Putin's War Russian Genocide - the outtakes II
The Pope is wrong
We’ve closed our draft but we do however have plenty of content written up that won’t get into the book.
I am resting from genocide and Twitter, especially after a string of blue tick accounts decided its okay to spam atrocities onto timelines without sensitivity labelling. Also broke my humerus snowboarding!
So here are some more outtakes as a follow-up to the last week.
European medieval Christianity and its brother, European feudalism, brought the ‘laws of nature’ with the first law being obedience to the sovereign.[1] This later developed into the concept that state was entwined with the monarch, Louis XIV apocryphally stating “L'État, c'est moi”… nowadays the word ‘sovereign’ is often synonym for monarch.
Obedience to the sovereign is an outdated and dangerous concept which is still enshrined in Russian military law as we shall see in next chaoter and one which Putin fervently and loudly believes in. Putin being the sovereign and sovereignty being his will.[2] Professor Makarawiecz was firmly in the camp of the Putin definition of sovereignty, while Lemkin would diverge utterly as we shall see. So would his erstwhile friend and colleague Hersch Lauterpacht.
Russia has created scores of geniuses including in the fields of philosophy but it’s development of rights concepts was somewhat disconnected or even contradictory to that of what we call the West, with the source of human rights being the munificent state and its sovereign, not the fact of being a human.[3] Russia did however play an interesting role in the development of law in war, which I will underline later on.
Turning back to medieval law, rules of chivalry evolved to protect knights, not extending to other classes of soldier.[4] Heralds become lawyers of chivalric law deciding issues of booty, ransom and battlefield conduct between knights. Missile weapons were condemned when used against knights, as an equalizer contrary to the will of God.[5] Parallel to chivalry, there were varying views on the Peace of God proclaimed by clergy protecting first church lands and then peasants, and then other secular persons.[6] General codes of war began to develop with attack on church property, churchmen and rape forbidden by Richard II of England’s “Articles of War”.[7] Crusaders took oaths forbidding attacks on clergy and church property and limiting general looting.
In 1474, a significant ground-breaking trial was held. It was maybe the first example of an international war crime trial which also referenced the, obscene, ‘just following orders’ defence and the issue of ‘command responsibility’.
The brutal soldier and military governor of Breisach, Peter von Hagenbach on the Upper Rhine in current Germany, was strung up for his brutal oppression and rule via mercenaries committing “murder, rape, illegal taxation and wanton confiscation of private property” with him having "trampled underfoot the laws of God and man."[8] [Own emphasis].
His defence, unsuccessful, was, "Is it not known that soldiers owe absolute obedience to their superiors?" and that he did not recognize the authority of a court of 28 judges drawn from Upper Rhine states (basically international despite belonging to the very loosely organized Holy Roman Empire). [9] The results of this case and defence, and the next six centuries, should be noted by Russian soldiers and officers.[10]
In connection with medieval actions against atrocity committing individuals acting between border, it could be argued that the concept of universal jurisdiction ‘as the ability of states to investigate and prosecute conduct abroad which is not linked to the forum state by the nationality of the suspect or of the victim or by harm to the forum state’s own interests’ appears much earlier in history than the 20th century.[11] Brigand hunting by Italian city states across borders, where they had no jurisdiction according to later Westphalian concepts, might have played a role in shaping the Nuremberg trials and the ICC.[12] Universal jurisdiction in general will be a key legal concept in bringing Russians to justice by entities other than Ukraine or a post-regime change Russia.[13]
Heading into the modern period, a favourite of military historians because of his revolutionary influence on warfare particularly regarding artillery and infantry, directly changing the course of the Russian way of war, was Gustavus Adolphus. Adolphus gave us Sweden’s the “Articles and Military Lawes to be Observed in the Warres” of 1621 which forbade rape of women and murder of clergy and teachers outright and burning down towns and villages, unauthorized pillaging and stealing, pillaging and destruction of churches and hospitals in particular unless ordered to. I would like make clear that authorized pillaging of a church was fine.[14] Civilians were not to be abused unless they were resisting...[15] The utter horrors of the Thirty Years War however bear testimony to the difference between theory and practice. Booty was of immense importance to the armies ravaging central Europe.[16] Adolphus is very careful in restricting looting to instances at the command of his officers – a horrible cynical position – his armies were paid in loot.[17] Sorry I’m not a fan of the man who de facto killed the Polish-Lithuanian Commonwealth, dooming it to a slow death.
(via Sabaton…)
While the Polish-Lithuanian Commonwealth was not a formal participant of the Thirty Years War, its territory suffered terribly at the hands of a post-Westphalia Swedish military looking for a role – weakening the Commonwealth massively and preparing the ground for the appearance of another Ukrainian national entity, the Cossack Hetmanate, on former Commonwealth lands, even more formerly Kievan Rus. The Hetmanate would at inception be allied with Muscovy Russia, a state very separate in origin to Kievan Rus. This rebellion would inspire Lemkin’s Sienkiewicz to write With Fire And Sword… the title evokes the appropriate image. The Cossack Hetmanate was duly instantly crushed by the Russian Empire after the Commonwealth was chased out, and Ukraine was then colonized by Russia, replacing previous Polish and Lithuania colonization, with bloodier wars, uprisings, pogroms, a rather Russian anti-semitic invention, and general massacres becoming the norm for the next six centuries.[18] Not to say that the bloodlands had ever been a bucolic area of peace, harmony and religious tolerance. But they were and remained a melting pot of culture, religion and ethnicities though with more brutality under Muscovy rule. A Lemkin could only be have been born in this part of Europe, or perhaps the Balkans, where ‘European’ rules of civilization and war dissolved into the blood-soaked soil.
(Bitwa pod Chocimiem - Franciszek Smuglewicz)
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The Peace of Westphalia ending the Thirty Years War can be treated as a moment, with eyes half-closed, when various disparate states first came together to create international rules.[19] This was an ‘agreement of kings’ creating the historical , much criticized, concept of ‘Westphalian sovereignty’.[20] Any war waged by a Christian price became a just war, regardless of reason, removing a religious and moral obstacle in the form of condemned unjust war, which would often require negotiation with the Papacy before engaging in aggression.[21] A Pope decrying or supporting a war had had serious political implications which translated into military, social and economic results – but the secularization of warfare, ironically as a result of a terrible religious war, changed the jus ad bellum regime. The genocidal Teutonic Knights, who wiped out the Old Prussians, were always supported in their wars against Poland and Lithuania by the papacy – those wars driving the creation of the Commonwealth and in turn creating the borderlands, including Ukraine, we know today.[22]
1/19 “The most brutal crimes are committed by #Chechens. Inhuman cruelty is not a Russian tradition". The leader of the #Vatican Jorge Mario Bergoglio (aka Francis, aka #Pope of Rome) made a statement shocking in its falsity and abomination.
— Deni Dudaev (@0xdeni) 2:49 AM ∙ Nov 29, 2022
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7 May 2023 updated title and cover
[1] Robertson, Crimes, 2.
[2] Roland Paris, “Putin Has Been Redefining 'Sovereignty' in Dangerous Ways,” Washington Post, March 3, 2022.. Conversely Ukraine has no sovereignty, Jacob Lassin and Emil Channel-Justice, “Why Putin Has Such a Hard Time Accepting Ukrainian Sovereignty,” The Conversation, December 21, 2021, https://theconversation.com/why-putin-has-such-a-hard-time-accepting-ukrainian-sovereignty-174029.
[3] Doriane Lambelet, “The Contradiction Between Soviet and American Human Rights Doctrine: Reconciliation Through Perestroika and Pragmatism,” Boston University International Law Journal 7, no. 1 (1989): 61-84.
[4] Green, The Law, 45. Solis, The Law, 5 nuances this. Solis, 6, also mentions that Shakespeare’s play Henry V references already established laws of war when objections are raised to the killing of prisoners at the Battle of Agincourt.
[5] Green, The Law, 46.
[6] Ibid., 47.
[7] Ibid., 49-51.
[8] He perhaps coined the term Landsknecht, for Germanic land, not Swiss mercenaries. For a modern example of scum war criminal mercenaries, see the notorious Wagner company, “What Is Russia's Wagner Group of Mercenaries in Ukraine?,” BBC News (BBC, April 5, 2022), https://www.bbc.com/news/world-60947877.
[9] Edoardo Greppi, “The Evolution of Individual Criminal Responsibility under International Law,” International Review of the Red Cross 81, no. 835 (1999), 533-535. Also Solis, The Birth, 5-6.
[10] While writing this I began to wonder if this was a case, earlier than the 20th century ones, of international tribunals giving justice for harm suffered across borders. Space precludes this analysis here.
[11] Christopher Keith Hall, “Universal Jurisdiction: New Uses for an Old Tool,” in Justice for Crimes Against Humanity, ed. Mark Lattimer and Philippe Sands (Oxford and Portland: Hart Publishing, 2003).
[12] Ibid., 50-51. Hall states that by the eve of World War Two, 26 countries had some form of universal jurisdiction. However war crimes, crimes against humanity and genocide in particular were not covered despite the efforts of lawyers that will be discussed later in this chapter.
[13] RFE/RL, “German Authorities Investigating Several Hundred Possible Russian War Crimes in Ukraine,” RadioFreeEurope/RadioLiberty (German Authorities Investigating Several Hundred Possible Russian War Crimes In Ukraine, June 18, 2022), https://www.rferl.org/a/german-authorities-investigating-war-crimes-russia-ukraine/31904157.html.
[14] William Hibbitts, “Two Russia Soldiers Plead Guilty to War Crimes in Ukraine's Kharkiv Region,” Jurist (- JURIST - News, May 27, 2022), https://www.jurist.org/news/2022/05/two-russia-soldiers-plead-guilty-to-war-crimes-in-ukraines-kharkiv-region/. See the defence raised by the soldiers, subsequently convicted, of ‘just following orders’.
[15] Green, The Law, 49-50. Also William Hagan, “The Yet-Unpaid Debt of King Gustavus Adolphus: The Development of Military Law in Europe During the Cinquecento ,” The Yet-Unpaid Debt of King Gustavus Adolphus, 2001, https://www.pegc.us/_LAW_/Hagan_Military_Law.pdf.
[16] Pascal Daudin, “The Thirty Years' War: The First Modern War?,” Humanitarian Law & Policy Blog (International Committee of the Red Cross, February 16, 2018), https://blogs.icrc.org/law-and-policy/2017/05/23/thirty-years-war-first-modern-war/.
[17] We had a discussion with Philip Blood on motivation for Putin’s soldiers.
[18] For a short history see Barbara Skinner, “Borderlands of Faith: Reconsidering the Origins of a Ukrainian Tragedy,” Slavic Review 64, no. 1 (2005): 88-116, https://doi.org/10.2307/3650068. The character Alfie Solomons surprises Russian aristocrat criminals about his knowledge of Russian with the words, “You people, alright, you hunted my mum with dogs through the snow”, in episode 5 of season 3 of the popular Netflix series, Peaky Blinders. Polish-Lithuanian anti-semitism existed and was objectively strong but was relatively weak compared to other countries, leading to mass immigration to the Commonwealth as Europe became more anti-semitic which turned into tragedy when Russia encountered the Jews. Lemkin’s ancestors could have come from across Europe.
[19] Shaw, International Law, lxxxii, list of treaties starts with Westphalia.
[20] Shaw, Ibid., 21-22 also Robertson, Crimes, 4-5. Green, The Law, 52, also Andreas Osiander, “Sovereignty, International Relations, and the Westphalian Myth,” International Organization 55, no. 2 (2001): 251-287, https://doi.org/10.1162/00208180151140577.
[21] Green, The Law, 47-48.
[22] William L. Urban, The Teutonic Knights: A Military History (Barnsley, South Yorkshire: Frontline Books, an imprint of Pen & Sword, 2018).