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A Just Peace for an Unjust War in Ukraine

Ukranian Ambassador, Sergiy Kyslytsya, speaks at UN General Assembly
Sergiy Kyslytsya, Ukraine’s envoy to the UN, speaking from the General Assembly rostrum on Feb. 28, during a debate on Russia’s invasion of his country. On the large screens, above, is Russia’s envoy, Vassily Nebenzia. JOHN PENNEY/PASSBLUE

Former United States President George W. Bush’s unwitting truth is as tragic as it is hypocritical. The “absence of checks and balances in Russia,” he said recently, has resulted in “the decision of one man to launch a wholly unjustified and brutal invasion of Iraq, I mean of the Ukraine. Iraq too.”

While he was speaking about the absence of checks and balances in Russia, the question that should be raised is whether the absence of international checks and balances in response to the invasion of Iraq by the US and Britain in 2003 and the invasion of Crimea by Russia in 2014 is what prompted President Vladimir Putin’s decision to invade Ukraine again in 2022.

Both the invasion of Iraq and the invasions of Ukraine violate the fundamental principle of the United Nations Charter that “States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”

As such, the US and Britain are not the most credible or effective advocates for peace and security or for justice and accountability in this instance. It is for the membership of the UN and its secretary-general to uphold the purpose of the UN to save our generation from the “scourge of war” and the catastrophic risks of nuclear conflagration and global famine.

In an ideal world, the Security Council would adopt a resolution, building on its presidential statement of May 6, 2022, regarding “the maintenance of peace and security of Ukraine” and calling for an immediate cessation of hostilities and a voluntary, immediate, complete and unconditional withdrawal of all foreign forces from the territory of Ukraine within its internationally recognized borders and territorial waters.

To the extent that such a resolution would not contain any enforcement measures and would not invoke Chapter VII of the UN Charter, it could even deploy a peacekeeping mission to monitor the cease-fire and the withdrawal of foreign forces and still fall squarely under the peaceful settlement provisions of Chapter VI, whether it referred to Chapter VI explicitly or not and whether it referred to Russian forces explicitly or not.

In that event, Russia should not be able to vote on — much less veto — any such resolution by virtue of the explicit terms of Article 27.3 of the UN Charter, which stipulates that in decisions under Chapter VI, “a party to a dispute shall abstain from voting.”

Of course, in contravention of Article 27.3, Russia would likely cast a veto on any such resolution, as it did on Feb. 25 — and as other permanent members have done at one time or another throughout the decades.

This likelihood, however, would not have to be the end of the story. The 11th emergency special session of the General Assembly on the “Aggression against Ukraine” has met twice since Russian forces invaded Ukraine on Feb. 24, 2022, and could meet again. Ten such other emergency special sessions have been convened based on General Assembly resolution 377 A (V) since 1950, when the Uniting for Peace resolution was adopted in response to the situation in the Korean peninsula. It had been 25 years since the last emergency special session was first convened in 1997; the 10th such session, on “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory,” has been resumed on several occasions since then.

In its resolutions ES11/1 and ES11/2, the General Assembly had not only reaffirmed its commitment to the sovereignty, independence, unity and territorial integrity of Ukraine; condemned the Russian aggression against Ukraine and called for an immediate, complete and unconditional withdrawal of Russian forces from Ukraine, it had also reaffirmed the fundamental principle of customary international law that “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.”

Thus, those who advocate for conceding parts of Ukraine to Russia as a legitimate bargaining chip for peace should recall that the corollary of that principle is that “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

If not pieces of land, what could be the legitimate pieces of a peace plan for Ukraine?

  • A UN peacekeeping mission to monitor the cease-fire and withdrawal of Russian forces
  • A compensation commission, similar to the UN Compensation Commission for Iraqi aggression against Kuwait, to address civilian losses and damage to civilian property
  • An accountability mechanism for the crimes documented by the UN Office of the High Commissioner for Human Rights and the observer mission of the Organization for Security and Cooperation in Europe in the Donbas region, committed by either side before February 2022
  • The same or a separate accountability mechanism for war crimes committed by Russian soldiers in Ukraine during and after the aggression in February 2022 as well as for any war crimes committed by Ukrainian soldiers against Russian prisoners of war; and/or
  • An internationally supervised self-determination referendum in Crimea and the Donbas region

These and other elements of a peace plan could be put forth by the UN secretary-general for the consideration of the General Assembly or, pursuant to Article 99 of the UN Charter, to the Security Council.

On March 16, 2022, the International Court of Justice ordered Russia to suspend its military operations in Ukraine and called on both parties to refrain from actions that might aggravate or extend the dispute. Until a political or judicial path to a peaceful settlement is established, the 11th emergency special session can rely on the provisions and practice of General Assembly Resolution 377 (V) to recommend enforcement measures up to and including, most controversially, the possible use of armed force. The longstanding practice of the Assembly affirms the robustness of its residual authority for the maintenance of international peace and security under the Uniting for Peace resolution, including measures against the permanent members of the Security Council.

For example, in its first emergency special session in 1956, the Assembly called on Britain and France to immediately withdraw from Egypt and established a UN command for an international force to secure and supervise the cessation of hostilities. In its second and sixth emergency special sessions, the Assembly called on the Soviet Union at the time to withdraw from Hungary and from Afghanistan, respectively. In its third, seventh and ninth emergency special sessions, the Assembly called for complete and unconditional withdrawals of Israeli troops from Jordan, Lebanon, the Occupied Palestinian Territory and Syria, respectively. In its fourth emergency special session, the Assembly imposed an arms embargo regarding the situation in the Democratic Republic of the Congo.

In its fifth emergency special session, the Assembly called on relevant member states to facilitate humanitarian assistance to alleviate the suffering of civilians and prisoners of war in the Middle East and called on Israel to rescind all measures to alter the status of Jerusalem. In its eighth emergency special session, the Assembly called on member states to provide military assistance to the front-line states and to the South West Africa People’s Organization, or Swapo, “to enable it to intensify its struggle for the liberation of Namibia.”

The General Assembly can once again recommend measures to repel aggression where the Security Council cannot do so — including by establishing a peacekeeping mission and/or by calling on member states to provide military and other aid to countries defending their territory against such aggression. It has already condemned the war in Ukraine; it can now pave the way toward a just and sustainable peace by promoting the rule of international law and accountability for all those who violate it.

Mona Ali Khalil is an internationally recognized public international lawyer with 25 years of UN and other experience, including as a former senior legal officer in the UN and in the IAEA, with expertise in peacekeeping, peace enforcement, disarmament and counterterrorism. She holds a B.A. and an M.A. in international relations from Harvard University and a master’s in foreign service and a J.D. from Georgetown University. She is an affiliate of the Harvard Law School Program on International Law and Armed Conflict and a nonresident fellow at the UN Institute for Disarmament Research. She is the Founder and Director of MAK LAW INTERNATIONAL, a legal advisory and strategic consulting service, assisting governments and intergovernmental organizations in the service of “We the Peoples.”

 

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