OPINION: From Isolating to Outlawing Russia – the Criminal Pariah State

Russia has called for the UN to secretly vote on the condemnation of its proclaimed annexation of four Ukrainian regions. Moscow apparently hopes will get more support from the 193 nations in the UN General Assembly if their votes are not public. The General Assembly will resume its emergency special session on Ukraine on Monday, Oct. 9, with a vote on the issue likely on Wednesday.

Our expert author, a former UN official, comments.

1. Ghost of Gaddafi  

The recent speech of Russian Foreign Minister Sergey Lavrov at the United Nations General Assembly (UNGA) on Sep. 22 was most likely his farewell performance in Turtle Bay.The minister has visibly lost touch with reality and is looking more and more like a jaded member of the extinct Soviet kakistocracy in search of suitable footwear to bang on the podium.

He spoke of “Anglo-Saxons who have subjugated Europe,” the U.S. “sending intimidating signals to all other countries without exception” and a “crusade declared by the West.”  The last time the UNGA saw this level of aggression, animosity, and anger was in 2009, when Libyan Colonel Muammar Gaddafi used his UN gig to throw a tantrum by tearing the UN Charter into pieces.

Two years later, the Libyan dictator was overthrown and killed by his own people. While we are not wishing Gaddafi’s fate on Lavrov, his swan song of dividing the world into “evil” Anglo-Saxons, the “victimized” South, and “infallible” Russia has become a true requiem for unborn Russian multilateralism.

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Looking at the leery faces of the delegates listening to the Orwellian call to “reaffirm their clearly stated commitment to the purposes and principles of the UN Charter without any reservations,” one can’t help thinking: Does this super cynicism still belong to the concert of nations?

In addition to that embarrassing diatribe in New York, September was a disastrous month for Russian diplomacy on several fronts.

The first failure came about in Montreal, where the UN International Civil Aviation Organization (ICAO) issued a “significant safety concern” against Russia for the reason of “double-registering” (a euphemism for “hijacking”) hundreds of leased Western aircraft.

Thus, Russian carriers have effectively been banned from operating outside of their national airspace. Adding insult to injury, the ICAO Assembly voted down Moscow’s candidate for the Agency’s Council. For the first time in history, Russia will not have a member in the international civil aviation governing body, comprised of diplomatic representatives of 36 countries elected every three years.

At the same time, in Vienna, the UN nuclear agency’s (IAEA) 35-nation Board of Governors passed a resolution demanding that Russia end its occupation of the Zaporizhzhia nuclear power plant, thus denouncing false claims that the Russian military invaded the nuclear site to ensure its safety.

The heaviest blow to Moscow’s ambition came from Bucharest, where the Russian government’s secondee ran against the U.S. candidate for the position of Secretary General of the International Telecommunication Union (ITU). In the words of The New York Times: “The election has become a symbol of the growing global fight between a democratic approach to the internet, which is lightly regulated and interconnected around the world, and authoritarian countries that want to control their citizens’ access to the web.”

The U.S. candidate — the first female to head the ITU in its 157-year history — won by a landslide of 139 against 25 votes.

Multiple diplomatic humiliations were not a “tactical retreat.” The loss of the strategically important ICAO, ITU, and IAEA, combined with Lavrov’s rabid isolation, signify that the Kremlin’s multilateral diplomacy, once a vital cog in its foreign policy machine, has gone defunct.

2. Sense and technicality

Russia’s veto in the Security Council (SC) over the resolution condemning fake referenda, followed by the annexation of the occupied territories, looked more like an act of despair than the manifestation of a rational policy.

Against the background of Moscow’s sabotage at the SC, the U.S. has requested the resumption of the 11^th Emergency Special Session of the GA. The session was adjourned in March, following the adoption of two resolutions which strongly deplored the invasion and demanded the withdrawal of Russian forces from Ukraine. The President of the GA (Hungary) has scheduled the meeting for the afternoon of Oct. 11.

No doubt the Russian delegation will be in dire straits; their country’s position is inexcusable and cannot be defended. The tone of the meeting has been set by Ukrainian President Zelensky’s speech to the SC on Sep. 27:

“A state that is implementing a policy of genocide right now, keeping the world one step away from a radiation disaster, and at the same time threatening nuclear strikes, cannot remain a permanent member of the UN Security Council with veto power. Russia must be excluded from all international organizations. If such exclusion is complicated by the procedure, its participation must be suspended.”

Indeed, from a common-sense perspective it is obvious that Russia’s attack on Ukraine is so explicitly deserving of moral condemnation and political sanction that any reasonable person might expect that a simple and predictable consequence would be to expel Russia from the UN, the global organization devoted through its preamble to living “together in peace with one another as good neighbors.”

Following conventional wisdom, Russia could have its rights and privileges of membership suspended (Article 5 of the UN Charter refers to “preventive or enforcement action”), or it could be expelled from the Organization entirely (Article 6 refers to sanctions against those states who “persistently violated the Principles” of the Charter) on a decision of the GA.

But both require a recommendation to that effect from the SC and would be subject to a veto by any of the five SC Permanent Members. Invoking Articles 5 or 6 would inevitably lead to a situation described by U.S. lawyer Dr. Larry Johnson as “a rabbit hole,” with Russia vetoing any SC sanctions directed against itself.

Equally hopeless seems to be the next “rabbit hole,” unfortunately cultivated by Ukrainian diplomacy over the past seven months, declaring that Russia is not a bona fide member of the UN because there was no decision made on admitting it as a member in the first place after the demise of the USSR. Even if supported by the international community, this argument is late by some 30 years, unacceptable to some major actors (think China), and, other than yielding a million passionate tweets from both sides of the aisle, will bring no practical results.

3. Waging asymmetrical lawfare (and winning)

The resumed 11^th Emergency Session will start with a duel over a procedural issue, in this instance a Russian demand for a secret ballot vote on a Western-backed resolution that would condemn Moscow’s “attempted illegal annexation” of part of four Ukrainian regions and demand that it immediately reverse its actions.

Russia apparently hopes it will get more support from the 193 nations in the GA if their votes are not public. It is also possible that Russians may be counting on benevolence from the Hungarian Presidency of UNGA.

Russian representatives are fully aware that the Rules of Procedure of the GA, together with decades of practice, limit secret ballot to elections. It is highly unlikely that the demand of Russia’s Permanent Representative to the UN, Ambassador Nebenzya will gain traction. However, cornered rats, to use Russian President Vladimir Putin’s metaphor, know no diplomacy – they simply attack. The obvious futility of the démarche makes it no less dangerous in wasting the time and distracting the attention of the delegations, or in refocusing public opinion on a nonissue.

In diplomacy, this formalistic approach of “using the law as a weapon of war” is known as “lawfare,” a term coined by U.S. Air Force lawyer Charles Dunlap some 20 years ago to describe a tactic of damaging the enemy through legal or quasi-legal systems and procedures.

How can Ukraine counter Moscow’s attempts to misinterpret and weaponize the UN house rules? Considering today’s fragile balance among various interest groups in the GA, Kyiv’s political goals may be best served by presenting a preemptive procedural argument that is legal in form but substantive in nature: questioning the legality of Russian representation by protesting its delegation’s credentials.

In our previous article, we quoted the 1974 vote in which the UNGA, acting against the position of several SC permanent members, effectively suspended the apartheid regime from the UN. From a strictly legalistic perspective, the GA decision was open to criticism: Articles 27 through 29 of the GA Rules of Procedure limit the examination of credentials to strictly technical issues of verification.

Thus, critics said that the GA ventured away from a technicality into the domain of “membership,” which required an SC recommendation. In this context, some scholars noted a lacuna between “credentials” and “membership” in terms of representation, i.e. the functions that are concerned with “the question of whether a governmental authority will be considered generally as the international agent of the state and, for the present discussion, as the representative of that state in the General Assembly.”

The credentials of the Russian delegation were evaluated by two successive Credentials Committees in March (11^th Emergency Session) and September (77^th UNGA). However, an argument could be made that those credentials have lost their validity since the “legal personality” of Russia changed on Oct. 5, with Putin signing four federal constitutional laws on the entry of the so-called Donetsk and Luhansk People’s Republics, as well as the Zaporizhzhia and Kherson regions, into Russia.

International customary law stipulates that the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Leaving aside the substantive legal and moral considerations, let’s look at how the annexation of 18 percent of Ukrainian territory has changed Russia’s legal personality.

1. Russia no longer has a permanent population. The issuance of several million Russian passports on occupied territories, combined with the forced deportation of hundreds of thousands of people to Russia, has not converted the natives of the occupied territories into Russian citizens. Instead, these acts have completely muddled the notion of “people of the Russian Federation;”
2. Russia no longer has defined borders. Putin’s spokesperson Dmitry Peskov has openly stated that the Kremlin is still determining which areas of occupied Ukraine it has “annexed,” which suggests Russia does not know where its self-declared international borders are;
3. The Russian government’s ability to control the annexed territories is effectively being questioned every day by the Ukrainian Armed Forces (UAF).

Hence, three out of the four qualifications have materially shifted: The Russia of October has gone through a legal personality change compared to the Russia of several months ago, making it imperative to re-examine its delegation’s standing.

The issue of representation is not new. In 1949, Secretary General Trygve Lie ordered his legal counsel to prepare a memorandum titled “The Legal Issues of Representation in the United Nations,” which was privately circulated to the SC members. In line with international law, it proposed that the claimant exercise “effective authority within the territory of the State and [be] habitually obeyed by the bulk of the population.” Effective authority was deemed essential for the state to fulfill its obligations under the Charter. By proclaiming incorporation of the territories that are not, de-jure and de-facto, under Russian control, Russia has lost its claim on “effective authority.”

Russian diplomats are fully aware that their country has blatantly violated a plethora of norms and principles of international law (quite tellingly, Lavrov’s speech on the annexation at the Russian Federation Council contained a call to “leave aside legal formulations”), but they are accustomed to shielding Moscow’s lawlessness by having a permanent seat in the SC.

However, now, by rushing to “legitimize” the annexation of the Ukrainian territories, Russian authorities have inflicted upon themselves a serious vulnerability, throwing into doubt the formal standing of their UN delegation. The new reality creates an opening for Ukraine and its allies to change the rules of engagement through lawfare at UNGA.

Dmytro Dovgopoly is a former UN staff member (1987-2019)

The views expressed are the author’s and not necessarily of Kyiv Post.