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Andriy Guck: No-fly zone is what Ukraine urgently needs to save civilians and cities

March 2, 2022 10:31 PM 4 min read
A woman holds her dog as she takes a photograph of a damaged residential block that was hit by an early morning missile strike on Feb. 25, 2022 in Kyiv, Ukraine. (Photo by Chris McGrath/Getty Images)
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Ukrainian people are dying, and civil infrastructure is destroyed from increasing Russian air-to-ground attacks. And there is no other help from the United Nations member states needed more than closure of airspace from any unapproved military aircraft flying into Ukrainian airspace.

According to the article 42 of the UN Charter, should the Security Council (UNSC) consider that measures not involving the use of armed force would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Russia is one of the five powers with a veto in UNSC, and it is not possible that the resolution on any actions against Russia’s aggression will be upheld.

United States along with other Coalition nations established two no-fly zones in Iraq following the 1991 Gulf War. Halabja chemical attack, an air-to-ground event, as well as citing parts of Chapter 42 within the U.N. Charter served as motivation used by Coalition Forces. Such actions were not supported with Security Council resolution.  The Secretary-General of the United Nations Boutros Boutros-Ghali even called the no-fly zones "illegal". During the Bosnian War In 1992, the United Nations Security Council passed Resolution 781, prohibiting unapproved military aircraft from flying into Bosnian airspace to clear the way for delivery of humanitarian aid. Under Operation Sky Monitor NATO monitored violations of the no-fly zone. In response to 500 documented violations by 1993, including one combat violation the Security Council passed Resolution 816, which prohibited all unauthorized flights and allowed all UN member states to "take all necessary measures...to ensure compliance with [the no-fly zone restrictions]." In 2011 the UNSC imposed a no-fly zone over Libya by the Resolution 1973 to protect civilian populations from airstrikes and missiles. It was a part of the 2011 military intervention in Libya.

Today, on March 2, in an emergency session of the The United Nations general assembly 141 of the 193 member states has voted for a resolution deploring Russia’s invasion of Ukraine. The resolution said the UN “deplores in the strongest terms the aggression by the Russian Federation against Ukraine”. It demanded that “the Russian Federation immediately cease its use of force against Ukraine” and “immediately, completely and unconditionally withdraw all of its military forces”.

International Criminal Court Prosecutor, Karim A.A. Khan QC, on Feb. 25 issued a statement “that pursuant to the declaration lodged on 8 September 2015, accepting jurisdiction of the International Criminal Court, my Office may exercise its jurisdiction over and investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since Feb. 20, 2014 onwards” and “any person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes, may be liable to prosecution before the Court, with full respect for the principle of complementarity”.  On Feb. 28, Karim A.A. Khan QC announced a decision to proceed with opening an investigation into the Situation in Ukraine, as rapidly as possible.

On March 1, the European Court of Human Rights issued an interim measure to indicate to the Government of Russia, to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.

From the legal perspective looks like everything is obvious to the world – Russia is attacking civilians and civilian objects in Ukraine, and this is illegal. But it still happens, and I hear warning sirens almost each hour in Kyiv and in all the territory of my homeland. We see the outrageous crimes against humanity in Kharkiv and other cities. Children are being killed and born underground while Russian bombs and rockets are blown.

But contrary to earlier reports, Ukraine will not be receiving additional fighter jets. Poland, Bulgaria and Slovakia refused to do so despite EU readiness for this move. Reasoning – NATO is not a party to that conflict. But the true reason is that any further supply of weaponry to Ukraine could lead to Russian President Vladimir Putin ordering the use of nuclear weapons.

Veto power in UNSC and nuclear weapons are the true reasons why Russia is still bombing Ukrainian cities and people. But it is a time to understand that Putin’s Russia will never stop knowing that the NATO is not in conflict, UN is not able to take real action, UN members are afraid of Russia. And the irony is that Putin calls NATO as the main enemy and reasoning why Ukraine should be “demilitarized”.

Ukraine fights in the World War III alone in its territory for the whole civilized world. And it is a time to stand with us not only by words, passionate speeches, gestures, resolutions and supplies that are not enough. It’s not a time for a procedural games and fear of a nuclear button. No-fly zone should be implemented in Ukraine without UNSC resolution and other procedural issues. It is just needs to be done immediately by any available means. Russia’s failure to comply with recent General assembly resolution and ECHR interim measures should be enough to justify any immediate real action by the UN members to safeguard Ukrainians from the sky. And we would even be ok with further calling such no-fly-zone as “illegal”. But it would be a reasonable and more than proportional answer to the crimes being committed by Russian forces in Ukraine. Ukrainian army will do the rest.

Is there any state or leader who is not afraid to support Ukraine with sky monitor, fighter jets and air defence enough for us to cope with Russia aggression by ourselves without increasing number of deaths among civilians? Or the world will continue to live in fear?

Andriy Guck is a Ukrainian aviation lawyer and partner at the Ante law firm.

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