Richard Falk, TFF Associate
May 3, 2022
The time has come for civil society initiatives to counter the disastrous global confrontation that is now endangering the world, and indeed even species survival prospects, in the pursuit of geopolitical goals by the United States disguised somewhat with media complicity that continues to convey the impression that the Ukraine War is about the defence of Ukraine.
I believe this is a basically false and potentially dangerous image, including for Ukraine, and even for the main disseminator of hostile geopolitical propaganda, the U.S. government and the North American people. Perhaps, it should not be a surprise that only the political extremes of right and left understand the Ukraine War as a human disaster that is already spilling across the borders of Ukraine, with far worse to come without even considering the growing nuclear dangers.
In light of this perception, I am proposing the establishment of a civil society tribunal along the lines of the Russell Tribunal that brought independent views to the fore on the Vietnam War in the midst of the Cold War in 1966-67. This experience inspired many notable efforts along the same lines, most notably organized under the sponsorship of the Basso Foundation in Rome.
Fittingly in some respects, was the elaborate series of such initiatives in response to U.S. aggression against Iraq in 2003 culminating in the very significant Iraq War Tribunal of 2005. The proceedings of that event, held in Istanbul, bear careful scrutiny in the present atmosphere. This self-funded event, orchestrated brilliantly by a group of Turkish progressive women, brought together leading jurists and moral authority figures including Arundhati Roy who served as the chair of the jury of conscience that sat in judgment.
It is my judgment that such a tribunal devoted to passing judgment on the Ukraine Wars, constituted on the basis of urgency, is more important than any of these previous events because the stakes for humanity are higher.
The use of the plural is not a typo, but reflects my view explained in prior articles that the Ukraine Crisis is best interpreted as three interrelated wars with contradictory features:
- Level 1: Russia vs. Ukraine;
- Level: 2: U.S. vs. Russia;
- Level 3: Western Ukraine vs. Donbas Region.
I propose in this spirit a tribunal named Peoples Tribunal on the Ukraine Wars.
The case for such an initiative is not only to give expression to views of the Ukraine Crisis that take international law, geopolitical crime, and nuclear dangers seriously but also in view of the political incapacity of the UN to act effectively and responsibly when geopolitical actors get heavily embroiled in such a violent conflict which threats world peace generally and causes massive suffering throughout the world, especially in the least developed countries or in societies dependent on import of basic foodstuffs and energy for reliable supplies at affordable prices.
Most of the people vulnerable to such a mega-crisis live in states that have hardly any influence in the formation of global policy. In view of this normative vacuum, I believe strongly that transnational civil society has the responsibility, and indeed the opportunity, to seek to fill it.
Clarifying the Background
First, when it comes to war/peace issues there exist two operational sets of norms with respect to international relations: (1) International Law, binding on all sovereign states; (2) Geopolitics that privileges a few powerful states. The identity of geopolitical actors is not clearly identified as is that of sovereign states, signified by the membership of 193 states in the UN, effectively all. One influential guideline as to geopolitical identity is contained in the UN Charter, taking the form of the right of veto conferred on the five Permanent Members of the Security Council (also known as the P-5) who happened to be the winners in World War II and also the five countries first to acquire nuclear weapons.
As the composition of the P-5 has remained frozen in time for more than 77 years, it is no longer descriptive of the geopolitical landscape, if it ever was, and for that reason, geopolitical identity is more blurred and problematic than in the past. Some P-5 members have declined in both hard and soft power since 1945, such as the UK and France, and seem to lack the capabilities and stature to qualify any longer as first-tier geopolitical actors.
In contrast, countries such as India, Japan, Germany, Brazil, Nigeria, Indonesia, South Africa have increased their capabilities and raised their stature in such ways as to qualify existentially as ‘geopolitical actors’ at least regionally, and in some instances, globally.
From a normative point of view the distinction between international law and geopolitics is fundamental, and again is made clear by the significance of P-5 status within the UN framework designed to keep the peace after World War II. International law was applicable to every state, but not obligatory for the P-5, which is what made the UN so limited in its ability to uphold hope for a globally supervised war prevention system.
Giving the Western states a veto was tantamount to acknowledging, as in prior centuries, that the UN would not be expected to implement its own Charter norms if they collided with strategic interests, but compliance if forthcoming would depend on geopolitical self-restraint or the counterforce of adversary geopolitical actors.
A similar pattern of obstruction existed when Russia was the Soviet Union, yet its participation was seen as vital if the UN was to enjoy global legitimacy, and the veto was also a matter of protecting the country against the possible tyranny of a Western majority. As the decades have shown, the U.S. in particular has used the veto (e.g. to shield Israel) or avoided the UN (as in the Vietnam War and NATO Kosovo War) when it thought its proposed plan of action would be vetoed.
The main lesson is that the UN was deliberately disempowered from the attempt to implement compliance with the UN Charter in relation to geopolitical actors, and the existential reality was not dissimilar from the Westphalian structure of and experience with world order since the mid-17th century.
Regulation of the Great Powers, as they were formerly called, depended on a mixture of self-restraint and what came to be known as ‘the balance of power,’ repackaged in the nuclear age as ‘deterrence.’
It is under challenge from many non-geopolitical states, most recently in the form of the Treaty on the Prohibition of Nuclear Weapons (TCNP), but with the distressing non-participation of all of the nuclear states and those staking their security on ‘the nuclear umbrellas’ provided by geopolitical actors.
A second set of considerations relate to what I call the ‘Nuremberg Exception,’ which means that a geopolitical actor loses its impunity if it is defeated in a major war.
This attitude is evident in the course of the unfolding two-level war in Ukraine. The U.S. at the highest level of its government has been condemning the Russian attack as a war crime that should engage the accountability of Putin if the International Criminal Court acts to fulfil its mandate.
This can be viewed from one angle as a kind of ‘winner takes all’ feature of geopolitical order, or from another as gross hypocrisy by recourse to this distortion of justice beneath the banner of ‘Victors’ Justice.’ It would be somewhat different in jurisprudential credibility if the U.S. had demonstrated post-Nuremberg its own willingness to be held accountable under the frameworks of international criminal law or the codified version of the Nuremberg Principles, which do not admit that a Nuremberg Exception exists, despite its persisting reality.
Thirdly, what is missing in this recital of the jurisprudential realities is the availability of a venue capable of normative assessment of the behaviour of geopolitical actors whether they are on the winning or losing side in a major war.
It is evident that the UN lacks the constitutional mandate and political independence to undertake such a challenge without a thorough overhaul of its authority structure. This would require the approval of the very actors whose behaviour would then become subject to international law, and these actors show no readiness to move in such a direction.
It is for this reason that the only way to close the accountability gap is to rely on civil society activism as a legitimate source of normative authority.
One such responsive effort, used in the past, has been to convene a tribunal based on the authority of ordinary people as representatives of society to uphold international law in the event of the failure of the UN or governments to do so. In the setting of the Ukraine Crisis, such a tribunal could be entrusted with investigating the three levels of the war from the perspective of international law, with the addition of an aspiration norm that extends the reach of the tribunal to the geopolitical domain.
At present, inter-governmentally generated international law not surprisingly fails to criminalize geopolitical wrongdoing. This is not surprising because throughout modern history the geopolitical actors have been the principal architects of international law. I believe it has become desirable to posit the existence of a residual civil society legislative capacity somewhat analogous to the residual role of the General Assembly of the UN if an impasse is present in the Security Council with respect to a serious threat to international peace and security.
On this basis, I favour the civil society endorsement of the concept of ‘geopolitical crime’ so as to bring the US/Russia geopolitical war within the ambit of the authority of The Ukraine Wars Tribunal.
There are two obvious weaknesses of this line of thinking that should be acknowledged:
- First, the Tribunal lacks any formal enforcement capability, although it could call for civil society initiatives of the sort that were effective in exerting transformative pressure on South Africa’s apartheid regime.
- Secondly, the activist impulses that fund and make operational The Ukrainian Wars Tribunal are themselves self-consciously partisan, which is of course no different than intergovernmental institutions.
Such partisanship will be subject to criticism from start to finish, which gives some sense that the nature of its undertaking and belief structures will become transparent through time.
It is evident that this proposal is principally an undertaking whose effectiveness will in the first instance be registered symbolically rather than substantively in the sense that nothing immediate will change behaviorally in the prosecution and conduct of the three Ukrainian wars.
Symbolic impacts should not be underestimated. The political outcomes in the most salient wars since 1945, including the epic struggles against colonialism, were controlled, often after many years of devastating warfare, by the weaker side if measured by material, especially military capabilities.
I remember hearing the North American president, Lyndon Johnson, in the mid-1960s boast that there was no way the United States could lose the war to Vietnam, ‘a tenth-rate Asian power.’ Symbolic venues shift power balances, and even material interests over time.
The struggles against slavery, racism, and patriarchy each manifest this dynamic.
What at first seemed futile somehow became history!
In conclusion, I hope some readers throughout the world will feel motivated enough to make the Peoples Ukraine Wars Tribunal a reality!
About Richard Falk
Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or co-author of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from the Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.
And he has been a TFF Associate since 1986.