Showing posts with label Legal - Insurance. Show all posts
Showing posts with label Legal - Insurance. Show all posts

Friday, November 15, 2024

210 - Law: Definition of the crime of aggression and the Nordstream affair


source: here
¨
SUMMARY:

This post explores the definition of the crime of aggression under international law, referring to the Rome Statute and UN General Assembly Resolution 3314. It discusses how this definition applies to the Nord Stream pipeline incident, considering the Crime Sequence Reconstruction conducted during the investigation. This reconstruction indicates that elements of the UK government planned, organized, and executed the mission to sabotage critical European energy infrastructure. Additionally, it examines the current public claim that the incident was carried out by a semi-governmental Ukrainian group of divers using a yacht named Andromeda.

KEY TAKEAWAY:

To constitute the crime of aggression, three foundational elements must be present:

A perpetrator exercising control over state action. 

Engagement in the planning or execution of the act. 

The act itself constituting a significant violation of the UN Charter.


DATA:

Definition of the crime of aggression

The crime of aggression is defined in art. 8bis in the Rome Statute of the ICC adopted at the 2010 Review Conference in Kampala. In essence, three elements are required:

First, the perpetrator must be a political or military leader , ie a “person in a position effectively to exercise control over or to direct the political or military action of a State.”

[MRT: The prime suspect is Liz Truss as the head of UK´s military and a small group in the UK government]

Second, the Court must prove that the perpetrator was involved in the planning, preparation, initiation or execution of such a State act of aggression.

[MRT: Which court? The international investigation has been declined/prevented.]

Third, such a State act must amount to an act of aggression in accordance with the definition contained in General Assembly Resolution 3314 , and it must, by its character, gravity and scale, constitute a manifest violation of the UN Charter. This implies that only the most serious forms of illegal use of force between States can be subject to the Court's jurisdiction. Cases of lawful individual or collective self-defence, as well as action authorized by the Security Council are thus clearly excluded.

For more analysis of the definition, please consult our Handbook . Article 8 bis reads as follows:

Article 8 bis
Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of which aggression, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

[MRT: Not this one obviously,..] 

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

[MRT: Nordstream pipelines are incorporated in Switzerland and ownership differs. They are located in EEZs of DK and SWE.]

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

[MRT: Note the case of calls for closing Danish straights for Russian trade and ships, it did not happen and Russian has voiced that such act would be considered an act of aggression.] 

(d) An attack by the armed forces of a State on the land, be it or air forces, or marine and air fleets of another State;

[MRT: Attack my marine forces of a state on marine - seems to qualify. The phrasing is a bit unclear.] 

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

[MRT: I guess Sweden and Denmark has used this clause, JEF connected. They were checking whether the submarine was in their TZs]

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State

[MRT: I guess Sweden and Denmark has used this clause, JEF connected. They were checking whether the submarine was in their TZs] 

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

[MRT: This act could be considered if Nordstream attack was done by non-state actor on behalf of a state.] 

 

RELATED POSTS 

209 - Law expert opinion: Damages to submarine cables and pipelines in time of peace and war: the nord stream sabotage


OTHER RELATED POSTS: 

167 - About the NATO statement: "deliberate, reckless, and irresponsible acts of sabotage"


***
- INDEX -

***
Uncovering the truth took over two years of self-funded, tireless investigation.
I decided to open it for free, no paywall, despite huge investment.
Because the truth matters.
Please consider supporting my work with a donation.

Every bit helps keep this mission alive!

mortymer001
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209 - Law expert opinion: Damages to submarine cables and pipelines in time of peace and war: the nord stream sabotage

What are the opinions of law experts regarding the event?

(found by 
Thomas Olbrich
, 
@ThoOlb here)

SUMMARY

A legal expert assesses the implications of the Nord Stream sabotage, revealing the limitations of current international law in safeguarding undersea infrastructure during both peace and conflict. The exploration of piracy law as a potential avenue for recourse highlights the intricacies in attributing blame amid hybrid warfare tactics. 

KEY TAKEAWAYS:

The Nord Stream sabotage has underscored the vulnerability of submarine cables and pipelines. 

Current international regulations, particularly UNCLOS, fall short of adequately protecting these infrastructures in times of peace. 

The law of piracy may be invoked for damages incurred beyond national jurisdiction. 

International Humanitarian Law (IHL) governs wartime actions, yet its application in hybrid warfare situations is fraught with complexity. 

This incident reveals the intersectionality of various branches of international law, including the law of the sea, piracy law, and IHL. 

The interplay of ambiguous evidence and competing theories surrounding the sabotage complicates the assignment of responsibility.

Evidence found in this investigation indicates that several states may have had prior knowledge of the attack.


DATA:

NAME: Law expert opinion: Damages to submarine cables and pipelines in time of peace and war: the nord stream sabotage

AUTHOR: Daniel Hernández Benito

Source: https://amsterdamlawforum.org/articles/487/files/66a0a2b3c65d0.pdf

Downloaded at: https://amsterdamlawforum.org/articles/10.37974/ALF.487

Abstract:

In late 2022, the Nord Stream sabotage put a spotlight on the vulnerability of submarine infrastructures like cables and pipelines and underscored the importance of protecting them against intentional damage. UNCLOS provisions are relevant in time of peace. However, legal design and state practice make them insufficient, yet the law of piracy could be a last recourse against private actors. Moreover, in time of war, like Russia’s invasion of Ukraine, states must resort to IHL, which protects infrastructures not exclusively serving neutral states. This work underscores the convergence of different disciplines of international law.

[MRT: It is worth to read the whole paper to get better understanding of applied law.]

V. Conclusion

As Travers Twiss affirmed in 1880, ‘[t]he great arterial lines of telegraphs have become indispensable for the circulation of the political lifeblood so necessary to maintain the vitality of our modern international state system.’97 Now, this statement can be also applied to pipelines that, like Nord Stream, supply nations with the resources they need to carry out their ordinary activities. Their importance justifies interest in their protection, but, as we have seen, this protection may be deficient.

[MRT: Interesting point, is this why Russia has lately put SWE, DK, GER to court? For their failure to protect??? This investigation shows that USA and allies had prior knowledge about the possible attack against the pipeline system.] 

To begin with, critical undersea infrastructure laid in the territorial sea falls within the territorial jurisdiction of the state, which may protect them, as in Sweden.

[MRT: Note that both blast sites were outside Territorial zones (TZ) but in EEZ of DK and SWE. Note also that the SWE investigator was investgating whether Swedish TZ was USED for launching of the attack. This COULD mean that Sweden was checking if there would be any legal consequences. ONe of such scenario COULD a mother submarine in EZ sending "a last mile delivery" minisubmarine (or similar) into DK, SWE TZs.] 

[MRT: The EEZs in the Baltic sea] 

In contrast, those laid in the EEZ and the high seas face two challenges.


[MRT: Note that DK, SWE ships which were checking/protecting something a week before the event. Their paths in the EEZ were classified. Why? Would it be possible to distinguish for example that they have conducted anti-submarine/anti terrorism/police missions?]

On one hand, there is little leeway for states to prevent the laying of these cables and pipelines for security reasons as shown by Sweden’s reluctant acceptance to grant the permit for the Nord Stream project crossing its EEZ. On the other hand, states have failed to protect them despite having prescription and enforcement jurisdiction on the grounds of the nationality principle.

[MRT: This post shows that there was some knowledge about impending threat to infrastructure and security in the Baltic sea - each and every state has been conducting some police and/or naval exercises, including Russia - post here] 

Hence, relevant provisions in criminal codes – where existent – lack proper enforcement mechanisms.

[MRT: Is this what the Rishi Sunak´s 2017 is about? Could THAT be a reason WHY pipelines were attacked in the first place? Check post 051 - Rishi Sunak´s 2017 report about vulnerability of subsea internet cables] 

Finally, the law of the sea in times of peace offers an alternative instrument, the law of piracy, which, following a broad interpretation and abandoning the two-ships rule, could be applied universally to subjects acting without the consent of a state and causing damage to property in areas beyond national jurisdiction.

In times of war, these rules remain largely applicable but for some modulations. First, submarine cables and pipelines exclusively serving the belligerents and constituting legitimate military objectives – presumptively all, since there is some agreement that they are of a military nature (Rule 83 f) OM) – may be cut at any point (Rule 40.12 SRM).

[MRT: At the moment of the attack the UK (prime suspect) was not at a declared war state with Russian Fderation, Germany, Netherland nor France. Note that the definition of "property" differs in case of NS1 and NS1. Both are icorporated in Switzerland but,... The NS1 is a 51% owned by Gazprom in which the Majority stake is Russian State through several agencies. The 49% stake is EU companies in which states of GER, FRA and DUT have certain share. The NS2 case is different,, it is fully owned by Gazprom and same shareholders as in NS1 have provided loan in sae 49% proportions. Since the NS2 is fully owned by Gazprom in which the majority stake has the Russian state it is a de facto attack against a property of Russian state - it could under certain condition be seen as a "causus belli" (declaration of war). Law experts need to look into this. Check also post about 154 - UNCLOS - The United Nations Convention on the Law of the Sea AND Nordstream] 

However, those not exclusively serving the belligerents and involving at least a neutral state, like Nord Stream under the ‘qualified neutrality’ paradigm, must be protected.

[MRT: There are some indices, like from the head of German Navy that they were trying to protect key subsea infrastructure but ultimately failed. Note that it is ALSO possible that the USS Kearsarge group has LEFT the Baltic sea for the very reason, that they did not need to protect the pipeline post here: 111 - The USS Task Force 61/2 deployment in the Baltic sea during September 2022. Note also that Norwegian State Secretary Eivind Vad Petersson attended a meeting with the marine insurance company Gard on 26 Sept 2022 about challenges in connection with the sanctions against Russia.] 

In any case, the availability of remedies to respond to such a violation of the law of neutrality under the law of state responsibility and the law of the use of force clashes with the emergence of hybrid warfare, which blurs the responsibility of states and confuses the final picture. Nord Stream’s case is particularly telling in this sense, as several theories regarding its authorship remain alive nine months after it happened, and no decisive evidence has been published.

[MRT: This investigation shows that there is enough data/evidence which should be looked at. There is a possibility and the investigation looks like shows that the affair fills the Definition of the crime of aggression] 

Lastly, there is a further lesson that we can learn from this study: the security of submarine cables and pipelines, embodied here in Nord Stream, is at the centre of an area of convergence between the law of the sea, the law of piracy and international humanitarian law.

These are distinct legal frameworks, but they all help to address the problems that arise when an incident like this takes place. Not only do they offer different alternatives depending on the characterization of the author – a ship flying the country’s flag or a foreign one, a pirate or a state agent – but they also provide states with imbricated regimes that can tackle different aspects of the same problem.

[MRT: I have realized this very legal issue at the very moment the affair happened and was surprised that some VIPs were very fast able to define the event as "sabotage" while Russia and Ukraine called the even a "terrorist act". Looking n this issue who said what I collected statements in this post: 030 - Who said it is a "Sabotage" first?. It is impossible that certain top politicians knew that it was "sabotage" - this then proves that they KNEW who has done it and they also knew motives.] 

For instance, international humanitarian law enshrines the sanctity of the territorial waters of neutral states and Article 19 UNCLOS allows states to restrict passages that are not innocent.

[MRT: Would be interesting to learn what orders German and other navies had while they run their naval operations in September 2022. Some parts of those naval exercises were policing and anti terrorist actions.] 

Similarly, where a cable has been damaged in a manner that may not be consistent with international humanitarian law rules described in Section 4, the PCSC establishes the right to board and visit foreign ships beyond territorial waters and allows the collection of necessary information. Yet this does not apply under UNCLOS and – what is more – to pipelines and harms security in waters beyond national jurisdiction.

In conclusion, a comprehensive study of the international protection of submarine cables and pipelines with the occasion of the Nord Stream sabotage shows the complexity of a subject in which different fields of international law overlap.

 Although a systematic review of existing international instruments can shed some light on the legal definition of diverse damages, it also shows that the gap is still open.

 

RELATED POSTS:






OTHER RELATED POSTS: 

167 - About the NATO statement: "deliberate, reckless, and irresponsible acts of sabotage"



***
- INDEX -

***
Uncovering the truth took over two years of self-funded, tireless investigation.
I decided to open it for free, no paywall, despite huge investment.
Because the truth matters.
Please consider supporting my work with a donation.

Every bit helps keep this mission alive!

mortymer001
(retweet and follow)
Posted by at No comments:
Labels:

Monday, September 9, 2024

171 - September 2022 - The UK sabotaged Nord Stream AG by not delivering INCOTERMS

ABOUT:

INCOTERMS AND NORDSTREAM 1 GAS TURBINES MAINTENANCE


7 Sept 2022 - Eastern Economic Forum plenary session

The President took part in a plenary session of the Eastern Economic Forum. The theme this year is On the Path to a Multipolar World.



Vladimir Putin: Nord Stream 1 is practically closed, and everyone is saying: 

“Russia is using its energy weapon.” More nonsense and rubbish. What weapon are we using? We supply as much gas as our partners need, as much as they order. We are not pumping gas into the air but supplying the amount ordered. We fill the orders that we receive.

What has happened? The operation of one of the two gas pipelines running across Ukraine was suspended by Ukraine for a made-up reason, alleging that there was no control over it. They closed it themselves. It was not us who closed it, Ukraine did it. This is my first point.

Another pipeline, Yamal–Europe, runs across Poland. Poland imposed sanctions on this gas pipeline and suspended its functioning. Was it us who did this? No, the Poles did it. The Ukrainians did it and the Poles.

Regarding Nord Stream 1, our German partners have agreed that all technical aspects of Nord Stream 1, including the maintenance of gas-pumping turbine units, are subject to British law because – I myself was unaware of this and learned about this from Mr Miller – Gazprom had to sign a contract for the maintenance of these units made by Siemens not with the Siemens main office but with its subsidiary based in the United Kingdom, which slapped sanctions on Gazprom, and agreed to repair the turbines at a Siemens plant in Canada.

What do we have to do with all of that? Canada finally took it but yielded to numerous requests coming from Germany and gave it to Germany, whereas under an agreement with a Siemens subsidiary in the UK, the turbines were to be shipped straight to St Petersburg. Logistics arrangements have changed and the contract has to be revised. The British-based Siemens subsidiary will not even respond to Gazprom’s inquiries.

[MRT: I stated in early 2023 that INCOTERMS changed hence the delay - I have deducted that issues were with INCOTERM documents - see here May 17, 2023] 

You can take as many photos with the turbine as you want, but give us the documents, for crying out loud. This is our property. We need to understand the legal status of this property and its technical condition. They give us nothing but chit-chat.

The last turbine is now out of order, so Siemens representatives came to look at it. There is an oil leak, which is an explosion and fire hazard. There is no way for the turbine to remain operational given its current condition. Give us the turbines, and we will turn on Nord Stream 1 overnight. They do not give us anything. They say we are weaponising it. What are they talking about? They themselves messed things up big time and are now not sure what to do about it. They drove themselves into a sanctions dead end.

There is only one way out. In Germany, people are rallying to turn on Nord Stream 2. We are supportive of the demands by German consumers and we are ready to turn it on as early as tomorrow. All we need to do is press the button, but we are not the ones who imposed sanctions on Nord Stream 2. It was done under pressure from the United States. Why is it exerting pressure? Because it wants to sell its gas for a pretty penny. We are aware of the position of the former US administration as well. They said, “Yes, we sell at a higher price, but let them buy ours because we offer them protection.” Let them buy then if they choose to. We will sell our product.

Ilya Doronov: Since we are talking about Britain, I have a follow-up question for you. Liz Truss is the new Prime Minister succeeding Boris Johnson. What are your expectations regarding the new Prime Minister? Am I right to think that there is no hope to see our relations improve after everything she had to say?

Vladimir Putin: Listen, the UK process for electing the head of state is far removed from the principles of democracy. It is confined to the party that won the previous parliamentary election. The people of Great Britain have no say in the change of government. The ruling elite stick to their rules. We know where the Tories stand on these issues, including with regard to Russia. It is up to them to decide how they are going to build relations with the Russian Federation. Our job is to protect our interests. We will do so consistently, let there be no doubt about it.

 

16 Sept 2022 - News conference following visit to Uzbekistan

Putin: "...These are erroneous reference points in the green agenda, rushing things, and the green energy being unprepared to meet to the demand for huge energy resources to support economic and industrial growth. The economy is growing while the energy sector is shrinking.

This is the first drastic mistake.

The second mistake concerns natural gas.

We made attempts to persuade the Europeans to focus on long-term contracts rather than solely on the market. Why? I said it before and will repeat it once again: Gazprom needs to invest billions in development but it must be confident that it will sell gas before making investments. This is what long-term contracts are about.

Mutual obligations are incurred by the sellers and the buyers. They said, “No, let the market regulate itself.“ We kept telling them, “Don't do it or it will lead to drastic consequences.” But in fact, they forced us to include a significant share of the spot price in the contract price. They forced us to do this, and Gazprom had to include both the oil and oil product basket but also the spot price in the gas price. The spot price began to grow, causing the increase in the price envisaged even in long-term contracts. But what does it have to do with us? This is the first thing.

Second, I told them many times. “Gazprom is not supplying gas.”

Look, are you normal people or what? Poland chose to impose sanctions against the Yamal-Europe gas pipeline and shut off the route. I told Mr [German Chancellor Olaf] Scholz: “Why are you calling me? Call Warsaw and ask them to reopen the route.” That is all there is to it. That’s the first.

Second. Two lines of the gas pipeline run through Ukraine. Ukraine is being supplied with weapons, but it went ahead and closed one of the lines for them. They also shut off another line that supplied 25 billion cubic metres of gas – I will not talk about the exact amount, but they shut off the entire route. What for? Call Kiev and ask them to reopen the second line.

And finally, Nord Stream 1. One turbine goes out of order after another. Are we breaking them? As regards the latest turbine breaking down and being taken out of service – what actually happened?

There was supposed to be a routine inspection and maintenance works; they opened the unit in the presence of Siemens specialists and found an oil leak there, which created a danger of an explosion. They saw it, and they put their signatures under the document. The turbine has to be repaired and it is not operational, with a risk of fire and explosion. But what does it have to do with us? Go ahead and repair it.

We were told: look, they delivered a turbine from Canada but Gazprom will not accept it. But Gazprom is right in doing so. We said so many times: Gazprom’s contract for servicing turbines is not with Siemens but with a UK-based Siemens subsidiary. That is what it is all about.

And this UK-based subsidiary must provide documents that specify that sanctions have been lifted from the turbine as this is our property, and Gazprom must be sure of it because it may choose to sell it, say, to Iran, China or some other country. It means that the sanctions have been lifted and it is in a proper technical condition. The Siemens subsidiary must provide [guarantees] but has not provided anything but idle talks. That is what it is all about.

Also, it was necessary to make amendments in the logistics contract as the turbine was supposed to be delivered from Canada to St Petersburg, but it was delivered to Germany. This may seem unimportant at first glance but it has practical importance. Look, are we making all this up? And this is what led to Nord Stream 1 stopping operation.

[MRT: This is exactly as I expected, the place of delivery changed into 3rd country so new documents needed to be issued, turbines needed to be re-certified by Siemens engineers in Germany that they have NOT gotten any damage through transportation. This is about logistics, not politics, often engineers/technicians have their schedule with different customers so I guess the delay could be explained rather by natural events than intent.] 

After all, if they need it urgently, if things are so bad, just go ahead and lift sanctions against Nord Stream 2, with its 55 billion cubic metres per year – all they have to do is press the button and they will get it going. But they chose to shut it off themselves; they cannot repair one pipeline and imposed sanctions against the new Nord Stream 2 and will not open it. Are we to blame for this?

Let them think hard about who is to blame and let none of them blame us for their own mistakes. Gazprom and Russia have always fulfilled and will fulfil all obligations under our agreements and contracts, with no failures ever.


RELATED POSTS:

159 - Nordstream affair - The Opening Act


139 - The Legal Trigger - PCA CASE No. 2020-07, PROCEDURAL ORDER NO. 11


026 - The $1.5 Trillion Margin Call on EU energy Utilities


199 - Consistency of Russian claims about Nordstream affair

***
- INDEX -

***
Uncovering the truth took over two years of self-funded, tireless investigation.
I decided to open it for free, no paywall, despite huge investment.
Because the truth matters.
Please consider supporting my work with a donation.

Every bit helps keep this mission alive!

mortymer001
(retweet and follow)
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