Provocation is Not an Innocent Act

E_Law_deZayas_Provocation-is-Not-an-Innocent-Act.pdf (765.8 KiB)

by Alfred de Zayas,* Geneva

(23 May 2023) Provocation is not an innocent act. Under specific circumstances, provocation constitutes a tort or even a crime, especially when it deliberately generates a violent response. There is no binding definition of the term provocation, which is generally understood as intentional or reckless conduct likely to induce another person to a violent response – out of fear, anger or outrage.

In the UK the Public Order Act prohibits “abusive or threatening words or behaviour”, specifically “to provoke the immediate use of unlawful violence by that person or another”. In United States domestic law, provocation is deemed less reprehensible. Emphasis is not placed on the prohibition or criminalization of the provocation, but rather on the right to resist.

There are numerous statutes loosely termed “stand your ground” laws, often supported by the so-called “castle doctrine”, which legitimize push-back and in essence envisage acquittal or at least mitigation of the culpability of the party that felt provoked and responded with violence, sometimes lethal violence. In many states these laws have been abused and resulted in the impunity of the person reacting against a provocation, even when it is a gross over-reaction.

Applied to international relations, the “my home is my castle” approach would appear to justify the use of force as a form of self-defense. This, however, must be qualified, because it is all too easy to manipulate the concept of provocation and to concoct false flag operations in order to justify a military response. This entails a subjective element that can be extremely dangerous, especially in confrontations between nuclear powers.

Since the adoption of the UN Charter on 24 October 1945, there is an absolute prohibition of the use of force, except with approval of the UN Security Council and in the very narrow circumstances stipulated in article 51 UN Charter, which permits self-defense against a pre-existing military aggression, but then only proportional and temporary until the Security Council becomes seized of the matter.

The prohibition of the use of force is enshrined in article 2(4) of the UN Charter and reaffirmed in countless resolutions of the Security Council and General Assembly. Unfortunately, some powerful countries attempt to invent exceptions, e.g. by postulating the non-existent right to “pre-emptive” self-defense. Recent armed conflicts in Yugoslavia, Afghanistan, Iraq, Libya, Syria and Ukraine document a tendency to water down the prohibition of the use of force, although a claim of “pre-emptive” self-defense cannot be sustained under article 51 of the UN Charter.

The mainstream media frequently manages the narrative in an attempt to “legitimize” the use of force, e.g. by the US and NATO countries in Yugoslavia (1999), Afghanistan (since 2001), Iraq (since 2003), or to absolve the provocateur, e.g. to downplay or outright ignore NATO’s continuing provocations of Russia.

It is surrealistic to claim that the use of force in Iraq was legitimate: It was naked aggression and a crime against humanity, no ifs, not buts. Equally surrealistic is to pretend that the invasion of Ukraine was “unprovoked”, out of the blue. Admittedly, Russia’s invasion of Ukraine was illegal and should be condemned, but so too the provocations, which constituted clear violations of article 2(4) UN Charter, which specifically prohibits the threat of the use of force.

As Professors George F. Kennan,¹ John Mearsheimer,2 Richard Falk,³ Jeffrey Sachs,⁴ Noam Chomsky,⁵ Vijay Prashad,⁶ Stephen Kinzer,⁷ Dan Kovalik⁸ and others have argued, NATO expansion was perceived by Russia as a hostile attempt at encirclement, hence an existential threat. This is a measurable, objective criterion.

Every attempt by Russia to defuse NATO’s impending menace by negotiation pursuant to article 2(3) of the UN Charter proved futile – the Minks agreements, the OSCE negotiations, the Normandy Format, the two peace proposals for a European security architecture proposed by Sergei Lavrov in December 2021.

NATO’s continued expansion and militarization at the very borders of Russia, can be termed geopolitical harassment, a violation of the UN Charter’s commitment to cooperation based on mutual respect, the sovereign equality of states and the right of self-determination of all peoples, including the Russian-speaking majority populations of Crimea and the Donbass.

It can be argued that provoking a geopolitical rival is more offensive that reacting aggressively to the provocation, because the provocation is deliberate, frequently a well-calculated geopolitical move, following the playbook of Zbigniew Brzezinski’s «Grand Chessboard»⁹ and the neo-con «Project for a New American Century».¹⁰

By contrast, the reaction to a provocation is most often than not ad hoc, lacking malice aforethought. Provoking means intentionally making someone else annoyed or angry, it is throwing down the gauntlet, an invitation to fight. Ideally, retaliation should not surpass the provocation, should respect the principle of proportionality. However, we humans have a tendency to overreact.

While both the provocation and the response should be considered criminal, the one who provokes bears greater moral responsibility. The moral culpa is intensified when the party who provokes pretends to play innocent. Deception is an aggravating circumstance of the crime of provocation, the proverbial snake in the grass (latet anguis in herba, Vergilius¹¹), corresponding to the old Spanish adage of tira la piedra y esconde la mano, (throw the stone and hide your hand), commit the crime and deny it. Si fecisti nega!

This applies to the Nord Stream sabotage, the Crimean bridge bombing, the drones over the Kremlin, the targeted killing of journalists and writers. This kind of intellectual dishonesty by the US and its NATO allies, of not owning up to their responsibility, has led many in the non-Western world to turn their backs on the US and Europe¹² and look for leadership elsewhere, hoping for peace through mediation and negotiation¹³ and rejecting any further escalation.Bottom line: Provocation can be subsumed under the concept of aggression and should be seen as an attribute of the crime of aggression for purposes of the Statute of Rome. And when it is anonymous, a deliberate hit-and-run action, the level of punishment should be increased.

It is for the international community represented in the United Nations General Assembly to demand an end to provocations and escalation. Moreover, an investigation and full disclosure of terrorist attacks on civilian infrastructures including the bombing of Nord Stream must be conducted. It would then be for the International Criminal Court to draw the consequences.

* Alfred de Zayas is a law professor 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.

Source: https://www.counterpunch.org/2023/05/10/provocation-is-not-an-innocent-act, 10 May 2023

1 https://www.nytimes.com/1997/02/05/opinion/a-fateful-error.html

2 John Mearsheimer, The Great Delusion, Yale University Press, 2018. https://www.economist.com/by-invitation/2022/03/11/john-mearsheimer-on-why-the-west-is-principally-responsible-for-the-ukrainian-crisis

3 https://richardfalk.org/2022/09/14/ukraine-war-statecraft-and-geopolitical-conflict-the-nuclear-danger/

4 https://www.newyorker.com/news/q-and-a/jeffrey-sachss-great-power-politics

5 https://theintercept.com/2022/04/14/russia-ukraine-noam-chomsky-jeremy-scahill/
https://www.democracynow.org/2022/10/3/noam_chomsky_us_isolated_ukraine_war

6 https://www.counterpunch.org/2022/03/11/236617

7 http://stephenkinzer.com/2023/02/putin-zelensky-sinners-and-saints-who-fit-our-historic-narrative

8 https://www.youtube.com/watch?v=MEzsMk-NH0A

9 The Grand Chessboard: American Primacy and its Geostrategic imperatives, Basic Books, New York 1997

10 https://archive.org/details/ProjectForANewAmericanCenturyRebuildingAmericasDefenses/page/n47/mode/2up

11 Eglogue III, v. 93