A GENERAL VIEW OF
OBLIGATION AND LIABILITY IN INTERNATIONAL LAW
(WITH REFERENCE TO THE GENOCIDAL
AGGRESSION AGAINST CHECHENYA)The place of obligation and liability in the body of law (7)
A body of law is inconceivable without obligation and liability, civil and criminal "Obligation" is “a generic word derived front 'obligatio' . That which a person is bound to do or forbear, any duty imposed...”. "Liability" is the condition of being responsible for not carrying out an obligation, thus damage or crime.
Obligation and liability are indispensable for and dependent on each other. There can be no liability without obligation and no obligation without liabilityIn the absence of obligation and liability a body of law cannot exist. Obligation and liability together present the element that makes law capable of existing, of living, of implementation and enforcement. Obligation marks to the "must" of doing or forbearing, to what one must do and must not do. Liability is the device of forcing the person to do or not to do. Liability works as preventive due to its deterrent effect, and as reparative when applied in a concrete case. For this reason, obligation and liability form the "nucleus" of law in the sense that when it is lacking, law cannot be perceived of, and when it is inactive, the legal system withers away in part or in whole according to the extent to which the nucleus "obligation and liability" is inactive.
As a result, all legal systems contain obligations and liabilities, in explicite and implicate forms The mere existence of' a rule implies the obligation to carry it out, that is the obligation to do or not to do what the rule imposes, and implies also the liability in case of' violating that obligation.
Obligation and liability in international law
It is therefore a matter of course that along with the influence and incorporation of the general principle of law in the body of' rules governing inter-national relations, the principles of obligation and liability, civil as well as criminal, have been applied War damages and war trials are some of its applications. The treaty and the judicial means have been used to settle claims arising out of war and out of damages caused by other violations of rules of international law.
The principles of liability in international law derive front three sources: the general principles of law, as a higher and major source. custom and treaty Declaratory expressions of obligation and harm have been repeatedly given by the UNO and international organizations.
The work of the International Low Commission on State Responsibility is another and a major declaratory instrument of the principles of civil and criminal liability in International law.
The unified concept approach of "wrongful acts" is used. Wrongful acts are divided into delicts and crimes. Every State is responsible for every internationally wrongful act (Articles 1 and 2). The elements of the internationally wrongful act are two (Articles 3 and 4) an action or omission, and a breach of an international obligation of the State, even if the act is lawful in internal law.
The subject-matter and the origin of the obligation are riot relevant and do not affect liability. The origin can be customary, conventional or other (Articles 17 and 191).
The obligation must be in force for the Stale at the time it breaches it.
The breach continues in respect of the period during which the action or omission continues (Article 183).
If the obligation is to prevent a given event, the breach occurs when the event begins and continues until the event is stopped (Article 26).
A breach of an international obligation is present when the obligation requires a particular course of' conduct and the State does not follow it (Article 20).
International crimes are defined and enumerated in Article 19.2 and 19.3 which reads:
"2. Air internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime.
3. Subject to paragraph 2, and on the basis of tile rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid; (d) a serious breach of air international obligation of essential importance for the safeguarding and preservation of the human environment, Such as those prohibiting massive pollution of the atmosphere or of the seas”.
(emphases are added)
Since, Chechenya has been subjected to aggression as well as to genocide at the hands of Moscow, we shall elaborate here on aggression and ,add more err genocide later on
Aggression is formally prohibited by Western international law only since the 1907 Convention for the Pacific Settlement of International Disputes, then by the 1920 Covenant of the League of Nations (Article 10), the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy ("Briand-Kellogg Pact"), and fire 1945 Charter of the United Nations.
The definition of aggression presented a problem in the UNO and a UN Special Committee on the Question of Defining Aggression was established. On basis of the work of that committee, the UN Gen. Ass adopted its resolution 3314 (XXIX) in 1974 containing the definition of aggression, its forms, and the legal considerations applicable to it (see Annex III).
The definition of aggression is provided in Article 1:
"Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition”.
This definition applies to the actual ongoing Moscow aggression against Chechenya, because the explanatory note added to Article 1 reads:
In this definition the term "State"
(a) Is used without prejudice to questions of recognition or to whether a State is a Member of the United Nations;
.........”It is Moscow which started the armed aggression against Chechenya, and its act of aggression falls under the provision of Article 2 which reads:
"The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would riot be justified in the light of other relevant circumstances, including,, the fact that the acts concerned or their consequences are not of sufficient gravity.
The armed aggression committed by Moscow against Chechenya falls under more than one of the forms of armed aggression listed in ,Article 3, which reads:
Article 3
"Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting front such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the rise of any weapons by a State! against the territory of another State; (c) The blockade of the ports or coasts of' a State by the armed forces of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of tile agreements;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for penetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.Under Article 4, the resolution gives the Security Council the power to determine what other acts constitute aggression under the provisions of UN Charter.
All the pretenses and lies of Moscow to justify its genocide] aggression are rejected by the resolution under Article 5 which reads:
Article 5
"1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
2. A war of a aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage resulting front aggression is or shall be recognized as lawful".
More specifically applicable to the case of Chechenya is the provision of Article 7 which is intended to protect the oppressed nations. It stipulates:
"Nothing in this Definition, and in particular Article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of people forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination, nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration".
The Chechenyan case is further enforced by the provision of Article 8 which reads:
"In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions”.
The gravity of the aggression committed by Moscow against Chechenyan declaration of independence is very obvious, and it constitutes a serious crime under international law.
After this brief introduction of obligation and liability in general and in modern international law, with reference to the aggression against Chechenya, we will deal with the obligations and liabilities of the RF, its constituent sovereign States, and all other States.
THE OBLIGATIONS AND LIABILITIES
OF THE FEDERAL, GOVERNMENT AND THE STATES
MEMBERS OF THE RUSSIAN FEDERATION
REGARDING THE GENOCIDAL AGGRESSION
AGAINST CHECHENYA
A critical view of the constitution
of the Russian Federation174. The constitution of the Russian Federation is a mixture of contradictions and falsities.
174.1 Its preamble asserts that one major motive is "honoring the memory of our ancestors, who have passed on to us love of and respect for our homeland and faith in good and justice" The genocidal crimes committed by Moscow under the Czar, Lenin and Stalin against a good number of differing nations are totally ignored and considered "good and justice". It is reported that seven million people have been eliminated by the Stalin-gang.
174.2 While its preamble asserts "the principle of equality and self-determination" of the differing nations of which Russia is made up, it asserts at the same time that "reviving the sovereign statehood of Russia " is the major goal.
174.3 It is modeled after the USSR. It recognizes "State power" of the sovereign States making it up, and asserts that this shall be based on equality and self-determination, which makes the RF a regional organization in which the sovereign States surrender some degree of their spheres of powers to the federal structure This character of a regional organization is asserted by the stipulation of Article III.2 of the Federation Treaty:
"The republics belonging to the Russian Federation will he autonomous parties to international and foreign economic relations and agreements with other republics, 'krays', 'oblasts', autonomous 'oblasts', and autonomous 'okrugs' of the Russian Federation unless this is contrary to the Constitution and laws of the Russian Federation and this Treaty. The coordination of the international and foreign economic relations of the republics belonging to the Russian Federation will be conducted by federal government bodies of the Russian Federation in conjunction with the republics belonging to the Russian Federation".
Contrary to this regionalism of sovereign States, the constitution grants the President of the Russian Federation far reaching powers which amount to an executive dictatorship Those powers should have been placed under the full control of the Federation Council, especially the Powers to nominate the Federal prime minister and the ministers and to use the armed force domestically or internationally (with review powers of the Duma), and to dissolve the Duma. The position of the President should have been structured as a figure head of the Federation with ceremonial functions, and on rotation basis among the constituent republics, as befitting such a regional organization Consisting of equal sovereign States of differing nations.
Obligations of the political entity in Moscow
175. The political entity in Moscow is under a number of obligations.
175.1 The obligation to stop immediately its genocidal operation and occupation against the people and the independent Republic of Chechenya.
175.2 The obligation not to resist action to put an end thereto.
175.3 The obligation to make public the names of all those responsible for or have taken part in that genocidal operation arid occupation, to apprehend them and to extradite them to the Republic of Chechenya to put them to trial in exercise of its sovereignty.
Obligations of the sovereign States
members of the Federation Treaty176. The sovereign States Parties to the Federation Treaty of the Russian Federation and their peoples are under a number of obligations.
176.1 The obligation not to participate in air way in the genocidal aggression being committed, in the name of the federation, by Moscow against the independent people and Republic of Chechenya, since, even if Chechenya would have been party to the Federation Treaty, the sovereign States Parties to that treaty, in the conduct of their international and foreign relations (recognized by Article III.2 of the Federation Treaty) among each other, are under the obligation not to violate the equal sovereignty of any of them or the rules of international law concerning self-determination, territorial integrity, and the prohibition of war, genocide and the violation of human rights of individuals and nations.
The danger of their not carrying out this obligation is that they, by reason of their conduct, will be considered as having acquiesced to the way the Federation Treaty is being applied, including the rise of the federal army against a member State, and in the way it was used in Chechenya (Article 45.b of the Vienna Convention on the Law of Treaties).
176.2 Since the sovereign Republics members of the Federation Treaty have themselves voluntarily surrendered a part of their sovereignty to the federal government and are participating in the decision making of that government (Article I), they are under the obligation to rectify the position of that government by putting immediately an end to the genocidal aggression.
176.3 For the above reasons they are liable to pay reparation for all the losses, damages and injuries caused by the said armed genocidal aggression. Their subjects involved in the said armed genocide aggression are responsible tot their acts or inacts of negligence or other acts falling under the Genocide Convention arid oilier forms of crimes against humanity.
176.4 The obligation to impeach die actual President (Boris Yeltsin) because of his committing the most grave crimes of aggression and genocide against the people and the Republic of Chechenya (Article 93 of the 1993 constitution of the RF). If, arguendo, Chechen Republic would have been a member of the RF, committing aggression and genocide against its people forms also the crime of high treason, because it is an overthrow of the authority of the constitution and of the dignity and self-determination of all the differing nations making up the RF. The oath which Boris Yeltsin took to assume the office of the President reads (Article 82):
"I vow, in the performance of my powers as the President of the Russian Federation to respect and protect the rights and freedoms of man and citizen, to observe and protect the Constitution of the Russian Federation, to protect the sovereignty and independence, security and integrity of the state and to serve the people faithfully".
176.5 In case the sovereign States members of the Federation Treaty do not succeed in putting an immediate end to the ongoing armed genocidal aggression, they are under the obligation to suspend or terminate the Federation Treaty and to assume their full sovereignty and independence in order to dissociate themselves from a federal structure being used for aggression and genocide.
In this regard, they must notify, in writing, the federal government and each other Due to the urgency of tile matter, they are not under the obligation to observe any period of time before suspending or terminating the Federation Treaty (Article 65.2 of the Vienna Convention on the Law of Treaties).
If objections are raised, the means to solve them must be peaceful as provided for under Article VI of the Federation Treaty or under Article 33 of the Charter of the United Nations (Articles 65.3 and 65.4 of the Vienna Convention on the Law of Treaties).
176.6 They are under the obligation to recognize the independence of the people and Republic of Chechenya and to enter into all kinds of international relations with it, since the federal government bodies misrepresented the interest of their sovereign States in this regard.
176.7 They are tinder the obligation to assist the Chechen Republic and its people in their self-defense.
177. It is a matter of course that any and all States which continue their relations with Moscow, despite the commission by its political entity of the ongoing genocide against the people and the independent Republic of Chechenya, are in fact collaborating with this ongoing genocide operation by not dissociating themselves trout that political entity.
178. All States are tinder the following obligations which emanate from modern international law, the legal implications of the criminalization of aggression and genocide, and the general principles of law as the major source of modern international law.
178.1 Any and all States are under the obligation to freeze immediately all kinds of relations, diplomatic, economic and otherwise, with the political entity in Moscow until it ends its aggression, genocide and occupation against the people and the independent Republic of Chechenya, and until it makes public the names of all the persons responsible for or have taken part in those crimes, apprehend and extradite them to the independent Republic of Chechenya, in order to exercise its judicial sovereignty, since the crimes had their effect within its territory.
178.2 The bases for formally recognizing the independent Republic of Chechenya are now evident and such formal recognition is impelling as a frame of work for assisting the people and the independent Republic of Chechenya to prevent and suppress the re-commission of genocide against them which is going on since 11 December 1994.
All States of the world are under the obligation to formally recognize the independent Republic of Chechenya, now called Chechen Republic-ltchkeria.
178.3 All States, and other entities, whether governmental or otherwise, are under the obligation to assist the people and the independent Republic of Chechenya in self-defense to put an end to the ongoing genocide against them, until such an end is achieved by action authorized by tile United Nations Organization.
178.4 All States are tinder the obligation, when acting within international organizations, to observe the above obligations and to pronounce themselves actively and positively through the vote or otherwise. We will explain this later on when dealing with their obligations within the UNO.
THE SPECIAL OBLIGATIONS OF
STATES PARTIES TO
THE GENOCIDE CONVENTION
The Parties to the Genocide Convention
179. The Parties to the Genocide Convention are under it number of obligations.
1. According to Article 1 of the Convention, they are under the obligation to prevent genocide This obligation can only be achieved by using force to assist the victim countries and peoples in self-defense to put an end to the genocide acts.
2. They are tinder the obligation according to Article VIII of the Convention to call upon the competent organs of the United Nations Organization to prevent and suppress genocide Article
VIII states:"Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III".
180. The Parties to the Genocide Convention are themselves Parties to the United Nations treaty and Members of the United Nations Organization; and their obligation to prevent and suppress acts of genocide is affirmed by their obligation under Article 43 of the Charter of the United Nations to make available the necessary armed forces, facilities and means.
181. Since the question of suppressing and punishing genocide cannot be left to the Security Council with its small number of members, and the possible use of veto, the States Parties to the Genocide Convention are under the obligation to call upon the General Assembly to take appropriate action under the Charter of the United Nations to prevent and suppress the ongoing genocide against the people and the independent Republic of Chechenya.
THE SPECIAL OBLIGATIONS OF
STATES MEMBERS
OF THE UNITED NATIONS TREATY
AND OF THE UNITED NATIONS ORGANIZATIONThe Parties to the United Nations Treaty
182. All Parties to the United Nations Treaty and Members of the United Nations Organization are under the obligation to give effect to modern international law, including the prevention, suppression and punishment of genocide.
183. In this regard they are under the following specific obligations:
183.1 The obligation to recognize the independent State of the Chechen Republic.
183.2 The obligation to assist the Chechen Republic in its self-defense against the ongoing genocide.
183.3 The obligation to convene die General Assembly to see to it that any and all necessary and sufficient measures are in fact taken to put an immediate end to the ongoing genocide against the people and the independent Republic of Chechenya.
183.4 The obligation to provide the UNO with all necessary arms, facilities and means to put an immediate end to the ongoing armed genocide] aggression This obligation is explicitly embodied in Article 43 of UN Charter.
The obligations of UN Member States
acting in the United Nations Organization184. A number of legal considerations have to be pointed out to counteract the prevailing manipulation of international law and the abuse by the genocide-gang of the powers of the UNO.
184.1 The UNO is an implementing machinery of the UN treaty. As such it can have no absolute powers. Its powers are limited by three main sources: (a) The purposes and principles
stated in the UN treaty, (b) the tasks assigned by the UN treaty to each of its main organs, and (c) the general principles of law recognized by civilized nations as the major source of modern international law after UN treaty.184.2 The UN Members when acting within the UNO have no absolute powers. They are under the obligation to act in conformity with the three main sources mentioned under the preceding paragraph. The vote is not a privilege. It is a right and an obligation. It is a function and must be exercised as a tool of implementing UN treaty. The International Court of Justice have affirmed in its advisory opinion of 1948 in what I call the "vote case" that every UN Member State, in pronouncing itself through the vote, has to conform to the provisions of UN Charter.
184.3 The UNO is thus a machinery through which the Parties to the UN treaty are to carry out their obligations embodied in that treaty. The UN Members as Parties to the UN treaty cannot act within the UNO in a manner which frustrates the implementation of that treaty, otherwise the machinery created to implement the treaty will be a tool to be used by them themselves to avoid and violate their own obligations under that treaty. In other words, the UNO has no existence by its own, and is only existing to be used as a tool to carry out the obligations provided for by the UN treaty, and the UN Members are under the obligation to use the UNO actively and positively to achieve that end.
184.4 The General Assembly is the ultimate authority to decide oil the appropriate action to prevent, suppress and punish genocide, and is under the obligation to act accordingly. The Security Council cannot be entrusted to take such action in a case of genocide, for two reasons: (a) It is inconceivable that the intimate prevention, suppression and punishment of genocide can be subject to the judgment of the Security Council with the very small number of its members and the possible use of the veto by ally of its Permanent Members (b) The Security Council is only empowered in cases which are far less serious than genocide (Article 24 UN Charter). It is therefore consistent and effective to maintain that the UN General Assembly is the competent organ to decide in cases of genocide.
The Security Council, according to the provisions of Chapter VII of the Charter of the United Nations, is under the obligation to take provisional and enforcement measures to put an immediate end to genocide. In case the Members of the Security Council fail to carry out their obligations, the General Assembly is bound to take such appropriate and immediate action to put genocide to an end, not only because genocide falls outside the competence of the Security Council, but also on basis of the Uniting for Peace Resolution no.377 (V), of November 3, 1950 (see Annex IV). Its operative part states:
"1. Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefore. Such emergency special session shall be called if requested by the Security Council on the vote of any seven (now nine) members, or by a majority of the Members of the United Nations...”
(text between brackets added)Under the operative parts 7 and 8 of the Uniting for Peace Resolution, the General Assembly called the Member States to make available to it or to the Security Council the necessary resources, both for action under the General Assembly or the Security Council, as well as action in individual or collective self-defense.
The Uniting for Peace Resolution was implemented in the cases of Suez Crisis (1956), Hungary (1956), Lebanon and Jordan (1958), the Congo (1960), and the Pakistan Civil War (1972).
185. It is self-evident that the Secretary-General of the UNO is under the obligation to report immediately cases of genocide to the Security Council, to the General Assembly, and to all Members of the United Nations.
186. The Secretary General of the UNO is thus under the obligation to report immediately this case of ongoing genocide against the people and the independent Republic of Chechenya to the Security Council, to the General Assembly and to all Members of the United Nations Organization.
This question of the obligations of UN Members is a basic one, and we feel it necessary to elaborate it.
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