Ukraine’s Need for Fighter Jets under the UN Charter and the Responsibility to Protect

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President Biden and other nations should respond to President Volodymyr Zelensky’s repeated plea for fighter jets to protect his people from Russian bombardment. Both the UN Charter and the Responsibility to Protect, adopted in 2005 to prevent war crimes, justify weapons transfers. The United States, not only as a NATO member, but as a member of the United Nations, should help facilitate Ukraine’s acquisition of those fighter jets. The president's trip to NATO this week would be a good time to make that announcement.
In September 2005, at the United Nations World Summit, the General Assembly adopted the Responsibility to Protect to prevent future cases of war crimes, genocide, ethnic cleansing, and crimes against humanity. Now in Ukraine, the world is witnessing atrocities being committed by Russian forces on cell phones and social and mass media near hourly, and the question arises: Does the Responsibility to Protect still exist?
Has Russia committed war crimes? Russia’s leadership has directed artillery, missiles, and air strikes against urban centers, striking hospitals and healthcare centers, killing and wounding hundreds of men, women, and children. The attacks have been reported by courageous journalists worldwide. The videos of the shelling of the Mariupol maternity hospital and other civilian centers shown by President Zelensky to the U.S. Congress were particularly disturbing.
A unified international response was reflected in the General Assembly resolution adopted March 2 by 141 nations, which calls for an end to the invasion and cites violations of international humanitarian and human rights law. Clearly the General Assembly recognized the frozen nature of the Security Council and, looking back to the Uniting for Peace resolution, asserted the General Assembly’s role in responding to aggression. Since then, conditions have become even more dire. Last week, the UN humanitarian agency heads stated, “Today, we call for an immediate cessation of all attacks on health care in Ukraine. These horrific attacks are killing and causing serious injuries to patients and health workers, destroying vital health infrastructure, and forcing thousands to forgo accessing health services despite catastrophic needs.” They called the attacks on hospitals “unconscionable cruelty,” and international law experts have described them as in clear violation of international humanitarian law.
Until now, nations have declined to transfer Polish MiG fighter jets to the Ukrainians or establish a no-fly zone over either Ukraine or the humanitarian corridors used by civilians to flee the carnage.
The rationale to deny the request for a no-fly zone may have theoretical merit in that no one wants to escalate the conflict, as President Biden and others, including NATO leaders, have argued. However, at this stage, with 3.2 million Ukrainians already in exile and 6.5 million displaced, according to UNHCR, and others desperate to escape the Russian onslaught, the escalation is all on the Russian side. If a no-fly zone cannot be justified because it requires direct enforcement by NATO, holding back fighter jets to Ukraine cannot be similarly justified.
The UN Charter states in Article 2 (4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The General Assembly resolution “deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter” and “demands that the Russian Federation immediately cease its use of force against Ukraine.”
The UN Charter in Article 51 also states: “Nothing . . . shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” A founding member of the United Nations, Ukraine retained its seat after 92 percent of the population voted for independence from the Soviet Union in 1991 and has served twice since as a non-permanent member of the Security Council.
Whatever Russian president Putin alleges, Ukraine is an independent nation-state with the right to defend itself against aggression, to protect its citizens, and to maintain the integrity of its borders.
Supporting a member nation of the United Nations under attack through providing military aid is a legitimate action by any UN member, whether or not they are a member of NATO.
A second justification relates directly to Russia’s violation of the Geneva Conventions of 1949 and Protocol I in its conduct of the invasion. The last sentences of the Responsibility to Protect are rarely cited, but highly relevant: “We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. . . . We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.” The purpose of those sentences in Responsibility to Protect was to enable the General Assembly to have a clear role in helping nations prevent those crimes against humanity, and to help bring them to an end.
Russia has violated international human rights and international humanitarian norms, and the General Assembly in no uncertain terms has condemned its gross violations of the UN Charter, human rights, and humanitarian law. In response, the United States should take further action. Beyond the economic sanctions and significant anti-air and anti-tank weapons already provided, President Biden should facilitate the transfer of those fighter jets to boost Ukraine’s capacity, as the spirit and language of Responsibility to Protect argue, and to protect its population from Russia’s war crimes. Receiving those jets will also give Ukraine more leverage in the negotiations that hopefully will not only bring a ceasefire but halt the invasion permanently.
Mark L. Schneider is a senior adviser (non-resident) with the Americas Program and the Human Rights Initiative at the Center for Strategic and International Studies in Washington, D.C. General (ret.) Wesley K. Clark is a former supreme allied commander who led NATO to success in Kosovo. He is currently a fellow at the UCLA Burkle Center.
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