The Epistemology Trap

International Court of Justice building, The Hague. Photo: ICJ>

It seems that we in the collective West find ourselves in the midst of an “epistemology trap”, caught in our own indoctrination, propaganda, and narcissism, incapable to think outside the box, bereft of any sense of self-criticism.

Admittedly, we are skillful practitioners when it comes to thinking inside the box, echoing narratives, and repeating slogans, but sometimes it is refreshing to open our eyes to wider visions, and open our ears to different sounds.

While patriotism is a good thing and we have a good right to be proud of the achievements of our ancestors and our beautiful philosophical, scientific, technological, musical, artistic, architectonic heritage, we should avoid the pitfalls of solipsism and chauvinism. Indeed, we are not alone in this world. We should learn to appreciate the achievements of other cultures and civilizations. We should celebrate the myriad beauties of Latin American, African, Asian, Pacific cultures, not forgetting the common heritage of mankind, including Russian and Chinese contributions.

UNESCO’s Constitution recognizes in its preamble: “that since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed; that ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war.”

Article I stipulates “1. The purpose of the Organization is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.”[1]

It would be a great contribution to world peace if our leaders came down from their high horses and dealt with other cultures and peoples at eye level. In this connection it bears recalling Article 20 of the International Covenant on Civil and Political Rights, which stipulates: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”[2]

Freedom of opinion and expression, academic freedom, even freedom of conviction and belief are in grave danger when governments adopt chauvinistic legislation that demonizes other nations and cultures and pretends to divide the world into “democracies” and “autocracies”, into the “good guys” and the “bad guys”. This kind of epistemological Manichaeism encompasses what we call “exceptionalism”, with its brazen double standards. The US sets the rules, the so-called “rules-based international order”, which it applies arbitrarily, notwithstanding the existing order established in the United Nations Charter.

This epistemological chaos is aggravated when criminal legislation is adopted that criminalizes dissent, even in social media, even in private exchanges. Over the past thirty years we have witnessed a steady exacerbation of Russophobic and Sinophobic tendencies that have been instrumentalized by governments to fan the flames of hatred and increase the cacophony of the drums of war. The logic of fanaticism has its own dynamic, as hatred feeds on hatred.

Fear-mongering and hate-mongering has been used to justify provocations and ultimately the use of force, both militarily and in the form of unilateral coercive measures UCMs, wrongly referred to as “sanctions”. Here again we find ourselves caught in the web of our own propaganda and ready-made prejudices. We put labels on our perceived rivals, and call them undemocratic, dictators, tyrants, murderers. We misuse the term “sanctions”, because we want to convey the impression that we possess the moral or legal authority to punish other States, individuals, and enterprises. We behave as prosecutors, judges and juries.

According to international law, only the Security Council possesses the authority to impose sanctions. Everything else entails the illegal “use of force”, specifically prohibited in article 2 (4) of the UN Charter. Without a doubt, UCMs are incompatible with the United Nations Charter, because they violate state sovereignty, the right of self-determination of peoples, the prohibition of interference in the internal affairs of other states, the prohibition of extra-territorial application of domestic legislation, the customary norms of freedom of commerce and navigation.

Thirty-one resolutions of the General Assembly have condemned the US embargo against Cuba. The last resolution was adopted on 2 November 2023[3]. Notwithstanding the clarity of the resolutions or their near universality (the only negative votes came from the US and Israel), the US government persists on maintaining and exacerbating the economic, financial and trade embargo against Cuba, in the vain expectation of inducing “regime change”. Sixty-three years of draconic sanctions have not impacted the Cuban government – it has only impacted the Cuban people.

The latest GA resolution on the adverse human rights impacts of UCMs was adopted on 19 December 2023. Resolution 78/202 urged States to cease implementing unilateral measures with all their extraterritorial effects, condemned the inclusion of Member States in unilateral lists under false pretexts, including false allegations of terrorism sponsorship, and urged the Human Rights Council to pursue its documentation and evaluation of their negative impact[4].

The latest resolution of the UN Human Rights Council was adopted on 11 October 2023 “Stressing that unilateral coercive measures and legislation are contrary to international law, international humanitarian law, the Charter and the norms and principles governing peaceful relations among States … Recalling also article 1, paragraph 2, common to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which provides, inter alia, that in no case may a people be deprived of its own means of subsistence, including but not limited to food and medicines, Deeply disturbed by the negative impact of unilateral coercive measures on the right to life, the rights to health and medical care, the right to freedom from hunger, the right to an adequate standard of living, food, education, work and housing and the right to development, Alarmed by the disproportionate and indiscriminate human costs of unilateral sanctions and their negative effects on the civilian population, in particular women and children, of targeted States…”[5]

Biennial panels are held in the Council concerning the necessity to lift all UCMs[6]. In 2012 the then High Commissioner for Human Rights Navi Pillay submitted a report outlining the multiple violations of human rights generated by UCMs and demanding that they be phased out.[7]

UCMs are imposed by the “collective West” against geopolitical rivals. There is no legal basis for these UCMs, which do not qualify as “retorsion” or “countermeasures” within the meaning of the International Law Commission’s draft Code on State responsibility [8]. Their purpose is not advancing human rights, but asserting the West’s hegemony, its neo-colonialism, its animus dominandi.

The “epistemological trap” in which the collective West and the Western media finds itself, systematically misuses rigged terms such as “sanctions” and “compliance” with a view to implying that these UCMs are legitimate and that should be obeyed. According to this rationale, these measures can be “enforced” by adopting criminal statutes to punish those who fail to “comply” with the UCMs or who try to circumvent them. Even some United Nations reports do not seem to escape from the false narrative that unilateral coercive measures are somehow designed to achieve a legitimate goal, to try to “persuade” targeted governments to change their policies. This is toxic positivism, surrender to political propaganda and Orwellian euphemisms.

Why should States, businesses and individuals submit to or “comply” with UCMs? Is it at all a matter of “compliance”? Is it not more like surrendering at the barrel of a gun, bending under force, yielding to blackmail draped in the garments of “law”?

It is instructive to remember the 1947 US Post-Nuremberg Tribunal at Nuremberg — the Justices Trial[9]. The US prosecutor was Professor Telford Taylor, whom I had the opportunity to interview on several occasions. In US v. Josef Altstoetter et al, the defense argued the “goodwill” of the judges and the fact that they had to “comply” with Nazi legislation. The trial revealed how the judges dutifully applied Nazi laws that were patently contra legem. No one should “comply” or “over-comply” with legislation that kills. This we already know from Sophocles Antigone[10]. The use of the term compliance in this context is very problematic. We do not speak about “compliance” with laws protecting slavery and the slave trade, laws like the “Fugitive slave acts”[11], South African Apartheidlaws, compliance with Nazi laws. Indeed, there are unjust laws today, and among those laws are the laws on UCMs and the laws prosecuting those who refuse to submit to them.

Unilateral coercive measures are not “sanctions” but constitute illegal use of force for purposes of Article 2, paragraph 4, that prohibits the “use of force” without Security Council approval. In other words, any “use of force” contrary to the object and purpose of the UN Charter is illegal. Art. 2(4) does not prohibit exclusively the use of “military” force — when the Charter wants to prohibit military force, it speaks of “armed force” (preamble, art. 41), when it speaks of self-defense, it talks about “armed attack” (art. 51).

It is clear that unilateral coercive measures constitute massive use of force intended in most cases to generate chaos, a humanitarian crisis, and ultimately regime change. Moreover UCMs constitute a threat to international peace and security for purposes of Article 39 of the Charter, because they create a situation that may lead to armed conflict.

There are so many examples of the “epistemological trap” that we would need a whole book to analyze them. Just think of our use of the term “democracy”. Are there any genuinely “democratic” or quasi-democratic countries in the world? Perhaps Switzerland, which is recognized as a semi-democratic system. But most Western “democracies” are so-called “representative democracies”, where the “representatives” do not represent the electorate, but rather the “elites”, the oligarchs, the military-industrial-financial-digital-media complex.

How to give recourse and remedy to the victims?

Bearing in mind that the collective West persists in applying UCMs to about a third of the population of the planet, and in the light of the fact that they have done it with impunity, I would propose:

States should hold businesses registered and/or operating within their jurisdiction accountable for submitting to illegal UCMs and thereby violating the sovereignty of the State concerned, which possesses exclusive jurisdiction within its territory. States shall require businesses registered and/or operating in their territory to file reports concerning UCMs and any pressures brought upon them by foreign countries. Individuals and businesses shall be held accountable for the implementation of UCMs that result in harm within and outside the territory of the State.

States should exercise diplomatic protection on behalf of individuals and businesses affected by UCMs.

Persons in distress legislation: the laws of many countries impose a civic obligation to help persons in grave danger to life and limb. Such grave danger can be the result of UCMs. These laws are sometimes referred to as good Samaritan or duty of rescue laws.[12]

Impact assessment: Every country has an obligation to assess the impacts of UCMs. Countries should quantify the damage caused for purposes of demanding compensation in competent international tribunals.

UCM Observatory: An international observatory to document and quantify the impacts of UCMs should be established under the UN Human Rights Council and serviced by OHCHR, which shall keep a database on adverse impacts of UCMs and establish a “UCM Watch” monitoring mechanism.

UCM Tribunal: An international tribunal to investigate and prosecute the impacts of UCMs should be established. In the absence of an international tribunal, peoples tribunals should be established in the tradition of the Bertrand Russell Vietnam Tribunals and the Lelio Basso Foundation[13].

International Court of Justice: States should urge the General Assembly to refer the legal questions associated with UCMs to the ICJ for an advisory opinion on their illegality and the level of compensation to be paid to the victims of UCMs. A majority vote of the General Assembly under Article 96 of the Charter suffices.

International Court of Justice: Pursuant to Article 9 of the 1948 Genocide Convention, any state party to the Genocide Convention can refer matters directly to the ICJ. The deliberate creation of conditions that in effect will destroy in whole or in part a group is one of the crimes to be prevented by the Convention. UCMs demonstrably result in humanitarian crises and death. UCMs kill[14]. It is not possible to submit a case against the US under Article 9, because of US did submit a reservation against Article 9 when ratifying the Convention in 1992. But it is possible to submit cases against Canada, UK, France, Germany, etc. By way of comparison, it is worth mentioning that Nicaragua has just submitted a case under Article 9 Genocide Convention in connection with Germany’s complicity in the ongoing genocide committed by Israel and Gaza[15]. Mutatis mutandis an article 9 can be submitted to the ICJ to test whether some UCMs can plausibly lead to a situation of genocide that must be prevented under the precedent of Bosnia v. Serbia and the precautionary principle[16].

International Criminal Court: The International Criminal Court should investigate motu proprio whether the impacts of UCMs reach the threshold of “crimes against humanity” for purposes of article 7 of the Rome Statute[17].

Inter-state complaints procedures of several UN treaty bodies can be engaged. For instance, Article 41 of the International Covenant on Civil and Political Rights grants jurisdiction to the Human Rights Committee to examine inter-state complaints concerning grave violations of human rights, including the right to life. Since the US and EU countries did NOT make reservations to this article, the competence of the Human Rights Committee is prima facie established.

But if we want international courts and tribunals, UN treaty bodies and other review mechanisms to function properly in the future, we must ensure that all parties escape from the epistemological trap and that international norms are applied uniformly and not selectively.

Notes.

[1] https://www.refworld.org/legal/constinstr/unesco/1945/en/41638

[2] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

[3] https://news.un.org/en/story/2023/11/1143112

[4] https://www.undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F78%2F202&Language=E&DeviceType=Desktop&LangRequested=False

[5] https://digitallibrary.un.org/record/4025163?v=pdf

[6] https://www.ohchr.org/en/events/2017/panel-discussion-unilateral-coercive-measures-and-human-rights-geneva-14-september-2017

[7] https://www.ohchr.org/en/documents/thematic-reports/ahrc1933-thematic-study-office-united-nations-high-commissioner-human

[8] https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf

[9] https://nuremberg.law.harvard.edu/nmt_3_intro

[10] https://classics.mit.edu/Sophocles/antigone.html

[11] https://www.history.com/topics/black-history/fugitive-slave-acts