Argument
The “Ukraine Defense Contact Support Group” (DCG) and others supporting Ukraine should take collective action to suppress international supply lines of bombs and weapons to the Russian Federation for use against Ukraine and Ukrainian civilian targets under the International Convention for the Suppression of Terrorist Bombings,(CSTB) despite near certain anticipated challenges under Article 19(2) of that treaty.
Article 19(2) of the CSTB excludes armed conflict between nation states and activities by nation state militaries doing their official duties from CSTB governance, an exclusion the basis of which this paper will dispute as applied to the character of the Russian state military within its 2022-23 aggressions, state terror, and unlawful bombing of Ukrainian civilian targets. These include, per Article 1 “infrastructure facilities, places of public use, state or government facilities, and transportation systems” needed for Ukrainian civilian life and culture to survive what has become an annihilation campaign ordered by Putin.
DCG and NATO nations should assert that Article 19(2) of CSTB does not exclude Russia’s military forces, Wagner Group, and other imported mercenaries conducting terrorist bombings of Ukraine from enforcement activities under the CSTB. Neither would Article 9, Section 2 shield accomplices or those who contribute “in any way” to Russia’s state terrorist bombing per CSTB Article 2, Section 3, (a)-(c).
The jurisdictional trigger for DCG and NATO nations that are party to the CSTB would be Russia’s continuous terroristic bombardments of Ukrainian civilian infrastructure facilities, places of public use, state or government facilities, and transportation systems combined with military and nuclear threats toward DCG and NATO states in an attempt to coerce DCG and NATO states “to do or abstain from doing any act,” per CSTB’s Article 6, Section 2(d). Specifically, Moscow has used escalating bombardments on Ukrainian civilian areas and threats to intimidate and coerce Ukraine, DCG and NATO states to (1) negotiate with Moscow over Ukraine’s fate thus implying Ukraine is not a sovereign state; (2) give guarantees not to admit Ukraine into NATO, and (3) to cease giving military aid to Ukraine to meaningfully exercise its right of self defense.
Ukraine as a state party to CSTB fits all of the jurisdictional criteria for invoking and engaging in CSTB suppression activities itself and does so to the extent it can, however struggles now merely to expel invading Russian forces. One missing, incremental piece in shortening the war likely falls on DCG and NATO states to enforce the CSTB on suppliers of Russian terror weapons as a layer of self-help against terrorist compulsion and a fringe benefit to Ukraine’s defense.
What does CSTB specifically prohibit?
International Convention for the Suppression of Terrorist Bombings
“Article 2 of the Convention declares that any person commits any offense within the meaning of the Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system, or an infrastructure
facility, with the intent (a) to cause death or serious bodily injury or (b) cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.”
(Article 2 also applies to accomplices and contributors to the terrorist bombing.)
Russian forces, accomplices, and some main contributors to their bombing capability have been bombing Ukrainian civilian infrastructure facilities, places of public use, state or government facilities, and transportation systems throughout Ukraine in 2022-23. (URL is to the interactive map of Ukrainian civilian harm events at Bellingcat). If continued as threatened, Russia’s war will trend in annihilation of Ukrainian civilization unless Ukraine surrenders.
Nation state supply, laundering, and shipping of bombs, explosives, and lethal devices that Russia’s mixed state military and mercenary force has used in terrorizing Ukrainian civilians include ammunition, rockets, missiles, explosives, kamikaze drones, lethal devices and their components by land, sea, and air that Russian forces deliver, place, discharge, or detonate against Ukraine’s civilian targets outlined in Article 1 of CSTB. Supply lines in international transit not in another state’s territory that ultimately contribute to Russia’s bombardments should be subject to CSTB’s authorized enforcement and suppression.
The Expected Challenges and Possible Responses
Article 19(2) of the CSTB would seem to take away recourse for treaty members whose jurisdiction would otherwise be triggered by terrorist bombings if the terroristic bombings were done or sponsored by another nation state’s military forces under the label of armed conflict as “governed” by other humanitarian laws (not the CSTB):
Governing Means Regulate, Control, Steer: Consider the Article 19(2) conditional language (underlined, bold emphases): “The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law,” and “inasmuch as they are governed by other rules of international law” as setting the conditions on the exclusion of state military forces from CSTB enforcement and prosecution.
The CSTB Article 19(2) language opens the door to conditional joint governance with the “international humanitarian law” and “other rules of international law” in the phrases “which are governed” and “inasmuch as they are governed.” If the “humanitarian international law” of war as a subject matter area of law is factually and historically proven to be ungovernable against a U.N.S.C. member veto, the humanitarian law does not govern, but the interested U.N.S.C. nation state governs by fiat.
As “international humanitarian law” and “other rules of international law” do not actually govern Russia’s treaty-violating, terroristic bombing behavior due to Russia’s U.N.S.C. veto, conditions for exclusion under Article 19(2) language fail and Russian state military forces’ terroristic bombing of Ukrainian civilian targets could be subject to CSTB enforcement and prosecution by states with jurisdiction.
Reinforcing this argument is that after Russia’s invasion of Ukraine in February 2022, the U.N. attempted to use “international humanitarian law” and “other rules of international law” to stop Russia from its illegal aggression and Russia used its U.N. Security Council veto power to quash the U.N. effort. Many in foreign policy talk in reverent tones about “realism,” yet realism is not reality. Realism is but a stultified set of ideations about reality that favor fiat over treaty law in contradiction with the U.N. Charter and purpose. Rational law requires reality-rooted evidence of its actual governance of its subject matter, not realism’s zombified non-governance of words-alone. Law that does not actually govern the problems it purports to govern, has no meaning, effect, or governing reality. It is illusory to the point that it does not exist in the case of U.N.S.C. members who violate international laws and veto attempts to stop them. Russia is such a U.N.S.C. member.
Indeed, the law of war has proven as historically unenforceable against Russia under Putin as against the Soviets for nearly an unbroken century, and at times against other United Nations Security Council members using or abusing their veto powers.
This reality combined with the reading of CSTB’s Article 19(2)’s conditional phrasing and reiteration should open the door to all CSTB states with jurisdiction to take incremental measures to suppress and put an end to that terroristic bombing and hasten the end of Russia’s threat to world peace.
What is really bothering some U.N.S.C. members? If the CSTB can be used against Russia, will it be used against them? In reading the CSTB, note that Article 1 lists specific civilian facilities and infrastructures that tend to sustain civilian homes, life, work, peace, health, safety, care, and where civilians gather, combined with Article 2’s intentional and knowing language to provide a basis to distinguish state terrorist bombardment of civilians from collateral damage to civilians incidental to nation state militaries striking legitimate military targets in wars of national defense.
As the international laws of war have not and clearly cannot elsewhere govern Russia’s conduct of state terrorism and sponsorship of terrorism against Ukraine, the CSTB treaty and others like it most likely authorize criminal law enforcement authority outside of Russia’s veto power to suppress the suppliers of Russia’s terrorist bombing and so help shorten the war, an outcome that would go to the heart of the U.N. charter.
Clues from Deliberations: U.S. Senate Advice and Consent Questions and Answers by the U.S. Executive on Article 19(2)
“Military Forces of a State” Exception to CSTB: Understood, Not Reserved as Absolute: The United States Executive, in answers to one Senate question during advice and consent for ratification of the CSTB stated its “belief” in the meaning of Article 19(2):
“..we believe it is helpful to note in an Understanding that the
exception for military forces of a state is absolute.
The reference in Article 19(2) to “other rules of international
law” includes the international instruments relating to the law of war
(including the 1949 Geneva Conventions) and the international law of
state responsibility. There is no formal negotiating history on this
subject, but these bodies of law were referred to by the negotiators as
the justification and explanation of the “military forces of a state”
exception in that article.”
There is no reason to write a justification for excusing nation states from state terrorism under a treaty unless there was a consciousness among the negotiators that there was an unjustifiable context for doing so. Why would CSTB negotiators justify deference to humanitarian law that systemically, repeatedly, and practically does nothing to stop U.N.S.C. states that sponsor or conduct terroristic bombing of civilians not in true self-defense? Because what is unjustifiable brings the most justifications from those who want to be above the law.
This consciousness and moment of conscience shows up in the precatory phrasing from the Executive that “we believe it is helpful to note in an Understanding that the exception for military forces of a state is absolute..” instead of mandatory language such as ‘we must assert in our Understanding that the exception for military forces of a state must be absolute.’
Also, the United States did not go beyond a senatorial, non-binding “Understanding” to make the Article 19 exception for military forces absolute. It could have done so by expressing a “Reservation” changing Article 19(2)’s state military conditional exception language into an absolute exception with legal effect for the United States. It did not do so.
By the late 1990s, enough U.N. member negotiators of CSTB were likely wondering what the United States might do with its dominant superpower almost a decade out from the Gulf War and end of the Soviet Union. In that light, the negotiators’ intent that the language of the CSTB Article 19(2) remain conditional makes sense, and to the credit of the U.S. Executive, leaving it out of Reservations. And while those concerns about the U.S. were based in part on mythic U.S. hegemony, Russian state terrorism and state sponsorship of terror in pursuit of 21st Century imperial ambitions does validate the conditional language view of CSTB Article 19(2) today.
While the United Nations fulfills some important international humanitarian, peacekeeping, and security functions, history indicates that it cannot and does not use the law of war to govern lawless or terroristic behavior by nuclear powers on the U.N. Security Council that can abuse veto power as Russia has and does over majority U.N. resolutions. However, the U.N.’s collective imprimatur on treaties such as the CSTB lend some U.N. legitimacy (strength in numbers) to the individual treaty-members’ rights to self-help law enforcement powers to suppress and prevent terrorist murder and mayhem whether state or non-state. U.N.S.C. members cannot veto treaties.
We contend therefore that all CSTB parties could bypass the CSTB state military exception in Article 19(2) that did not make the state military forces exception absolute in a “Reservation.” CSTB parties supporting Ukraine who have a jurisdictional angle could get busy cutting off supplies not only to Russia’s aggressing, terroristic forces attacking Ukraine, but also to all nations in a chain of supply for same in a global terrorist bombing suppression strategy.
State Sponsorship of Terror and Lawful State Military Action: In addition to the above, a separate Senate question and answer on the same issue of state military exemption from the CSTB noted that Article 2’s penal provision says that “any person commits an offense if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device..” focusing on the implications of the term “unlawfully”:
“Am I correct in my understanding that the term “unlawfully” is
not meant to exempt state-sponsored terrorism? What then, is the
meaning of the term?
Answer. The word “unlawfully” in Article 2 of each of these
Conventions is not meant to exempt state-sponsored terrorism. It is a
term used in many international conventions, including the prior
counterterrorism conventions, to make clear that States are not
required to criminalize conduct which under common principles of
criminal law is not considered unlawful (e.g., properly authorized use
of force by its own police forces or conduct permitted as self-
defense), even if those actions are otherwise described in the offense.”
So we see the United States Executive tacitly supported written and implied conditions for Article 19(2) to exclude nation state military forces’ terroristic bombardment from the CSTB coverage, as follows: (1) That “other international law” must govern the state military forces violating said laws that the CSTB also covers to exempt such state military forces from CSTB anti-terror measures; and (2) by expressly omitting state sponsored terrorism from what is considered lawful bombing by a nation state military in answer to Senate questions about CSTB Article 2, answering that “(e.g., properly authorized use of force by its own police forces or conduct permitted as self-defense)” make a state military’s bombing “lawful.” These Senate report entries confirm that the CSTB did not absolutely preclude punishing unlawful nation state “sponsorship” or commission of terroristic bombing of civilian targets where there was no other recourse to remedy it for UNSC veto abusers.
The above conditions on and premises to the Article 19(2)’s exclusion of nation state military activity from CSTB are implied in the published Understandings of the United States submitted to the U.N. on the CSTB and clearly not present in the Reservations:
Reservation:
“(a) pursuant to article 20 (2) of the Convention, the United States of America declares that it does not consider itself bound by Article 20 (1) of the Convention; and
(b) the United States of America reserves the right specifically to agree in a particular case to follow the procedure in Article 20 (1) of the Convention or any other procedure for arbitration.”Understandings:
“(1) EXCLUSION FROM COVERAGE OF TERM “ARMED CONFLICT”. The United States of America understands that the term “armed conflict”in Article 19 (2) of the Convention does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.
(2) MEANING OF TERM “INTERNATIONAL HUMANITARIAN LAW”. The United States of America understands that the term “international humanitarian law”in Article 19 of the Convention has the same substantive meaning as the law of war.
(3) EXCLUSION FROM COVERAGE OF ACTIVITIES BY MILITARY FORCES. The United States understands that, under Article 19 and Article 1 (4), the Convention does not apply to:
(A) the military fores of a state in the exercise of their official duties;
(B) civilians who direct or organize the official activities of military forces of a state; or
(C) civilians acting in support of the official activities of the military forces of a state, if the civilians are under the formal command, control, and responsibility of those forces. “
Russia’s Forces in Ukraine Today Arguably Not “Military forces of a State” Under CSTB
Regarding CSTB’s definition of the “Military forces of a State” in Article 1, Section 4 of CSTB (with our added emphasis in bold italics), and in view of Russia’s February 2022 invasion, war of aggression, and terroristic bombing and killing in Ukrainian civilian areas also listed in CSTB Article 1, what are ostensibly Russian state military forces fighting in Ukraine do not measure up to that definitional standard:
4. “Military forces of a State” means the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defense or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.
The CSTB definition and understanding of “Military forces of a State” does not factually match the character of organization, training, equipping, nor purpose of the Russia’s armed forces in their invasion and aggression against Ukraine and in their serial bombing of Ukrainian civilian targets as enumerated in Article 1 of CSTB. Specifically, Russia’s repeat, systematic bombardment of Ukrainian civilian targets falls short of Article 1, Section 4’s characterization as a force “organized, trained, and equipped under its internal law for the primary purpose of national defense or security.” Indeed, the “special military operation” ran ultra vires of “national defense or security” from the start because Ukraine’s military did not attack Russia, breach its borders, or even conduct a major military buildup to do so inside Ukraine.
The terroristic bombing of Ukraine’s civilian areas and facilities shows that the Russian military devolved from a “Military force of a State” into a group of militants unmoored from Russia’s internal law of national defense whose authority became mixed and confused, and confused with that of the private, mercenary and designated criminal organization, Wagner Group. The Russian Ministry of Defense recently ignored and then praised Wagner Group’s fighting in taking credit for gains in Ukraine’s salt-mining town of Soledar. The ministry’s commander in chief President Putin and his fellow oligarchs had variously awarded, recognized, criticized, and encouraged Wagner Group’s and Kadyrovite military activities in Ukraine before Putin promoted military leaders over the war against Ukraine that they had criticized and condemned, showing confidence in his Ministry of Defense over Wagner Group and its “CEO.” All of this has badly commingled mercenary prisoner militants with the Russian state military and badly damaged the legitimacy of the Russian state, Russian state military, and any pretense to lawful nation state military activity in self-defense.
Whether Russian forces bombarding Ukraine were actually trained and ordered to act in defense of Russia versus aggressive annihilation and subjugation of neighboring states, cities, and populations that Russian leaders and private oligarchs wanted to control is answered by Russia’s conduct of its warfare against Ukraine’s civilians and civilization to an extent that its activities in Ukraine cannot fit the definition of “Military forces of a State” under any professional nation state standard, including that of CSTB Article 1.
Russia’s Self-Defense Pretense
President Putin and his military chain of command have no more than a frivolous self-defense argument where a war of aggression and bombing against civilians in a neighboring state previously treated as sovereign by the pre-Putin Russian government could credibly be considered “permitted self-defense” conduct “under common principles of criminal law” as discussed earlier in this paper by the U.S. Executive and Senate during advice and consent question and answers.
Under common principles of criminal law, if one is afraid someone might hit them one day, one cannot go hit that person first and call it self-defense. Or, in analogy to Russia’s claim to defend Russian speakers in Donbass, if children subject to an agreed custody arrangement favoring one’s ex-spouse are fighting among themselves in the ex-spouse’s side yard, one cannot go join the fight and blow up some of the children, worsen their conflict, set the house on fire, and call it “permitted self-defense” or defense of the children. Ukraine did not attack or even prepare to attack sovereign Russian territory before Putin ordered Russia to undermine, proxy-attack, and then directly attack Ukraine from 2014-2023.
None of the conditions or justifications of self-defense or propriety of state process in and understood from Article 19(2) of CSTB factually exist to exclude Russia’s nation state military’s repeat, intentional, and knowing bombardment of civilians and civilian targets in Ukraine from application of the CSTB Article 2.
Finally, as to the Article 19(2) exclusion of armed conflict by armed state military forces applied to Russia specifically, Russian leadership passed laws calling it the invasion a “special military operation” and not a “war,” expressly punishing the use of the word “war” for Russians who used the term. So it seems Russian leadership admitted that its aggression against Ukraine was not a war or armed conflict for self-defense by going to such lengths to punish Russians who called it a “war.” “Armed conflict” being another word for war, it seems Russia had itself removed its “special military operation” from consideration as an “armed conflict” within the meaning of the CSTB Article 19(2) exclusion.
CSTB Parties Could Physically Suppress Global Supply Lines to Russia’s Terroristic Bombing in Ukraine
The CSTB treaty leaves enforcement duties with ratifying nation states whose enacting jurisdiction is triggered per the jurisdictional tests outlined in CSTB Article 6. Those states must pursue judicial processes to catch, search, seize terrorist contraband from, and extradite those supplying “any person” making or contributing to “in any way” the terroristic use of explosives against civilian targets listed in CSTB Article 1.
In light of the above, the CSTB and like treaties may be the only governing treaty law to fulfill the U.N. Charter and the original purpose of the formation of the U.N.S.C. at its inception.
Direct and Indirect Supply Suppression Under the International Convention for the Suppression of Terrorist Bombings (CSTB)
Based on the above discussion of CSTB applicability, DCG nations, friends, and allies should coordinate collective instruments of power to physically and legally complicate, slow, strand, freeze, challenge, suspend, seize, impound, and possibly destroy munitions, ordnance, explosives, lethal devices, or the ingredients for them trafficked by third party nations or non-state entities to equip Putin’s military and other forces to bomb and mine Ukrainian civilian areas.
Direct Collective Defense Competition
Another layer of strategic self-help outside of the CSTB that DCG nations that would be complementary to Ukraine’s self-defense would be a collective increase of DCG members’ spending on military assets, capabilities, research, innovation, budgets, military force positioning, exercises, gray warfare, and defense production to force Russia and its financial supporters’ expenditures to match, thus driving higher risks of loss for Putin’s war sponsors. However, in doing so, diplomacy and public comment from the Executive level of DCG states should assert that these expenditures, as at the end of the first Cold War, are first deterrent, and otherwise to be used kinetically in DCG nations’ legitimate defense.
Strategic Purpose
The strategy of suppressing international supply lines to Putin’s terrorizing, coercive bombings of Ukraine’s civilians and infrastructure, combined with sanctions, would starve Putin’s aggression against Ukraine and hasten conditions discouraging nation state investment and underhanded financing of Putin’s criminal warfare.
When supplies do not make it to their objective, will the end user pay for them? Will the supplier get paid? If the end user loses his war, stalemates, or his autocratic regime dissolves, will his successors pay debts to those knowingly contributing to a terror campaign against Ukraine? Are illegal activities creditworthy?
Thus, Russia’s war against Ukraine and warring intentions against the West should be made too expensive to sustain for those already quietly debating how far the costs of the Russian dictator’s power needs and ambitions will go; where the losses will stop; and how and whether Russia will be able to pay it all back.
Tactical Purpose
As conventional forces and strategic measures rise to thwart autocrats’ imperial aggressions, autocrats will turn back to gray warfare to try to divide and conquer enemies by proxy. One of those active measures is to inflict death “by a thousand cuts” via global sponsorship of terror attacks against DCG and NATO nations. Therefore, a robust, practiced nation state collective engaging in terrorist bombing suppression activities could also aid in suppressing terrorist proxy attacks directly aimed at DCG and NATO states.
Recent Historical Humanitarian Justifications
In addition to suppression of terrorist bombing, CSTB suppression activities could be characterized as international human rights operations shortening and preventing humanitarian loss and preventing the spread of refugees flows that damage U.N. member states’ tax bases, social nets, living conditions, and stability for citizens of those nations. Moscow’s weaponization of refugees in Syria, Ukraine, and Venezuela invite preventive humanitarian self-help by nations facing more fallout from repeated Putin regime behaviors in 2022-23.
Centurial Historical Demerits of Russian Claims Over Ukraine
The former Soviet-KGB and underworld iterations of Moscow’s autocratic ruling set has historically failed to humanely, competently, intelligently, and ethically govern Ukraine, and arguably Russia, for over one century.
Generations of Ukrainians, Europeans, and others have had to endure fallout from Moscow’s autocratic track records of genocide, famine, lethal nuclear accidents, energy coercion, proxy wars, pacts with Hitler and other dictators, assassinations, airliner shoot-downs, death by airplane crash, palace intrigue, suppression, violence, and unprecedented radioactive pollution over the Eastern Hemisphere.
Moscow has also used Ukraine as a war buffer (mass human and landmass shield) against those an aggressive regime over Moscow may provoke in Ukraine’s name.
In Closing
Many DCG states have historical memory of adverse outcomes caused by autocrat rulers in Moscow and their abuses of military and secret police activity on others’ sovereign territory over the past century. Putin’s actions in Georgia, Syria, Libya, Ukraine, and Venezuela make it reasonable to expect a high risk of ongoing repeated aggressions of many kinds and scales toward neighboring nations and blocs. Such a likelihood justifies preventive, preemptive action by DCG states.
