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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 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
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
27 See