West and Russia breaking international legal norms, pacing to “jungle law”
Serhey Bohdan's analysis

ANALYTICS  23 July 2023 - 14:04

Recently, Russia's closest allies - Armenia and Kyrgyzstan - tried to prove to the West their readiness to comply with the US and EU anti-Russian sanctions. The collective West has thus achieved another success in unilaterally imposing its new legal norms at the global level.

However, the notional East does exactly the same thing, which is why the existing legal system is cracking at the seams on everything from diplomacy to finance and armaments, with no exceptions for basic human freedoms, such as freedom of conscience. These formal and informal international legal norms have been developed over decades, if not centuries, preventing humanity from slipping into a medieval "war of all against all".

The decline of diplomacy

A striking example of the new trends was the news published on Thursday that Russian President Putin will skip the most important event - the BRICS summit in South Africa. The Russian president will not fly to the meeting of leaders of this key non-Western political initiative comprising Brazil, Russia, India, China, and South Africa for fear of arrest by the International Criminal Court (ICC). The inviolability of foreign state officials outside situations of war has until now been a rule of international law. Now it seems to have come to an end, at least about leaders of non-Western countries. It is quite interesting how the West has managed to do this.

It all started in 2008, when an intergovernmental organisation, the International Criminal Court (ICC), issued an arrest warrant for Sudanese President Al-Bashir on charges related to the conflict in Darfur province. This was an attempt to set a precedent, as it was the first time that a self-proclaimed "international justice entity" had ordered the arrest of an incumbent head of state. The entity was deliberately created outside the UN structures by a coalition of Western countries and their allies, although mechanisms of international justice within the UN already existed at that time.

Not surprisingly, the arrest warrant against al-Bashir went nowhere - the ICC was attacked by members of the Arab League, the African Union, the Non-Aligned Movement, and the Organisation of Islamic Cooperation. They refused to honor the ICC's decision, while al-Bashir continued his foreign visits - not to "rogue states", but to almost all - from India to Nigeria and even South Africa. The first attempt turned out to be unsuccessful. Al-Bashir, of course, was arrested by Sudanese authorities after the military coup in Sudan in 2019, and trials began. But his extradition to the ICC looks elusive.

Attempts continued, but the second Libyan attempt proved to be a failure as well. After the outbreak of unrest in Libya in 2011, the North Atlantic Alliance launched a military intervention on the side of the opposition, and the ICC issued an arrest warrant for Gaddafi. However, even here, in fact, it was a failure - he had to be simply tortured and killed with the participation of Western intelligence services. It was only at the third attempt, with the Russian leader in its crosshairs, that the ICC was able to get its decisions taken seriously.

But the most interesting thing here is that it cannot be said that this current situation is solely the work of the insidious West! In fact, it was created by almost all superpowers, incl. Russia. It did not just actively participate in the creation of the ICC, bypassing UN procedures as a globally inclusive organisation. Already in the case of the Sudanese leader, the ICC initially could not issue an arrest warrant - after all, Sudan did not sign the Rome Statute creating the ICC. However, Russia, along with the rest of the key world powers, adopted the relevant resolution 1593 in the UN Security Council in 2005 and referred the case to the ICC. In the case of Libya, everything was even more obvious - Russia step by step agreed to the measures of the West against Gaddafi. At the same time, Libya did not sign the Rome Statute and the ICC also could not first issue a warrant for the arrest of the head of the country. But the superpowers, including Russia, adopted Resolution 1970 in the UN Security Council, which gave the ICC the authority to act in Libya.

The consequences of this waiver of immunity for sitting heads of state in peacetime look like a triumph of some kind of justice only at first glance. A sober examination of the consequences makes it clear that they break the foundations of international communication, and they are already fraught for diplomacy with a breakdown in communication between an increasingly consolidated West and the slowly but emerging camp of its opponents.

Requisitions and blockades

 At the same time, there is objectively no more interest in finding compromises due to the revision at the global level of legal norms concerning business and the inviolability of property. Taking money, property, and even the last income from individual countries, corporations, and citizens under noble pretexts is becoming acceptable in the system of law being built by the new masters of the world.

By the way, at one time several externally neutral and independent financial and economic institutions and mechanisms were built by predominantly Western governmental and non-governmental structures. We mean global Western banks, through which it is convenient to do business, and mechanisms like the notorious SWIFT, etc. As soon as financial globalisation reached a critical scale and all countries found themselves dependent on this infrastructure, it became clear that the West could disconnect its opponents from it at any time for political reasons, despite the dire consequences of these steps for entire nations.

Having occupied these commanding heights of the world economy, the US, the EU, and their allies have been increasingly active in imposing sanctions left and right over the past twenty years. In the last five years, sanctions have sprung from the horn of plenty, transgressing more and more taboos. For example, in 2019, the US first failed to recognise the results of Venezuela's elections and froze billions of dollars belonging to the country - which immediately hit millions of already poor Venezuelans regardless of their beliefs.

The Americans then gave some of that money to self-proclaimed President Juan Guiado and his associates. In this situation, the Venezuelan government attempted to bring home some of Venezuela's gold reserve, which was in the custody of the British Central Bank. However, despite all sorts of guarantees about the return at any moment, the UK simply refused to give the gold back.

The experiment with Venezuelan money failed, and then Western politicians decided to see if something even more radical could be done. And after the change of power in Afghanistan in 2021, the US and other Western countries first froze absolutely all the financial resources of this country, instantly ensuring not only the collapse of the Afghan economy but also the beginning of a creeping famine! Then last year, the US authorities collected Afghan funds into one account, and immediately set aside half of the seven billion dollars to compensate American citizens who were victims of the 9/11 attacks - even though not a single Afghan was among the perpetrators of those horrendous attacks!

At first glance, it is impossible to compare Washington's plans, made public in January, to transfer part of the assets confiscated from the Russian Federation and its citizens to Ukraine with such blatant requisitions. It looks more morally justified. But, in fact, it creates the same dangerous precedent for politically motivated requisitions, and in a legal sense, this is a movement in the same direction - a revision of the principles of the inviolability of private and public property. Moreover, not only state (public) property is in question, but also the property of businessmen from these countries. And Western politicians are well aware of the novelty of this - according to a senior official of the US Department of Justice Andrew Adams, “we are aimed at starting the transfer of confiscated assets in favour of Ukraine. I want to stress that this is a relatively new development."

Seeing such a range of confiscations and sanctions from the West, especially against the Russian Federation, many countries of the world thought about their prospects. It’s a serious matter – last year, as part of measures to counter the Russian invasion of Ukraine, the West managed to freeze almost half of Russia’s reserves of gold and foreign currency around the world (they amounted to $640 billion at the start of the war). According to a study by the well-known American investment company Invesco, an increasing number of countries are responding to sanctions against the Russian Federation by returning home their gold reserves stored in Western banks. The authors of the study quote a central banker from an unnamed country as saying: “We kept it (gold) in London… but now we have transferred it back to our country to hold it as a safe deposit and keep it safe.” They emphasize that this is how many bankers now think.

War by all means

Against the background of all of the above, it is no longer surprising that leading world players like NATO and the Russian Federation are engaged in the same revision of legal norms and universal agreements on the conduct of war. First of all, the norms that have been developed over many decades to reduce the consequences of war on civilians are being revised.

On the one hand, we have already written about the endless threats to use nuclear weapons by some Russian leaders. On the other hand, as even Human Rights Watch has confirmed, Ukrainian troops have been scattering anti-personnel mines on territories captured by Russian forces since April 2022. Those mines, especially when used en masse in densely populated areas, cause horrendous casualties precisely among the civilian population.

Because of their indiscriminate effect, they had been banned by the 1997 Ottawa Convention banning anti-personnel mines, to which Ukraine was a signatory. The Ukrainian precedent of using banned weapons has been successful and influential - referring to the practice of the Russian-Ukrainian war, some NATO countries, such as Estonia and Latvia, have already started talking about returning to the use of this type of weapon and abandoning the Ottawa Convention.

Earlier this month, US President Biden decided to provide Ukraine with cluster munitions, which are banned in most countries of the world also because of the consequences of their use on civilians. 111 nations around the world have already banned this type of weapon by ratifying the 2008 Convention on Cluster Munitions, but the United States, the Russian Federation, and Ukraine are not among them. The extent to which the move breaks aspirations to curb the horrors of war is shown by the reaction to it.

Biden's decision was criticised by his closest NATO allies like the UK, Italy, and Spain, and even Biden's fellow members of the US Democratic Party. Needless to say, even at the start of the war in February 2022, the White House itself said that the Russian use of cluster munitions was a war crime. Biden has his own justification - he says that this is a temporary forced step to give new impetus to the Ukrainian counter-offensive.

Restore the Inquisition and concentration camps

The dismantling of international legal norms is not only about high politics. A new trend in international law has been the gradual restoration of the principle of collective responsibility for ordinary citizens of the countries concerned. And while it is true that in the case of the long-standing sanctions against Iraq, Iran, Libya, South Africa, etc., many of the harsh measures affected citizens rather than the authorities, these were rather side-effects of the restriction of the foreign relations of these countries as a whole. Individually, and even more so when outside these countries, their ordinary citizens were not directly affected by the sanctions at that time.

In the case of sanctions against Russia and Belarus, the West began to test a new model. Already in the first months after the beginning of the Russian invasion of Ukraine, citizens of Russia and Belarus in some EU-NATO countries, such as Latvia, began to be required to sign a personal statement of opposition to the Russian government. This became a condition for permission to cross the Latvian border and directly affected the principle of freedom of conscience, but it did not provoke protests from so-called human rights activists.

What is meant here is a modern version of the same Inquisition that once persecuted not just divergences in religious faith as such, but controlled the political allegiances associated with religion in those days. But the process of undermining the foundations of freedom of conscience - which prohibits forcing someone to express their beliefs - continues. An example was the proposal of Petr Pavel, president of another EU-NATO country, the Czech Republic, who in his June interview with the American Radio Liberty called for close surveillance of all Russian citizens abroad without exception by the intelligence services, and to consider in the context of possible measures against them the experience of the imprisonment of Japanese citizens in America in concentration camps during World War II. This experience, by the way, the American Government is not at all proud of, and compensation was even paid to former prisoners.

In addition to freedom of conscience, norms concerning the property of private individuals are also being reviewed. In connection with the Russian invasion of Ukraine, funds, as well as the property of some major Russian businessmen, have been blocked. But can we say that these sanctions and confiscations are really being carried out in connection with the Russian invasion of Ukraine, and, for example, are being faced by individuals who support the policy in question? And no matter how much they say in the West that a person can only be found guilty by a court of law, in this case, there were no trials. It seems that owning a large business in the Russian Federation and Russian citizenship was enough.

The story of Russian businessman Oleg Tinkov may serve as an illustration. Back on 1 March 2022, he publicly addressed the British authorities, saying that he agreed with the imposition of sanctions against those who supported the war with Ukraine, but he was not among them. That didn't help. The sanctions were indeed lifted from him this week, but only after he renounced his Russian citizenship.

German authorities since May have begun, not very consistently, but confiscating cars from Russian citizens who drove them into Germany. Some liberal media wrote it off as "excesses of the executor", a misinterpretation of the law, but there have been many such restrictions in the last year and a half. Another thing is that they are not publicised. For example, after the beginning of the war, German banks started strict periodic checks of residence permits of all citizens of the Russian Federation and Belarus, informally threatening to block the account with unclear consequences for the funds.

We have listed here only some colourful examples of the dismantling of the system of law at the global level. Under the rhetoric of freedom and human rights, the international community is moving towards something quite different. On the wave of modern imperialism, it is rapidly returning to the ideological origins of imperialism of more than a century ago, namely, the well-known principle of "might is right". This dogma of social Darwinism, albeit in a reformulated form, has passed into modern libertarianism, so popular among the modern Western (and Russian) establishment. And nothing destroys the foundations of peaceful coexistence and joint development on the planet more than this approach.

Caliber.Az