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A rebel checkpoint Saturday as Ukrainian troops pressed their assault on separatists in the east. (Credit: Sergey Ponomarev/The New York Times)

Ukraine and International Law: The Double Standard at the New York Times Editorial Page

Howard Friel

“A dirty dog will not have justice by the court.”

I did not invent these words, although I wish I had. The honor belongs to the British satirist and legal commentator, A.P. Herbert, as spoken by his fictional Judge Mildew. The idea, in general, is that one shouldn’t accuse another of a crime committed by oneself as a means of exoneration – and get away with it.

Having now read every New York Times editorial on Ukraine from November 1 onward, I wish that Arthur Sulzberger Jr. had hired the good judge – who would have demanded no salary at all – to moderate the sudden enthusiasm for international law among the Times’ editorial writers.   

"Given its current enthusiasm for international law, one should expect the Times’ editorial page to soon call for a referral to the ICJ concerning the legality of the Obama administration’s extrajudicial killing of individuals overseas with missiles fired remotely by aerial drones."

This is because the Times’ editorial page has never made compliance with international law a standard of conduct in its editorials on the serial invasions and interventions of the United States. Here I’m thinking of the list of American interventions from the frontispiece of The Political Economy of Human Rights, Volume I by Noam Chomsky and Edward S. Herman (1978), in addition to William Blum’s “Brief History of U.S. Interventions, 1945 to the Present.” Despite its neglect in applying international law to the United States, the editorial page is now applying it with a vengeance to Russia.    

I have mentioned previously that from September 2001 to March 2003, a period in which the Bush administration repeatedly threatened to invade Iraq, the New York Times never mentioned the words “UN Charter” or “international law” in any of its seventy editorials on Iraq. Keep in mind that Iraq is several thousand miles from the United States and had nothing to do with 9/11, that the Bush administration killed and maimed over a million Iraqis while it destroyed Iraq, and that President Obama took almost as long to “withdraw” from Iraq as it took for the U.S. to fight World War II, all at a total cost of least $3 trillion. This was all greatly assisted by the editorialists, op-ed columnists, foreign-desk editors, and foreign correspondents of the New York Times. (See The Record of the Paper, 1-161.)  

Today, the Times’ editorial page is shaking its fist at Russia about the “invasion” of Crimea, during which no civilians in Crimea were killed and nothing destroyed. Soon afterwards, a large majority in Crimea voted to be incorporated into Russia. These events were triggered by the U.S.-supported overthrow of Ukraine’s elected president, which instantly rendered the government of Ukraine unelected and illegitimate, a fact that the editorial page has ignored.

In my view, the question of the legal status of Russia’s annexation of Crimea should be referred to the International Court of Justice (ICJ) – the judicial arm of the United Nations with jurisdiction over UN member states – for an authoritative opinion. The mandate in any such case should include a factual assessment and legal opinion of the interventionist involvement of the United States in the U.S.-supported overthrow of the elected president of Ukraine.

And given its current enthusiasm for international law, one should expect the Times’ editorial page to soon call for a referral to the ICJ concerning the legality of the Obama administration’s extrajudicial killing of individuals overseas with missiles fired remotely by aerial drones.   

This expectation comes from the seemingly principled invocation of international law by the editorial page as applied to Russia. For example, in a March 11 editorial called “Penalties for Mr. Putin,” the Times asserted: “The occupation of Crimea is illegal under international law, and it is time for Europe to join the United States in threatening the sort of costly sanctions that will leave Mr. Putin no doubt that they will not tolerate violations of Ukrainian territorial integrity.

In a March 19 editorial, “Russia and the Group of 8,” the Times’ editorial page asserted: “Let’s hope that the G-8-minus-1 meeting scheduled for next week can do a better job of projecting a unified front against Mr. Putin’s arrogance and contempt for international law.”

On March 27, in an editorial called, “Welcome Help for Ukraine,” the Times’ editors wrote: “[A]s Mr. Obama made clear on Wednesday, the United States and NATO have an obligation to ensure Mr. Putin pays a price for flouting international law.”

On April 7, in “A Familiar Script in Ukraine,” the Times’ editorial page asserted: “The annexation of Crimea was a blatant transgression of international law.”  

On April 29, in “Not Getting Through To Mr. Putin,” a Times’ editorial said: “But there will be other costs if Europe and America do not join in a unified response. Among other things, a weak and fragmented response would call into question a longstanding trans-Atlantic commitment to protect international law and democratic values against the kind of aggression Mr. Putin is engaging in.” The special bonus here is that the Times editorial page asserted the “long-standing trans-Atlantic commitment to protect … democratic values” two months after the trans-Atlantic countries led by the United States supported the coup overthrowing the democratically elected president of Ukraine.

On May 3, in “President Obama and the World,” a Times editorial said: “A lot is riding on Mr. Obama’s ability to lead the trans-Atlantic response, which includes strengthening Ukraine politically and economically, reasserting international law, and forcing Russia to reconsider its campaign to turn Ukraine into a failed, partitioned state.”  

On March 27, the editorial page published an op-ed piece, “A Weak E.U. Can’t Stop Putin,” by two professors from Cambridge University, who wrote: “Russia must be forced to see that there are consequences for riding roughshod over international law.”   

It seems that the Times took its cue to apply international law to Russia from President Obama. On March 1, a little more than a week after the coup in Kiev, the Times reported in “Ukraine Mobilizes Reserve Troops, Threatening War”: “Mr. Obama accused Russia on Saturday of a ‘breach of international law’ and condemned the country’s military intervention, calling it a ‘clear violation’ of Ukrainian sovereignty.

Overall the concern here is what it means for the New York Times to accuse Russia of violating international law, given the far more bloody and more numerous U.S. violations of international law over the years and the fact that the Times has yet to apply international law to the United States.  

This double-standard – aggressively exhibited by every other mainstream news organization in the United States – serves as the predicate for the repeated calls to “punish Putin.” It is the kind of base hypocrisy that can ignite a major war.  

In short, the Times editorial page is reprising its role as war instigator, not by ignoring international law as it did when the Bush administration threatened to invade Iraq, but by hypocritically citing Russia as the world’s transgressor of international law.

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