www.ohchr.org/en/statements/2013/11/statement-alfred-maurice-de-zayas-independent-expert-promotion-democratic-and
Bideoa: https://youtu.be/V9E6t9a7-Fs
[5] https://press.un.org/en/2006/ga10449.doc.htm
[6] See Chapters 2 and 3 of Alfred de Zayas, The Human Rights Industry, Clarity Press, 2023. https://www.claritypress.com/product/building-a-just-world-order/
[7] https://www.ohchr.org/en/instruments-mechanisms/instruments/vienna-declaration-and-programme-action
[8] https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F2625(XXV)&Language=E&DeviceType=Desktop&LangRequested=False
[9] https://www.ohchr.org/sites/default/files/documents/issues/solidarity/reviseddraftdeclarationrightInternationalsolidarity.pdf.
[10] Annex to Report A/HRC/35/35.
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/099/39/PDF/G1709939.pdf?OpenElement
[11] A de Zayas, The Human Rights Industry, Chapter 8, “The Bottom Line”, Clarity Press, 2023.
[12] https://undocs.org/Home/Mobile?Final
[13] A de Zayas, chapter 7 The Human Rights Industry, Clarity Press, 2023.
Alfred de Zayas is a law professor at the Geneva School of Diplomacy and served as a UN Independent Expert on International Order 2012-18. He is the author of twelve books including “Building a Just World Order” (2021) “Countering Mainstream Narratives” 2022, and “The Human Rights Industry” (Clarity Press, 2021).
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UN Charter, UN Credibility and Unlawful Unilateral Coercive Measures
March 27, 2024 BY Alfred de Zayas
Photograph Source: Mojnsen – CC BY-SA 4.0
Statement before the United Nations Security Council, Arria Formula Meeting, 25 March 2024.
Excellencies, distinguished delegates,
The unlawfulness of unilateral coercive measures imposed by certain countries against other States, businesses and individuals has been documented in United Nations studies going back to the seminal report issued in the year 2000 by the Subcommission on the Promotion and Protection of Human Rights[1], the 2012 report of High Commissioner Navi Pillay[2], and General Comment Nr. 8 of the Committee on Economic Social and Cultural Rights[3].
Dozens of General Assembly Resolutions, most recently of 19 December 2023[4], resolutions of the Human Rights Council, most recently of 11 October 2023[5], identify the specific violations of international law inherent in UCMs and the threat they pose to international peace and security. These resolutions, adopted with ample majorities, urge all states to lift UCMs. Thirty one GA resolutions condemn the US embargo against Cuba, most recently on 2 November 2023[6].
Notwithstanding the clear will of the global majority that UCMs be abolished, a number of States violate these resolutions with impunity and continue imposing coercive measures with unlawful domestic and extra-territorial effects. Circumvention of these unlawful UCMs is subject to draconian penalties. This coercion-based international order usurps the functions of the United Nations and undermines its authority and credibility.
It is important to recognize that the semblance of law is not law, that not every executive order is legitimate or deserves to be obeyed, as we know from Sophocles Antigone[7] and saw confirmed in the judgment of the Third Nuremberg Trial, the Justices Trial[8].
Many Nazi laws were “laws”, but in name only. They were dictates that violated the essence of justice. So too European and US laws on slavery and the slave trade, the laws imposed by colonial powers, and the laws of Apartheid.
Indeed, when laws do not serve justice but rather geopolitical domination, they subvert the rule of law itself, and what we call civilization[9]. Far from bending to such unlawful measures, all civilized persons have a duty to resist them.
Civilization demands that States, individuals and enterprises resist the hijacking of the administration of justice, the instrumentalization of law for power and injustice, including through unlawful UCMs.
It is documented that UCMs engender gross violations of human rights, including the right to life, food, health, water and sanitation. UCMs have impeded prompt and effective action against pandemics like Covid-19, have aggravated outbreaks of cholera, polio, tuberculosis, hindered life-saving cancer treatment and are responsible for hundreds of thousands of deaths worldwide[10].
We are witnessing retrogression in the respect owed to international law and human dignity. Government lawyers should be advising their governments how best to comply with international treaties and norms, and not how to find loopholes and weasel out of international obligations.
Notwithstanding the lethal impacts of UCMs, government lawyers in some countries downplay them in an attempt to mislead democratic audiences into believing that UCMs serve legitimate purposes. It is profoundly cynical to invoke human rights in an attempt to justify measures that demonstrably violate the rights of the most vulnerable.
Victims and victimizers are here reversed. The practise of UCMs manifests how legal concepts and language have been corrupted, how human rights are being weaponized to destroy human rights. Cognitive dissonance becomes the new normal. No, the narrative of a purported good end is false. The geopolitical end does not justify the criminal means.
The diagnosis is clear: UCMs generate humanitarian crises, legal and social chaos, leaving victims without effective access to justice and without remedies. UCMs are incompatible with the noble principles of the UN Charter[11] and the Constitutions of many UN agencies including UNESCO and WHO.
Let us therefore escape from the epistemology trap, and stop referring to UCMs as “sanctions”. The only legal sanctions are those imposed by this Security Council. Everything else constitutes the unlawful use of force in contravention of the letter and spirit of the UN Charter, in particular article 2, paragraph 4.
Moreover, the word “sanctions” implies that the State imposing them has the moral or legal authority to do so. This is not the case as exposed by UN Special Rapporteurs Dr. Idriss Jazairy, Dr. Alena Douhan, Dr. Michael Fakhri and others.
I will not further elaborate on our diagnosis but prefer now to formulate pragmatic proposals how to rescue the international order and how to give recourse and remedy to the victims.
Bearing in mind that some States persist in applying UCMs to about a third of the population of the planet, and that hitherto they have done this with impunity, I propose that:
1) UN Agencies like ILO, UNDP, UNEP, UNESCO, UNICEF, WHO henceforth collect, quantify and evaluate the harm caused by UCMs. Impact assessments should be widely publicized.
2) An international observatory should be established to document the impacts of UCMs. This observatory or “UCM Watch” should function under the UN Human Rights Council and be serviced by OHCHR, which should keep a database and establish a monitoring mechanism.
3) The General Assembly should invoke article 96 of the UN Charter referring the legal questions associated with UCMs to the ICJ for an advisory opinion on their illegality and the level of compensation to be paid to the victims. The ICJ should also consider whether the humanitarian crises and thousands of deaths caused by UCMs constitute “crimes against humanity” for purposes of Article 7 of the Statute of Rome.
4) Pursuant to article 9 of the 1948 Genocide Convention[12], States parties should refer the ICJ the question whether the deliberate creation of conditions that in effect destroy in whole or in part a group plausibly constitutes genocide. The requirement of “intent” can be inferred from the foreseeability of the deaths resulting from UCMs. The ICJ judgement in Bosnia v. Serbiaimposes an obligation to prevent[13].
5) The Inter-state complaints procedures of several UN treaty bodies should be engaged. Article 41 of the International Covenant on Civil and Political Rights grants jurisdiction to the Human Rights Committee to examine inter-state complaints concerning grave violations of human rights, including the right to life. In the absence of reservations to this article, the competence of the Human Rights Committee is prima facie established. The Optional Protocol to the International Covenant on Economic Social and Cultural Rights would also provide for inter-state complaints pursuant to Article 10[14].
6) The laws of many countries impose a civic obligation to help persons in grave danger to life. These laws are sometimes referred to as duty of rescue laws.[15] Undoubtedly UCMs entail a grave danger to life, and States should ensure that individuals and businesses under their jurisdiction abide by such duty to help laws and do not become complicit in UCM crimes.
7) States should exercise diplomatic protection on behalf of individuals and businesses penalized by States that impose UCMs.
Excellencies,
If we want that international institutions, tribunals and other mechanisms function properly, we must ensure that all parties recommit to the Purposes and Principles of the United Nations. We must escape the epistemology trap and reject the attempt to camouflage UCMs as “sanctions”, reject the unethical demand for “compliance” with what are in reality totalitarian commands that violate the sovereign equality of States and the self-determination of peoples.
I invite all here present to rediscover the spirituality of the Universal Declaration of Human Rights and ensure that the authority and credibility of the United Nations is strengthened by observance of UN resolutions, and not subverted by complicity in tolerating UCMs, which in a very real sense manifest a rebellion against the UN Charter and entail crimes against humanity. I urge you to work constructively at cooperation and reconciliation in this common planet of ours.
I thank you for your attention.
Notes.
[1] E/CN.4/Sub2/2000/33, https://digitallibrary.un.org/record/422860
[2] A/HRC/19/33, https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F19%2F33&Language=E&DeviceType=Desktop&LangRequested=False
[3] E/C.12/1997/8
https://www.refworld.org/legal/general/cescr/1997/en/52393
[4] https://www.un.org/en/ga/78/resolutions.shtml
[5] https://www.ohchr.org/en/hr-bodies/hrc/regular-sessions/session54/res-dec-stat
[6] https://www.undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F78%2F7&Language=E&DeviceType=Desktop&LangRequested=False. Res. 78/7
[7] https://classics.mit.edu/Sophocles/antigone.html
[8] https://www.archives.gov/files/research/captured-german-records/microfilm/m889.pdf
[9] https://iihl.org/the-laws-of-humanity/
https://www.icrc.org/en/doc/assets/files/other/irrc-844-coupland.pdf
https://link.springer.com/chapter/10.1007/978-94-6265-299-6_3
Jeffrey Sachs, The Price of Civilization, Random House, New York 2011.
[10] https://cepr.net/images/stories/reports/venezuela-sanctions-2019-04.pdf
[11] See also the 25 Principles of International Order, published as Chapter 2 of A. de Zayas, Building a Just World Order, Clarity Press, 2021.
[12] It is not possible to submit case against the US under article 9, because of US submitted a reservation against article 9 when ratifying the Convention in 1992. But it is possible to submit cases against Canada, UK, France, Germany, and all other countries imposing UCMs and causing suffering and death in countries like Cuba, Nicaragua, Syria, Venezuela, Zimbabwe, etc.
[13] https://icj-cij.org/case/91
[14] https://www.ohchr.org/en/instruments-mechanisms/instruments/optional-protocol-international-covenant-economic-social-and
[15] https://www.thelaw.com/law/good-samaritan-laws-the-duty-to-help-or-rescue-someone.218/
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US Vetos Palestine’s Bid for UN membership
April 19, 2024 BY Alfred de Zayas
Ambassador Robert Wood casting the US veto of the draft resolution on admitting Palestine as a member nation of the UN.
On 18 May the Security Council was seized of a resolution that would have granted UN membership to Palestine.Twelve members of the SC voted in favor of the resolution, while two countries – the UK and Switzerland – abstained. The US vetoed it.[1]
I would have been surprised if the US had voted in favor or abstained. The voting record at the Security Council documents dozens upon dozens of unjustified vetoes by the US, mostly to shield Israel from being called to account, from being subjected to sanctions as once another Apartheid State, South Africa, was[2].
The intransigent attitude displayed again and again by the United States is contrary to the letter and spirit of the UN Charter, in particular articles 1, 2, 4 and 27. What to me would seem more urgent would be a resolution to expel Israel from membership in the United Nations, as provided for in Article 6 of the Charter. But, of course, the US would also veto such a hypothetical resolution.
Nonetheless, I could envision the General Assembly withdrawing the accreditation of the Israeli diplomats at the United Nations. This is within the GA’s competence and does not require a Security Council resolution, as was the case when the credentials of South African Ambassadors were rejected in the 1970s and 80s because of their Apartheid policies[3]. Rejecting Israeli credentials would be justified, since Israel is guilty not only of Apartheid but also of genocide.
Whereas the Global Majority condemns Israel, three cases are before the International Court of Justice, and several have been submitted to the International Criminal Court, the US persists in its negationism of Israeli crimes and evidently enjoys its exceptionalism in being “one-man out”?
It seems that the US is trapped in its own political and psychological web. The US has lost the capacity to think and act outside the box, it is condemned to committing the same errors and exacerbating the already toxic situation. Many American observers including myself have indicated that after the US government took the unwise decision to enter into an alliance with Israel, this effectively meant subordinating US interests to those of Israel. It is and was predictable that situations would arise where the US would not be free to pursue its own priorities, but would be bound to support geopolitically unwise policies, abuse the veto power in the Security Council, and act contrary to the letter and spirit of the UN Charter.
For decades the US has supported patently illegal Israeli measures at an exorbitant cost to the US economy and US prestige in the world stage. The Global majority perceives the US and Israel as the greatest dangers to the peace and security of mankind[4]. US actions in the UN and elsewhere have cemented this perception.
The US and Israel are rightly perceived as dangerous bullies. There is no love lost for the US and Israel. No doubt, the US alliance with Israel has caused the US to lose authority and credibility in the eyes of the Global Majority, precisely because the US has defended the indefensible, justified the unjustifiable, engaged in apology of genocide. The US alliance with Israel makes it complicit in the illegal Israeli settler-colonialism, in its Apartheid policies, in all the war crimes and crimes against humanity committed by Israel. This complicity triggers civil and penal liability, which in due course will have to be addressed. The International Law Commission’s Draft Code on State responsibility [5] will someday be applied against the United States, and Israel which will owe trillions of dollars to the billions of human beings who have been victims of US imperialism and neo-colonialism.
In the history of the United States, nothing has been as damaging as its “alliance” with a retrograde State that pretends to implement Biblical prophecies and destroy its Arab neighbors. Three thousand years after the conquest of the “promised land”, Prime Minister Netanyahu is now following the narratives of the book of Joshua and the destruction of the Canaanites[6]. It is not surprising that Netanyahu relies on Biblical stories of the destruction of the people of Amalek by the Israelites[7]. Amid the genocidal excesses committed by Israel on the people of Gaza, Netanyahu quoted from First Samuel 15:3, saying, “You must remember what Amalek has done to you, says our Holy Bible. ‘Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys’ It is little wonder that the International Court of Justice is now confronted with this statement – one of so many – that illustrate the Israeli “intent” to destroy “in whole or in part” the targeted group.[8]
Although the US and Israeli interests do not converge, there is a dynamic of complicity and one crime begets another. Friedrich Schiller wrote in his Drama Piccolomini — das ist der Fluch der Bösen Tat, dass sie fortzeugend Böses muss gebären — that is the curse of the evil act, that it will continue to engender further harm[9]. In fact, the US government has gradually become dependent on its “alliance” with Israel, which is more of a one-way road. Notwithstanding the daily efforts of the mainstream media to whitewash Israeli crimes and to give a veneer of legitimacy to the genocide, more and more Americans are coming to understand that “there is something rotten in the state”[10]. In practice, the US government is quasi in the service of Israel and not in the service of the American people.
The United States is caught in abstruse ideologies that escape all rationality. Israel is not only an Apartheid State, it is a neo-colonial State with policies that are incompatible with the UN Charter, the 1949 Geneva Red Cross Conventions, the 1977 Additional Protocols, and with international law in general.
Perhaps the saddest thing is that the American people are essentially disenfranchised, because both political parties are caught in the Israeli web. Whether you vote Republican or Democrat, you only get candidates that will continue supporting Israel. Indeed, saying a good word about the right of Palestinians to have their own State, the idea of seeing the Palestinians as human beings entitled to the same human rights as we claim for ourselves, is rejected by the mainstream media. Whoever supports the Palestinians is ostracised and accused of anti-Semitism.
The American people are prey to the Orwellianism of the New York Times and Washington Post. Whether you vote Republican or Democrat, it is the military-industrial-financial-academic-media-digital complex that rules over us. Indeed, those who are elected do not govern, and those who do govern are not elected.
Notes.
[1] https://news.un.org/en/story/2024/04/1148731
[2] https://www.un.org/securitycouncil/sanctions/information
https://sahistory.org.za/dated-event/un-lifts-mandatory-sanctions-against-sa
[3] https://www.nytimes.com/1973/10/06/archives/south-africa-is-rebuffed-by-un-but-not-expelled-south-africa.html
[4] https://truthout.org/articles/people-worldwide-name-us-as-a-major-threat-to-world-peace-heres-why/
https://www.theguardian.com/world/2021/may/05/us-threat-democracy-russia-china-global-poll
https://www.aljazeera.com/news/2023/12/7/un-secretary-general-invokes-article-99-on-gaza
[5] https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
[6] https://www.biblegateway.com/passage/?search=Joshua%201&version=NIV
[7] https://www.abc.net.au/news/2024-01-31/biblical-story-amalek-south-africa-icj-genocide-case-israel/103403552
[8] https://www.msn.com/en-us/news/world/netanyahu-openly-calls-for-genocide-citing-the-bible-go-attack-the-amalekites/ar-AA1j282g
[9] https://archive.org/details/thepiccolomini06786gut
[10] Shakespeare, Hamlet, Act-I, Scene-IV
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International Day of Multilateralism and Diplomacy for Peace
April 26, 2024
On 24 April 2024, a well-attended conference took place at the United Nations Office in Geneva to commemorate International Day of Multilateralism and Diplomacy for Peace, a tradition that goes back to the adoption by the UN General Assembly of Resolution 73/127, which reaffirms the UN Charter and the purposes and principles of the UN, especially the commitment to settle disputes through peaceful means (Art. 2(3) of the Charter) and the determination to save succeeding generations from the scourge of war[1].
In the light of the ongoing war in Ukraine and the genocide being perpetrated by Israel in Gaza with the complicity of the United States, Canada, UK, France, Germany and other States, the holding of this conference was particularly relevant. The conference was attended by two dozen Ambassadors, numerous academics and representatives of non-governmental organizations.
I had the opportunity to speak on the subject of “Navigating the present: The Vital Role of International Law in Today’s Global Landscape.” I stressed that the UN Charter is akin to a world constitution, the only rules-based international order that is universally recognized, notwithstanding the fact that some powerful states systematically ignore it. Such disregard of the Charter and of fundamental principles of international law has had a detrimental impact on the authority of the United Nations, whose credibility is in decline since the demise of the Soviet Union and the brazen display of a “winner takes all mindset” by the United States in the spirt of Francis Fukuyama’s The End of History [2].
Unilateralism became the rule after the dissolution of the Soviet Union and the Warsaw Pact. The unipolar world enforced submission to the will of the United States. The then-almighty dollar was instrumentalized to control international finance and trade. Dependence on the dollar effectively hollowed out the sovereignty of many states. Multilateralism discretely disappeared.
It did not have to be like that. In the spirit of the UN Charter and the Universal Declaration of Human Rights, the world could have flourished through disarmament, including nuclear disarmament. Civil, cultural, economic, political and social rights could have been promoted worldwide and extreme poverty could have been eliminated. Military-first economies could have been converted into human security economies, and millions of jobs would have been created in all fields of human activity[3]. The funds released by slashing military budgets worldwide would have made the Millennium Development Goals[4] of 2000 and the Sustainable Development Goals[5] of 2015 easily attainable.
This dream of disarmament for development was smashed by President Bill Clinton, who preferred “soft” and hard US power to advance the interests of the military-industrial-financial-media-digital complex, which was also served by academics and ideologues like Zbigniew Brzezinski, whose book The Grand Chessboard[6] reflected the jubilant mood of the self-serving and self-deceiving hegemon.
The world has evolved since the 1990’s and the unipolar fantasies have been gradually dissipating. One can see light at the end of the tunnel, since the days of unilateralism are coming to an end. The crimes of unilateralism, however, have multiplied, accompanied by numerous military interventions and coups d’état throughout of the world.
It seems that the global majority is waking up. BRICS, the Belt and Road Initiative and other geopolitical developments prove that a multipolar world order is emerging. Indeed, multilateralism is necessary to sustain this process and ensure that the promises of the UN Charter are realised.
In this context I cited from General Assembly Resolution 73/127, adopted on 12 December 2018 by a recorded vote of 144 in favour, 2 against and no abstentions. This resolution, submitted by the Non-Aligned Movement, declared 24 April “International Day for multilateralism and diplomacy for peace.”
The voting record of States in the General Assembly and the Human Rights Council illustrates which countries are in favour of multilateralism and peace, and which countries are against. The only two votes cast against Res. 73/127 were those of the United States and Israel. The self-same two countries were also the only objectors to the adoption of the nearly universal GA Res. 78/7 condemning the illegal US embargo against Cuba. This was the 31st such resolution, and all of them have been violated by the US in total impunity.
GA Resolution 78/202, which condemned unilateral coercive measures (UCMs, falsely referred to as “sanctions”), was adopted by 131 votes in favour and 53 against. Here it was not only the US and Israel who voted against, but also many European countries and their vassals who also participate in this illegal practice of imposing UCMs that by now have a long history of causing suffering and death in numerous targeted countries. Indeed, UCMs demonstrably kill. On 25 March 2024 these issues were extensively discussed at an Arria Formula Meeting at the Security Council[7], about which I already reported in Counterpunch.[8]
Chapter 8 of my book The Human Rights Industry[9] is devoted entirely to an analysis of the voting record of States, and it proves that some countries have not abandoned their animus dominandi, their preference to bully, give orders, impose UCMs, and their refusal to settle disputes by peaceful means.
In my presentation I emphasized that the most urgent task of the United Nations is to facilitate ceasefires and peace negotiations in a spirit of compromise. Secretary General Antonio Guterres and High Commissioner for Human Rights Volker Türk agree that prevention is better than cure, and that it is the task of United Nations agencies to make constructive proposals to solve grievances before they degenerate into war. It is crucial to break the vicious circle of crime and reprisal and devise means of coexistence and reconciliation.
I am persuaded that unless our leaders through their provocations and escalations end up causing World War III — as our ancestors stumbled into World Wars I and II — there will be some kind of settlement of the on-going armed conflicts. There will be a post-war period in Ukraine, Israel, Sudan, Congo, Armenia-Azerbaijan, Niger, the Sahel, Syria, Yemen, and other countries at war. We must prepare for this post-war period remembering the words of the Constitution of UNESCO That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed”[10].
What is multilateralism?
Simply put – cooperation among multiple players on the basis of sovereign equality. It entails adherence to a common political project based on the respect of a shared system of norms and values. Multilateralism is based on founding principles such as consultation, inclusion and solidarity. It requires goodwill, good faith and a commitment to respect and enforce legal rules. When legal rules are violated with impunity, when judgments and rulings of the International Court of Justice are ignored, when Security Council and General Assembly resolutions are not implemented, the whole system suffers. There is too much lip service for the concept of the rule of law, but it is being eroded domestically and internationally.
It sounds like a platitude, but it is obvious that global problems require global solutions, which cannot be imposed by one country but must be negotiated. The world urgently needs solutions for climate, food, energy and financial problems. We must be ready to address pandemics and natural disasters, including an asteroid impacting on Earth. We are all in this boat together. It is the function of diplomacy to facilitate solutions through multilateral give-and-take, through common sense compromises that may render a win-win arrangement.
The 25 Zayas Principles of International Order serve peace and security
My seventh thematic report to the Human Rights Council, presented in March 2018 (A/HRC/37/63), formulated principles of International order, which summarized my theoretical and practical approach to the subject in the light of the empirical experience of administering the mandate. These norms of international law and practice derive their legal basis from the Principles and Purposes of the UN Charter, key General Assembly resolutions (notably resolutions 2131 (XX), 2625 (XXV), 3314 (XXIX), 39/11, 55/2 and 60/1), core UN Conventions, inter alia the Convention on the Prevention and Punishment of the Crime of Genocide, Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic and Consular Relations and other universal treaties such as the Geneva Red Cross Conventions and Additional Protocols. They reflect the progressive development of international law as created and applied by the United Nations and its specialized agencies, and propose a vision of a peaceful, democratic and equitable international order based on the cooperation of all stakeholders – both States and non-State actors, sovereign countries, inter-governmental organizations, transnational enterprises, peoples and minorities striving for self-determination, indigenous peoples, religious institutions and civil society.
These guiding principles should be understood in a holistic way, rejecting any kind of “fragmentation” of international law into “stand-alone” legal regimes in competition with each other. The authority and credibility of the system of international law depends on its internal coherence and on rules of interpretation that recognize a logical hierarchy as well as a horizontal mutual reinforcement. Admittedly, these standards encompass not only hard law but also soft law and general notions of ethics and justice. Like Virginia Dandan’s Draft Declaration on the Right to International Solidarity,[11] the UN Declaration on the Right of Indigenous Peoples,[12] the Commission on Human Right’s Declaration on the illegality of forced population transfers,[13] and John Ruggie’s Guiding Principles on Business and Human Rights,[14] the Zayas principles on international order are not exhaustive and are intended to serve as useful criteria or standards to evaluate and better understand the complexities of the evolving international order. One should also keep this caveat in mind: Principles and norms are not self-executing. Indeed, as the Bible has not resolved the problem of sin, and the UN Charter has not ended aggressive war and exploitation, these principles shall not eo ipso guarantee a democratic and equitable international order in the 21st century. Realistically speaking, even if all of these principles and declarations one day were to become UN treaties, they would still need political will, good faith, and an effective enforcement mechanism in order to make a difference.
The first principle reads as follows:
The paramount principle of international order is Peace.
The Preamble and Articles 1 and 2 of the Charter stipulate that the principal goal of the Organization is the promotion and maintenance of peace. This entails the prevention of local, regional and international conflict, and in case of armed conflict, the deployment of effective measures aimed at peace-making, reconstruction and reconciliation. The production and stockpiling of weapons of mass destruction constitutes a continuing threat against peace.[15] Hence, it is necessary that States negotiate in good faith for the early conclusion of a universal treaty on general and complete disarmament under effective international control[16]. Peace is much more than the absence of war, and necessitates an equitable world order, characterized by the gradual elimination of the root causes of conflict, including extreme poverty, endemic injustice, privilege and structural violence. The motto of the International Labour Organization deserves being recognized as the universal motto for our time: si vis pacem, cole justitiam (if you want peace, cultivate justice). Moreover, peace must be recognized as an enabling right, a pre-condition to the enjoyment of civil, cultural, economic, political and social rights.[17]
The wars in Ukraine and Gaza
I went on to address issues arising from the War in Ukraine, which I explained was eminently avoidable. It was the unilateralism of the United States, the non-stop provocations by NATO and the refusal of Ukraine to implement its treaty obligations under the Minsk Agreements that finally led to armed conflict. The intransigence of the US and NATO have made a ceasefire and multilateral peace negotiations impossible, notwithstanding the mediation of Turkish President Erdogan and the former Israeli Prime Minister Bennett.
The war in Gaza is the result of violations by Israel of countless UN resolutions, including Security Council resolution 242[18], and the failure by Israel to implement any of the recommendations formulated in the Advisory Opinion of the International Court of Justice or 9 July 2004.[19] The war did not start on 7 October 2023, but already in 1947-48 with the Nakba[20] and the ethnic cleansing of hundreds of thousands of Palestinians from their home. Israel is an Apartheid state[21] and the situation of the population of Gaza, illegally sieged by Israel since 2007, makes us think of the Warsaw ghetto in 1943 and the effort by the hapless Jews to break the Nazi siege [22]. They were massacred by the Nazis, as now the Gaza civilians are being massacred by the IDF.
Let us leave it to the International Court of Justice to find that Israel is committing Genocide[23], that the United States, Canada, UK, France and Germany[24] are complicit in the genocide, and make concrete proposals for reparation to the victims.
Conclusions
How can we contribute to enhancing multilateralism and peace?
1) We must win the information war. We are swimming in an ocean of lies about the conflicts in Ukraine, Israel and elsewhere. We are swimming in fake news, fake history, fake law, fake diplomacy by a media largely in the service of Washington and Brussels.
2) Countries should promote de-dollarization in all fields in order to break the continuing financial and trade blackmail by the US.
3) The international community should insist on proper financing of the United Nations and its agencies – from the regular budget. In particular UNRWA must be properly funded. The countries that have withheld funding from UNRWA are guilty of complicity in the genocide of innocent Palestinian civilians.
4) The international community must cooperate to prevent future armed conflict by ensuring multilateral negotiations. My 25 Principles of International Order[25] focus on prevention of violations of human rights and strict adherence to treaty obligations, respect for Security Council and General Assembly Resolutions, implementation of judgments and advisory opinions of the International Court of Justice.
5) More States should join South Africa in its ICJ case against Israel.
6) Multilateral pressure on Israel is necessary to ensure an immediate ceasefire and adequate compensation to the victims.
7) States should consider breaking diplomatic and trade relations with Israel. Genocide is the ultimate crime. There is no “business as usual” when a State is committing genocide and other States are delivering the weapons used to perpetrate the genocide.
8) The General Assembly should withdraw the credentials of Israeli diplomats and take away their vote in the General Assembly, as was done against the Apartheid regime in South Africa in 1973.
9) The General Assembly should invoke article 96 of the UN Charter and elevate legal questions to the ICJ for advisory opinions on many pressing issues, including the illegality of unilateral coercive measures, the fact that UCMs destroy the benefits of globalization, sabotage supply chains, generate humanitarian crises.
10) The ICJ should declare that UCMs constitute crimes against humanity, because UCMs kill by the tens of thousands, as documented in submissions to the International Criminal Court, which thus far Prosecutor Karim Khan has apparently put on ice.
11) The General Assembly should adopt the draft Convention on the Right to Development and the draft declaration on international solidarity[26].
12) Countries should refuse to implement UCMs and exercise diplomatic protection on behalf of individuals and enterprises subject to illegal UCMs. Example: Switzerland should prohibit its principal bank UBS to submit to illegal US extra-territorial legislation. Switzerland should defend the rights of its enterprises and push back against illegal US UCMs. Switzerland should take legal action against the US before the ICJ, the Permanent Court of Arbitration, the WTO Dispute Tribunal and other venues.
13) A multilateral fund should be established to assist weaker countries and enterprises who refuse to implement UCMs and are subjected to penalties by the US and other countries imposing UCMs.
14) Bearing in mind that human rights must be justiciable, juridical and enforceable, the international community must work together to strengthen regional and international adjudication by organs such as the Inter-American Court of Human Rights, the European Court of Human Rights, the African Court of Human and Peoples Rights, the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights, etc.
15) A global pact on education for multilateralism and peace should be established.
Notes.
[1] https://www.un.org/en/ga/73/resolutions.shtml
[2] https://theconversation.com/the-end-of-history-francis-fukuyamas-controversial-idea-explained-193225
[3] See the 2014 Report of the UN Independent Expert on International Order to the UN Human Rights Council https://documents.un.org/doc/undoc/gen/g14/087/30/pdf/g1408730.pdf?token=pBl9XUT9aPz1D2Mglm&fe=true
[4] https://www.un.org/millenniumgoals/
[5] https://sdgs.un.org/goals
[6] The Grand Chessboard: American Primacy and Its Geostrategic Imperatives. New York, Basic Books, 1997
[7] https://www.securitycouncilreport.org/un-security-council-working-methods/arria-formula-meetings.php
[8] https://www.counterpunch.org/2024/03/27/un-charter-un-credibility-and-unlawful-unilateral-coercive-measures/
[9] https://www.claritypress.com/product/human-rights-industry/
[10] https://www.unesco.org/en/articles/constitution-united-nations-educational-scientific-and-cultural-organization-2022-edition
[11] https://undocs.org/A/72/171
[12]https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
[13] Annex to document E/CN.4/Sub.2/1997/23.
[14] https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
[15] The UN Human Rights Committee regularly issues “general comments” to elucidate the scope of its provisions. See General Comments Nr. 6 and 14 on the right to life, which condemn the production and stockpiling of weapons of mass destruction that may destroy life on Earth. https://www.refworld.org/docid/453883f911.html
https://www.refworld.org/docid/45388400a.html
[16] See my 2014 report to the Human Rights Council A/HRC/27/51, paras. 6, 16, 18 and 44. The United Nations Treaty on the Prohibition of Nuclear Weapons entered into force on 22 January 2021. https://www.un.org/disarmament/wmd/nuclear/tpnw/
https://news.un.org/en/story/2020/10/1076082
[17] Alfred de Zayas, “Peace” in William Schabas (ed.), Cambridge Companion to International Criminal Law, Cambridge 2016, pp. 97-116.
[18] http://unscr.com/en/resolutions/242
[19] https://www.icj-cij.org/case/131
[20] https://www.aljazeera.com/news/2023/5/15/the-nakba-five-palestinian-towns-massacred-75-years-ago
[21] Jimmy Carter, Palestine: Peace not Apartheid, Simon & Schuster, New York, 2006. We can have peace in the Holy Land, Simon & Schuster, New York, 2009.
[22] https://www.nationalww2museum.org/war/articles/warsaw-ghetto-uprising
[23] https://www.icj-cij.org/case/192 South Africa v. Israel
[24] https://www.icj-cij.org/case/193 Nicaragua v. Germany.
[25] Chapter 2, Building a Just World Order. https://www.claritypress.com/product/building-a-just-world-order/
[26] https://www.ohchr.org/sites/default/files/documents/issues/solidarity/reviseddraftdeclarationrightInternationalsolidarity.pdf
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A Rebellion Against Law and Civilization: Genocide and Its Accomplices
May 17, 2024
Civilization is a process that progressively codifies the rules and regulations necessary for living together in peace, the process that continually engenders associations and commissions, mechanisms for monitoring and implementation of the norms.
The United Nations Charter is the best rules-based order we have, a kind of world constitution that all peoples should recognize and all States should enforce. Civilization means the rule of law, due process, transparency, accountability, justice, reparation, reconciliation, and international solidarity. The survival of mankind depends on good faith implementation of treaties and agreements, on pro-active cooperation, based on a conviction that we all share the same human dignity, the same needs and aspirations, and that we must somehow coexist on this one planet Earth. With goodwill conflicts can be prevented and grievances can be addressed in a timely fashion and resolved.
The UN Charter and civilization itself are under mortal attack by what I would call an open rebellion against international law and morals. Provocations, aggressions, escalations, wars culminating in crimes against humanity and genocide as defined in the 1948 Genocide Convention[1] are destroying the fabric of the domestic and international legal order that humanity has woven and interwoven over the centuries.
The deliberate murder of tens of thousands of innocent civilians by Israel in Gaza, the brazen disregard of Security Council and General Assembly Resolutions as well as orders and advisory opinions of the International Court of Justice manifest the general breakdown of international morals.
This revolt against law and justice is further evidenced by the complicity of a number of powerful Western States engaged in aiding and abetting the genocide in Gaza, not only by delivering lethal weapons and ammunition, but also by providing political, economic, diplomatic, academic support to the perpetrators. Among the aiders and abetters of the crimes, are the United States, Germany and the United Kingdom. Their responsibility is heightened by their endorsement of Israel’s actions in the media and before the United Nations, blocking effective action by the Security Council, and attempting to negate or banalize the genocide.
Some prominent politicians in the US, Germany and UK have engaged in “incitement” to hatred[2]against the Palestinian people, entailing further violations of the 1948 Genocide Convention. This reckless incitement has been echoed and endorsed by many newspapers and media outlets that have thereby become complicit in genocide by contributing to the “culture of hatred” that renders genocide and crimes against humanity possible.
Complicity in the murder of an individual is a grave criminal offense. The legislation of all civilized countries codify the crime and provide for investigation and prosecution. Facilitating the commission of mass murder, however, is not always perceived the same way. The enablers of crimes against humanity and genocide, the military-industrial complex, the members of the boards of directors of corporations like Lockheed/Martin, Boeing, Raytheon, Northrop Grumman, General Dynamics and other war-profiteers that earn billions from armed conflict[3], are not always perceived as felons. Their actions are seen as a form of doing “business” and, if at all, perceived as “white-collar crimes”.
Article III e of the 1948 Genocide Convention lists “complicity” as one of the prohibited crimes, precisely because complicity frustrates prevention and facilitates the execution of the crime.[4]Professor William Schabas elaborates:
“Article III lists four additional categories of the crime of genocide in addition to perpetration as such. One of these, complicity, is virtually implied in the concept of perpetration and derives from general principles of criminal law. The other three are incomplete or inchoate offences, in effect preliminary acts committed even where genocide itself does not take place. They enhance the preventive dimension of the Convention. The most controversial, ‘direct and public incitement’, is restricted by two adjectives so as to limit conflicts with the protection of freedom of expression.”[5]
Complicity may entail military, political, diplomatic, economic, propagandistic, academic support, including the misuse of the veto power in the UN Security Council, e.g. when the veto[6] frustrates the adoption of resolutions aimed e.g. at imposing an arms embargo or enforcing a cease fire[7]. The frequent use of the veto by the United States to shield Israel from criticism and sanctions by the United Nations constitutes a flagrant abuse of the veto power, and in this case has facilitated the continuation of the on-going genocide in Gaza. Abusing the veto power three times aggravates the crime of complicity and further raises the issue of “conspiracy to commit genocide” pursuant to article III b of the Convention.
The International Court of Justice can make rulings against States concerning State responsibility for genocide and complicity in genocide, as well as fix the level of reparation owed to the victims and their survivors. The International Law Commission’s Draft Code on Responsibility of State stipulates in its article 16:
“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”[8]
Whereas the ICJ exercises jurisdiction over States, the International Criminal Court, (as its predecessors, the ad hoc Tribunals established by Security Council Resolution – the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), has jurisdiction over individuals. Moreover, not only governments and government officials, but also officials of intergovernmental organizations like the European Union[9], and private persons can be guilty of genocide, complicity or conspiracy to commit genocide. The ICTY and ICTR have relevant jurisprudence on the subject.[10]
Article 25 para. 3 of the Rome Statute (Individual criminal responsibility) provides for the criminal responsibility for complicity of those ‘aiding and abetting or otherwise assisting’ the commission of crimes covered by the jurisdiction of the Court, in the following terms: In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:… (c) … aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.
According to well-established precedent, numerous US, UK, and EU politicians and diplomats could be indicted by the International Criminal Court, since article 27 of the Statute of Rome discards the concept of functional immunities, stipulating:
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. [11]
Such immunities had already been discarded by the International Military Tribunal for Nuremberg, and in Article 7(1) of the Statute of the ICTY and article 6(1) of the stature of the ICTR.
Certainly the sale of lethal weapons to a country that is committing genocide constitutes complicity in genocide, and a violation of article 6(3) of the 2014 Arms Trade Treaty, which stipulates:
“A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.”[12]
The sale of chemical agents which could be used in armed conflict would also entail a violation of the Chemical Weapons Convention[13]. There are reports of Israel using chemical weapons[14] against the civilian population of Gaza, and not all of these weapons were produced in Israel. Accordingly, corporate board members and other persons engaged in the arms trade could be indicted by the International Criminal Court for violations of articles 6, 7 and 8 of the Statute of Rome.
In this context it is worth noting the Resolution adopted by the Human Rights Council calling for an arms embargo against Israel.[15] On 5 April 2024 the Human Rights Council “demanded that Israel, the occupying power, end its occupation of the Palestinian territory occupied since 1967, including East Jerusalem. The Council also demanded that Israel immediately lift its blockade on the Gaza Strip and all other forms of collective punishment, and called for an immediate ceasefire in Gaza. The Council called upon all States to take immediate action to prevent the continued forcible transfer of Palestinians within or from Gaza. It called upon all States to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel and requested the Independent International Commission of Inquiry on the occupied Palestinian territory, including East Jerusalem, and Israel to report on both the direct and indirect transfer or sale of arms, munitions, parts, components and dual use items to Israel, the occupying power, and to present its report to the Council at its fifty-ninth session.”[16]
Who is complicit in the on-going genocide in Gaza? Surely the United States, Germany, Canada, United Kingdom, France and all countries that have delivered the weapons used in perpetrating the genocide.
On 1 March 2024 Nicaragua instituted proceedings against Germany[17] before the International Court of Justice charging Germany with complicity in the genocide of the Gaza populations. Oral hearings were held at the Peace Palace on 8 and 9 April 2024.[18] In its order of 30 April 2024, the ICJ did not issue the provisional measures of protection requested, but also rejected Germany’s request that the case be struck from the list. The Court ruled:
20. Based on the factual information and legal arguments presented by the Parties, the Court concludes that, at present, the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
21. As to Germany’s request that the case be removed from the List …, the Court notes that, as it has held in the past, where there is a manifest lack of jurisdiction, it can remove the case from the List at the provisional measures stage (Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 773, para. 35; Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 925, para. 29; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1165, para. 70). Conversely, where there is no such manifest lack of jurisdiction, the Court cannot remove the case at that stage (Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 249, para. 91; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1165, para. 70). In the present case, there being no manifest lack of jurisdiction, the Court cannot accede to Germany’s request.
22. The Court recalls that, in its Order of 26 January 2024, it noted that the military operation conducted by Israel following the attack of 7 October 2023 had resulted in “a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 46). In addition, the Court remains deeply concerned about the catastrophic living conditions of the Palestinians in the Gaza Strip, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which they have been subjected, as acknowledged by the Court in its Order of 28 March 2024 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, para. 18).
23. The Court recalls that, pursuant to common Article 1 of the Geneva Conventions, all States parties are under an obligation “to respect and to ensure respect” for the Conventions “in all circumstances”. It follows from that provision that every State party to these Conventions, “whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” [19]. Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression”[20]. With regard to the Genocide Convention, the Court has had the opportunity to observe that the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible[21]. Further, States parties are bound by the Genocide Convention not to commit any other acts enumerated in Article III[22].
24. Moreover, the Court considers it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.”
Personally, I think that the arguments presented to the Court by Professor Alain Pellet and Dr. Daniel Müller on behalf of Nicaragua were compelling, and more than sufficient to justify granting the provisional measures requested, a fortiori because of the paramount obligation to prevent the continuation of the genocide. Personally, I view the decision of the Court as political, not juridical.
For now we need an immediate ceasefire and honest peace negotiations that will aim at reconstruction and rehabilitation with the help of the United Nations and all of its agencies, including UNRWA.
There can be a future in peace for both the Israelis and the Palestinians, but we must work at it, and reject the fulsome apologetics for the crimes of the Israeli government, the attempts by Western politicians and the Western media to camouflage genocide as “self-defence”, the Orwellian destruction of language that we encounter in our waning brave new world.
Notes.
[1] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide
[2]https://www.realclearpolitics.com/video/2024/05/12/lindsey_graham_it_was_ok_for_america_to_nuke_hiroshima_so_israel_can_do_whatever_you_have_to_do.html
https://www.nytimes.com/video/us/politics/100000009173179/haley-hamas-israel.html
https://www.theguardian.com/world/article/2024/may/12/david-cameron-bbc-hamas-terrorist-group-hostage
[3] https://www.statista.com/chart/12221/the-worlds-biggest-arms-companies/
[4] https://journals.law.harvard.edu/hrj/wp-content/uploads/sites/83/2020/06/21.2HHRJ241-Dawson.pdf See also Schabas, Genocide in International Law, Cambridge University Press, 2d ed. 2009.
[5] https://legal.un.org/avl/pdf/ha/cppcg/cppcg_e.pdf
[6] UN Charter, Article 27.
[7] https://www.npr.org/2023/12/08/1218332312/israel-hamas-war-us-ceasefire-veto-un
https://www.nytimes.com/2024/02/20/world/middleeast/us-vetoes-ceasefire-resolution.html
[8] https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf
[9] https://www.counterpunch.org/2024/03/18/open-letter-to-the-eu-leadership-demanding-an-immediate-ceasefire-in-gaza/
[10] https://www.icty.org/en/content/ictricty-case-law-database https://cld.irmct.org/
[11] https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf
[12] https://thearmstradetreaty.org/hyper-images/file/ATT_English/ATT_English.pdf?templateId=137253
[13] https://www.opcw.org/chemical-weapons-convention
[14] https://www.snopes.com/news/2023/10/13/idf-white-phosphorus-oct-2023/
[15] https://news.un.org/en/story/2024/04/1148261
[16] https://www.ohchr.org/en/press-releases/2024/04/le-conseil-adopte-cinq-resolutions-dont-celle-demandant-quun-cessez-le-feu
[17] https://www.icj-cij.org/case/193
[18] https://www.icj-cij.org/case/193/oral-proceedings
[19] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, para. 158
[20] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, Merits, Judgment, I.C.J. Reports 1986, p. 114, para. 220
[21] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 221-222, paras. 430-431
[22] ibid., p. 114, para. 168)
1 Ikus The Law on self-determination today — by Alfred de Zayas eta Statement by Alfred-Maurice de Zayas, Independent Expert ..
Gehigarriak:
Self-determination and Catalonia
herrien autodeterminazio-eskubide unibertsalaz (Gironan)
Mandangaz, eguneratua eta ondokoak:
Autodeterminazio-eskubideaz, hitz batzuk;
Autodeterminazio-eskubideaz, hitz batzuk (2);
Autodeterminazio-eskubideaz, hitz batzuk (3);
Autodeterminazio-eskubideaz, hitz batzuk (4);
Autodeterminazio-eskubideaz, hitz batzuk (5);
Autodeterminazio-eskubideaz, hitz batzuk (6);
Autodeterminazio-eskubideaz, hitz batzuk (7);
Autodeterminazio-eskubideaz, hitz batzuk (8);
