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Expert Assessment: Kučan’s Letter Is Strongly Ideological And Politically Motivated

The public letter by Milan Kučan and his co-signatories legitimises the moves of Putin’s undemocratic, authoritarian, aggressive and criminal regime, while at the same time blatantly disregarding some fundamental rules of international law – such as the prohibition of aggression and the inviolability of international borders. It is interesting that the letter was signed by some who are supposedly even experts in international law and international relations, as pointed out by international law expert Dr Miha Pogačnik, who explained, among other things, that the prohibition of aggression is a cogent norm, and its violation cannot lead to legal consequences or legally binding results.

Milan Kučan and his co-signatories – left-wing intellectuals, cultural workers and even athletes, have sent a frightening letter to the public, which Moscow must be delighted to see, as it calls for an end to the arming of Ukraine. This is certainly grist to the mill of Russia’s colonial policy, but in reality, it is, above all, a letter that will mislead many readers. Without a doubt, we are all people who want peace, and that all sounds good, but in reality, under the guise of some dire need to achieve peace very quickly, Russian aggression is being legitimised because it puts the aggressor on an equal footing with the victim. The only one who can decide when the fighting will end is Russia. If it withdraws to its internationally recognised borders, the war will be over – and as long as it is on foreign territory, Ukraine is, of course, entitled to defend itself.

“In my opinion, this letter, which was written by a group of citizens, is strongly ideologically and politically motivated, and in this ideological and political engagement, some essential things are being overlooked,” said international law expert Dr Miha Pogačnik, who went on to explain that one of the overlooked facts is that Russia is the aggressor state, and Ukraine is the victim. “And under international law, aggression is prohibited by a cogent norm of international law – which also means that all achievements based on aggression are null and void, and against everyone, against the “erga omnes”, i.e. against the international community as a whole,” he explained. Russian territorial gains made on the basis of aggression – this applies to Crimea as well as to Donetsk and Lugansk – are therefore considered null and void under international law. It follows that this result is null and void anyway, and any peace talks will, of course, have to take this into account.

” The political talk of losers and winners is at odds with the talk of peace. In this war, neither side can win. It can only be ended at the negotiating table. To negotiate is not to capitulate or to justify Russian aggression. To negotiate means to responsibly search for solutions and accept concessions on both sides with the aim of preventing more deaths and the escalation of evil. We therefore expect you, the governments of the countries of the European Union, NATO, the United States of America and the Russian Federation, to build an alliance to stop the fighting, to stop further armaments and to start negotiations,” wrote Kučan and his co-signatories, informing the governments of the European Union, NATO, the United States of America and the Russian Federation, among others, that they had no mandate for war.

Russia has definitely violated international law, while Ukraine has exercised its right to self-defence

According to Pogačnik, the prohibition of aggression is also linked to one of the fundamental principles of international law, i.e. the territorial sovereignty and independence of states and the related principle of the inviolability of state borders, which has been expressed in international practice and is also substantiated by the Helsinki Final Act of the CSCE (now the OSCE: Organisation for Security and Co-operation in Europe), which states that international borders may not be unilaterally and forcibly altered. Russia is a party to the Charter which prohibits aggression, as well as to other important international documents that also bind it. “Here, Russia has definitely violated international law, while Ukraine has exercised its right to self-defence under Article 51 of the Charter,” Pogačnik pointed out, adding that Russia’s claims that it attacked Ukraine because Ukraine was planning to attack Russia are, in a way, ridiculous (why would Ukraine attack Russia?).

On the other hand, preventive self-defence is not even allowed until you are attacked. “You are not allowed to defend yourself until you are attacked, the condition for self-defence is an armed attack or aggression,” the international lawyer stressed. This is what happened in the case of Russia’s aggression against Ukraine, and the latter has the right to defend itself, alone or collectively, with its friends. How much and how the friends contribute is their decision – in the event of aggression, all the countries of the world have the right to help Ukraine, including by armed force, that is indisputable. The debate on whether or not NATO will intervene is, on the one hand, a debate on the NATO-Russia relationship, but on the other hand, it is internationally permissible – not only for NATO but also for any other country.

This letter is somewhat misleading, Pogačnik believes

It is clear that it sounds right to talk about peace, and of course, we are all in favour of peace. But when there is a clear aggressor on the one side and a clear victim on the other, peace can only be achieved when the aggressor retreats to its starting position. When will peace be achieved in this situation? As the Finnish Prime Minister said: when Russia withdraws from Ukraine. In international law, this is when Ukrainian territory is returned to its internationally recognised and internationally protected borders. That means the pre-2014 borders before Russia invaded the Crimean Peninsula. “I will not say that I was surprised by the letter, some names appear in almost every ideologically charged situation. Yet, by my standards, it is unacceptable to sign something that attempts to legitimise the achievements of an undemocratic, authoritarian, aggressive and violent regime like Putin’s,” said Pogačnik, who finds it interesting that among the signatories we find names of people for whom we assume they know something about international law and also something about international relations – a professor of international law, a professor of international relations, and so on. So perhaps this is another additional indicator of the dire need to ideologically justify the achievements of Putin’s aggressor regime, which has indisputably committed a number of international crimes that have also been documented, which is an additional dimension under international law.

For the international community to push for peace talks in the given situation is a bad political signal

The prevailing practice in the international community is to compel the aggressor by internationally permissible means – which includes armed action under Article 42 of the UN Charter – to push the aggressor back behind its borders. We know that there was a collective reaction to the Iraqi aggression against Kuwait, and the right of self-defence was, after all, also exercised by Slovenia and Croatia in connection with the Yugoslav, or, if you like, the Greater Serbian aggression against their territories. It is customary in modern international law for the achievements of the aggressor not to be recognised and then, at the peace conference, for the victorious states to dictate the terms. To depart from this practice and to recognise certain territorial achievements – even if they are not acknowledged out loud but merely tolerated, as in the case of Northern Cyprus – is an incentive for those states that have certain territorial claims or certain historical aspirations. For the international community to push for peace talks between Ukraine and Russia until the latter returns to its internationally recognised borders and leaves Ukraine’s internationally recognised territory alone is internationally legally nonsensical and incorrect, and of course, it sends a bad political signal to those who do not want to abide by these rules or who have certain ‘ideas’. This situation could certainly have repercussions in Taiwan – China is certainly paying close attention to the attitude of the Western democratic world towards unilateral military moves or occupations.

A bilateral legal transaction, i.e., an agreement, cannot legitimise a breach of international law, which is a breach of an imperative, unconditionally binding norm. Such a treaty is null and void, in the same way as if two states had agreed to attack a third. “The prohibition of aggression is a cogent norm, and its violation cannot lead to legal consequences or legally binding results,” Pogačnik explained. In the event of aggression, even Ukraine’s agreement to cede part of its territory to Russia would constitute an illegal agreement. Therefore, if one country invades and carries out aggression and occupies territories, no international treaty can follow from this, except for a peace treaty that imposes sanctions on the defeated aggressor – which is what happened, for example, in the Second World War.

The average reader is misled by the letter

Of course, it is entirely possible that some of the signatories of the public letter had a completely sincere intention because they are not familiar with the matter or do not know how things work according to the norms of international law. But the letter is likely to have the effect, among other things, of bringing in experts in the field to explain that what is written in the letter is utterly nonsensical – and then these experts will likely be discredited by certain people for “being against peace” and for putting up with the hundreds of unnecessary casualties that are occurring on a daily basis. “Why is Pogačnik talking about international law if people are dying, while Kučan said there must be peace,” some might say. However, even the latter must realise that this is a security issue, and that Moldova may be next if things go on like this. Or Poland, as some close to Putin have already said. In all of this, it should also be pointed out that, under international law, Russia could, in principle, obtain legal title to the occupied territories if Ukraine had not defended itself. However, this cannot happen in the case in question, because of the prohibition on aggression and the prohibition on unilateral changes to international borders – but it is nevertheless important that the invaded country also demonstrates a willing element. These are, of course, international law considerations, but we must be realistic and keep in mind the fact that countries that claim to respect international law may also be in breach of it – and yet such countries also refer to it, which means that international law must be respected and invoked as a legal basis.

Sara Bertoncelj

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