CYIL Vol. 6, 2015

JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION (first) Gulf War began on 2 August 1990 and ended on 28 February 1991. 22 The military operation was carried out in modified form, as a coalition of willing States led by the United States. 23 In that the present foreign policy conduct of Putin’s Russia does not bring it into odium as a violator of the peremptory norm concerning the use of force against an other State, against Ukraine, 24 preference has been given to subversion. This subversive activity is used as a tool to achieve political goals, because it generally carries less risk, cost and difficulty, as opposed to open belligerency – which means being engaged in a war, in an inter-State conflict. By making use of unmarked Russian troops it achieved the annexation of Crimea (18–21 March 2014). 25 By using troops of so-called volunteers in military uniforms without insignias (even though armed with heavy weapons), which conduct their activities lacking unequivocal accountability to the home State, Moscow is so trying to seize control of Russian-speaking areas of Eastern Ukraine (industrial Donbass) 26 but continuously denies its said support for insurgents in that part of Ukraine. Regrettably, this is Putin’s way for how Russia, as permanent member of the Security Council (with power of veto), is today respecting the peremptory norm prohibiting having recourse to force against another State. 27 2.2 Norms of the most basic human values The hard-core principles of human rights concern the human being’s inherent right to life, as well as his rights to physical and psychical integrity and dignity. Atrocities of the Second World War period which caused enormous harm to humanity led to the conclusion of the first post-war human rights treaty. 22 To be distinguished from the second Iraq war, which began on 20 March 2003. This because Iraq did not respect the cease-fire conditions of the first war as determined in S/RES/687 (1991). That intervention passed without authorisation of the Security Council. But after Resolution 1483 (adopted on 22 May 2003) and others, the Security Council took care of the defeated Iraq. 23 See Article 48(1) of the UN Charter: “The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them (italics added) as the Security Council may determine.” 24 See http://en.wikipedia.org/wiki/Budapest_Memorandum_on_Security_Assurances. Infringing on the Budapest Memorandum on Security Assurances (1994), which respects Ukrainian independence and sovereignty within its existing borders. Hereby Ukraine gave up its nuclear weapons stockpile. 25 For details see http://en.wikipedia.org/wiki/Annexation_of_Crimea_by_the_Russian_Federation 26 In ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 8 sets down that the conduct of persons shall be considered an act of a State if these persons are in fact acting under control of that State ( de facto organs). This provision could be decisive for determining the responsibility for the shooting down of Malaysia Airlines Flight 17 on 17 July 2014; for details see http://en.wikipedia.org/wiki/Malaysia_Airlines_Flight_17 27 See http://en.wikipedia.org/wiki/2014%E2%80%9315_Russian_military_intervention_in_Ukraine.

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