Alfred de Zayas: Sabo­tage of Nord-Stream is brea­ching world peace

UN Secu­rity Council Fails the World

 
By Alfred de Zayas | After the thorough, coherent and credible inves­ti­ga­tion conducted by Seymour Hersh[1] of the sabo­tage of Nord-Stream, any tribunal under the rule of law would commence an inves­ti­ga­tion of the terro­ristic bombing. Indeed, in the United States any grand jury would find that the evidence already in the public domain suffices to indict the suspect for the crime and open formal criminal procee­dings, a fortiori in the absence of any credible evidence to the contrary.

The inves­ti­ga­tions conducted by Seymour Hersh consti­tute a solid basis to justify the estab­lish­ment of an inde­pen­dent inter­na­tional inves­ti­ga­tion.  Such an inves­ti­ga­tion would require the consent of those count­ries whose terri­to­rial sove­reignty extends over the area where the explo­sions took place, namely Sweden and Denmark.

Sweden’s obli­ga­tions vis-à-vis the world

Sweden has already carried out an inves­ti­ga­tion and should have volun­t­a­rily shared the results with the United Nations and all inte­rested parties.  Sweden’s silence speaks volumes, because if the Swedish inves­ti­ga­tion had estab­lished Russian or Belo­rus­sian respon­si­bi­lity, there is no doubt that Sweden would have made it public.  Sweden’s silence can only be inter­preted as a cover-up, because the feared conse­quences of reve­aling US viola­tions of Swedish and Danish sove­reignty, a breach of the peace, a colossal viola­tion of inter­na­tional law and the laws of war.  Such a reve­la­tion could have exploded NATO in the same manner as the US exploded the pipelines.

If Sweden conti­nues to stone­wall and refuses to share the results of the inves­ti­ga­tion with Germany, Russia and the world, the inter­na­tional commu­nity must demand it pursuant to article 19 of the Inter­na­tional Covenant on Civil and Poli­tical Rights, which stipu­lates that all persons have the right to access infor­ma­tion, the right to truth,  the right to seek and impart infor­ma­tion of all kinds, espe­ci­ally when the infor­ma­tion being with­held concerns criminal acts such as terrorism.

It was the respon­si­bi­lity of the Secu­rity Council to have demanded from Sweden all the infor­ma­tion in its posses­sion, and if the infor­ma­tion were found to be incon­clu­sive, the Secu­rity Council should have motu proprio estab­lished an Inter­na­tional Commis­sion of Inquiry (COI), because such a terro­rist attack on a civi­lian infra­struc­ture consti­tuted a breach of inter­na­tional peace and secu­rity for purposes of article 39 of the UN Charter. The world has a right to know exactly what happened.

Only 3 out of 10+5 UN-Secu­rity Council members voted for UN-Inquiry-Commis­si­onzur NS-Sabo­tage; Source: UN – Here
List of UN voting results of 10+5 member­states regar­ding SC/15243: See Appendix

The Secu­rity Council fails the world

On 27 March 2023 the United States succeeded at the Secu­rity Council in blocking a reso­lu­tion to estab­lish such a COI.  All count­ries who failed to vote for the reso­lu­tion have effec­tively betrayed the trust conferred upon them and failed in their duties to the world as members of the Secu­rity Council.

Now it is up to the General Assembly to demand Sweden to come forward with all the evidence available.  Perhaps the Swedish Supreme Court could order the Swedish govern­ment to produce the evidence and not to hide behind false argu­ments of “national secu­rity”.  The Swedish Supreme Court should simi­larly ensure that none of the evidence is destroyed or tampered with.

State terro­rism versus Nord-Stream | Quelle: Swedish Coast Guard – Screenshot

Joe Biden’s threats are tanta­mount to a smoking gun

It was certainly care­less of Joe Biden to have threa­tened that if Russia invaded Ukraine, Nord-Stream would be no more.  This was repeated by offi­cials of the State Depart­ment.  Moreover, the US had already done ever­y­thing in its power to frus­trate the comple­tion of Nord-Stream II, as evidenced by the illegal unila­teral coer­cive measures imposed on busi­nesses throug­hout the world to inti­mi­date enter­prises such the Dutch-Swiss Allseas and a Swiss insu­rance company with colossal penal­ties.  Such actions were illegal, consti­tuted inter­fe­rence in the internal affairs of states and illegal extra-terri­to­rial appli­ca­tion of US laws, but the world somehow tole­rated them.  Still they contri­bute to the growing legal dossier against the US.  Notwi­th­stan­ding the illegal UCMs, Nord-Stream II was completed and ready to operate since 2021.  Then came the massive pres­sures brought by the US on Germany not to certify it.

Presump­tion of innocence

Someone in the US falsely invoked the prin­ciple “in dubio pro reo” – in doubt for the accused.  This prin­ciple only applies with regard to persons, but not with regard to govern­ments, who usually hold and control most of the evidence.  No country can expect to be cleared of suspi­cions of having committed an offence simply by stone­wal­ling.  The Roman adage “if you did it, deny it” (si fecisti, nega) does not erase the circum­s­tances that clearly point at a given country.  The first ques­tion that ever­yone has to ask is who bene­fits from the act in ques­tion.  Who bene­fits from blowing up Nord-Stream?  In his defence plai­doyer Pro Milone,  Cicero already posed the crucial ques­tion “Cui bono?”.  Indeed, every court has to come to grips with this ques­tion and must give a satis­fac­tory answer.  There are many count­ries that commit crimes and then play inno­cent. True enough, Israel keeps silent about its terro­ristic attacks against Syria and Iran, about its targeted assas­si­na­tions.  But ever­yone knows “Who done it”.

Burden of proof

Circum­stan­tial evidence is used by all dome­stic and inter­na­tional courts, espe­ci­ally when the “corpus delicti” is not enti­rely acces­sible, e.g. when the evidence has been destroyed by the perpe­tra­tors, when govern­ments deli­bera­tely tamper with the infor­ma­tion and erase digital records.  The UN Human Rights Committee has ample expe­ri­ence in judging cases where govern­ments stone­wall.  Already in 1982, the Committee reversed the burden of proof in the case of Bleier v. Uruguay[2].  In that case the Uruguayan mili­tary junta denied know­ledge about the where­a­bouts of Eduardo Bleier, who had been arrested by Uruguayan police, held in a prison in Monte­video, where his wife would bring him clothes and food. One day Bleier “disap­peared”.  By a note of 14 August 1981 to the Human Rights Committee the Uruguayan govern­ment contended that: “the Committee displays not only an igno­rance of legal rules rela­ting to presump­tion of guilt, but a lack of ethics in carrying out the tasks entrusted to it, since it so rashly arrived at the serious conclu­sion that the Uruguayan autho­ri­ties had put Eduardo Bleier to death.”  The Committee responded that: “in accordance with its mandate under article 5 (1) of the Optional Protocol, the Committee has considered the commu­ni­ca­tion in the light of the infor­ma­tion made available to it by the authors of the commu­ni­ca­tion and by the State party concerned. In this connec­tion the Committee has adhered strictly to the prin­ciple audiatur et altera pars and has given the State party every oppor­tu­nity to furnish infor­ma­tion to refute the evidence presented by the authors.”  This is the constant juris­pru­dence of the Human Rights Committee since 1982. The burden of proof is reversed when the State hold the infor­ma­tion and stonewalls.

Rational reasons to deny responsibility

US intel­li­gence services know exactly what happened, who gave the orders, who conducted the terro­rist attack.  Of course, the US does not want to admit to a major viola­tion of inter­na­tional law consti­tu­ting a breach of inter­na­tional peace and secu­rity for purposes of article 39 of the UN Charter.  The US hides behind silence and secrecy.  Indeed, secrecy is a faci­li­tator of crime.  Nega­tion is another enabler of crimi­na­lity.  The US and its propa­ganda machine have for decades propa­gated the myth that the US is a “demo­cracy” and that it is a country under the “rule of law”. Yet, the US lies to the American people, as it did with regard to the inva­sion of Cuba in 1961, the Vietnam War, the Yugo­slav, Afgha­ni­stan, Iraq, Libya and Syrian wars.  Although the US has been proven to be a serial liar, the corporate/mainstream media does what it can to create a posi­tive image of the United States as the “leader” of the “free world”, the “excep­tional” or “indis­pensable country”, as the late Secre­tary of State Made­leine Albright used to call her adopted country.

Obli­ga­tions under the UN Charter

The US has no legal justi­fi­ca­tion to refuse to coope­rate in an inter­na­tional inves­ti­ga­tion.  The US is obliged under the UN Charter to coope­rate in buil­ding a just world order.  Already the preamble of the UN Charter obli­gates the United States “to estab­lish condi­tions under which justice and respect for the obli­ga­tions arising from trea­ties and other sources of inter­na­tional law can be main­tained”.  Among the trea­ties[3] that the United States must promote and respect are the Conven­tion for the Suppres­sion of Unlawful acts against the Safety of Mari­time Navi­ga­tion, Rome 1988, which obliges parties to either extra­dite or prose­cute alleged offen­ders who have committed unlawful acts against ships, such as placing bombs on board ships. This was supple­mented by the Protocol for the suppres­sion of unlawful acts against the safety of fixed plat­forms, which extends the requi­re­ments to plat­forms engaged in the explo­ita­tion of oil and gas. The latter protocol can be applied per analo­giam.  Most importantly we must recall the Inter­na­tional Conven­tion for the suppres­sion of terro­rist bombings, New York 1997, obli­ga­ting each State to prose­cute or extra­dite such persons.

The US is not the only country that engages in terro­rist acti­vi­ties.  Israel has done it for decades in total impu­nity.  France tried to do it in the Rainbow Warrior case[4], where the Green­peace ship Rainbow Warrior was sunk by French govern­ment divers on 10 July 1985.  Although some persons were prose­cuted, no one in high office was ever disturbed, and France suffered little damage to its posi­tive inter­na­tional image.

Mecha­nisms for dealing with the Nord-Stream-Case

As the prin­cipal inter­na­tional organ dealing with inter­na­tional peace and secu­rity, the UN Secu­rity Council has the obli­ga­tion to condemn terro­rism, as it did imme­dia­tely after the 11 September 2001 attack in New York City and Washington D.C., when it adopted reso­lu­tion 1368 (2001) condem­ning in the stron­gest terms the terro­rist attack against the United States and calling on all states to work toge­ther urgently to bring the perpe­tra­tors to justice.

Not unty­pical for the United Nations, and in parti­cular the Secu­rity Council, the reso­lu­tion on Nord-Stream was rejected.  Here again we witness the appli­ca­tion of double-stan­dards.  The silence of the UN with regard to the terro­rist sabo­tage of Nord-Stream is as deafe­ning as its silence with regard to the 40 US bio-labs in Ukraine.  Here again we have to do with massive pres­sures by the US and NATO upon the Secu­rity Council, and by a tradi­tion of prima­rily serving the inte­rests of the West and not the inte­rests of huma­nity at large.

This does not mean that there will not be any inde­pen­dent inter­na­tional inves­ti­ga­tion under the auspices of the United Nations.  Fact-finding Missions or Commis­sions of Inquiry could be estab­lished by various UN agencies.

It is now up to the General Assembly to do so.  It should be possible to obtain a majo­rity at the General Assembly. Moreover, the General Assembly should go beyond the mere condem­na­tion of the Nord-Stream sabo­tage.  It should adopt a reso­lu­tion under article 96 of the UN Charter reques­ting an advi­sory opinion from the Inter­na­tional Court of Justice on the ques­tion of the legal conse­quences of the blowing up of the pipe­lines, in parti­cular the civil and penal liabi­li­ties involved.

Bearing in mind that inter­na­tional terro­rism is within the remit of the UN Vienna Office on Drugs and Crime[5], its terro­rism preven­tion Branch must be seized of the matter and conduct its own inves­ti­ga­tion as soon as possible.

Yet another UN agency that has compe­tence is the United Nations Envi­ron­mental Programme[6]with head­quar­ters in Nairobi.  The UNEP Euro­pean Office should inves­ti­gate the adverse ecolo­gical impacts of the blasts to fishe­ries in the Baltic Sea[7].

I would also propose the filing of an inter-State complaint under article 41 of the Inter­na­tional Covenant on Civil and Poli­tical Rights.  All count­ries that have NOT put a decla­ra­tion rest­ric­ting the Committee’s juris­dic­tion under article 41 could present such a complaint against the US (which never intro­duced a reser­va­tion about the appli­ca­tion of article 41, because it felt that no state would ”dare” acti­vate this proce­dure).  I see issues arising under articles 1, 2, 6, 19, 26.

From the Human Rights perspec­tive, surely  the UN Human Rights Council should adopt a reso­lu­tion condem­ning the Nord-Stream sabo­tage and could estab­lish a Fact-Finding Mission to inves­ti­gate the adverse human rights impacts in the region and the world, as indeed, an attack on energy supplies has wide­spread conse­quences, espe­ci­ally for the enjoy­ment of economic and social rights, and for the achie­ve­ment of the Sustainable Deve­lo­p­ment Goals.

The Special Proce­dures of the Human Rights Council have various avenues to further inves­ti­gate the blasts.  Surely it is within the remit of three Rappor­teurs – the Rappor­teur on Terro­rism, the Rappor­teur on the Right to Truth, Justice and Repa­ra­tion, and the Rappor­teur on Freedom of Opinion and Expression.

There are also viola­tions of the United Nations Conven­tion on the Law of the Sea.  And even if the US never rati­fied the UN Conven­tion on the Law of the Seas, nothing stops the UNCLOS Secre­ta­riat from estab­li­shing a working group to study the impli­ca­tions of the sabo­tage of undersea pipelines.

Whistle-blowers

What we most need today is Whistle-blowers in the United States, Norway, Sweden and Germany.  They know who done it. We need more human rights defen­ders like Julian Assange and Edward Snowden, who have shown us what mons­trous crimes have been committed in our name.  If we aspire to call ourselves “demo­crats”, we must first and fore­most defend the right to know, the right to truth.  We must demand trans­pa­rency and accoun­ta­bi­lity and denounce secrecy as the mother of national and inter­na­tional crimi­na­lity.  The credi­bi­lity of the United Nations – and more gene­rally of inter­na­tional law – is at stake.

Notes

[1] seymourhersh.substack.com/p/how-america-took-out-the-nord-stream
[2] www.worldcourts.com/hrc/eng/decisions/1982.0″3.29_Bleier_Lewenhoff_v_Uruguay.htm. See Jakob Moller/Alfred de Zayas, United Nations Human Rights Committee Caselaw, N. P. Engel 2009, pp. 148 et seq.
[3] www.ohchr.org/en/press-releases/2009/10/united-nations-treaties-against-international-terrorism
[4] www.greenpeace.org/international/explore/ships/rainbow-warrior/
[5] www.unodc.org/unodc/en/terrorism/
[6] www.unep.org/
[7] www.unep.org/regions/europe

Alfred de Zayas is a professor of law at the Geneva School of Diplo­macy and served as a UN Inde­pen­dent Expert on Inter­na­tional Order 2012–18. He is the author of ten books inclu­ding “Buil­ding a Just World Order” Clarity Press, 2021. 

Note from the Editor: Appendix with details of UN-draft reso­lu­tion for an UN-Inquiry-Commis­sion  to inves­ti­gate Sabo­tage of Nord Stream Pipeline:

On 27.3.2023 the UN-Secu­rity Council rejected a draft reso­lu­tion for estab­li­shing an Inter­na­tional Commis­sion of Inquiry (COI) to Inves­ti­gate Sabo­tage of Nord-Stream-Pipe­line: Here

The follo­wing count­ries voted for the draft reso­lu­tion and Inter­na­tional Inquiry Commis­sion – COI:

China, Brazil and Russian Federation

The follo­wing count­ries abstained:

France, UK, USA, Albania, Ecuador, Gabon, Ghana, Japan, Malta, Mozam­bique, Switz­er­land & United Arab Emirates