Ukraine’s no-fly zone does not require NATO nor a UN Security Council Resolution: it needs good to cooperate & prevent evil from destroying our planet

One hundred and forty-one states – a vast majority of 193 who are members of the United Nations recognize and identify Russia as an aggressor. Only 5, unhappy, United Nation countries stood by Russia’s side. The text of the draft resolution is important as its contents should be used to build a coalition of states willing to establish a no-fly zone (NFZ) over Ukraine. 

The United Nations General Assembly Draft Resolution (UNGAR) A/ES-11/L.1 identifies Russia as an aggressor, and moreover: 

1. Condemns Russia’s decision to ready its nuclear forces;
2. Expresses concern that millions of people beyond Ukraine’s border stand to starve to death in several regions of the world as a direct result of Russia attacking one of the most important places in the world for grain exports;
3. Expresses commitment to the sovereignty, independence, unity and territorial integrity of Ukraine within its internationally recognized borders, extending to its territorial waters;
4. Deplores in the strongest terms the aggression by the Russian Federation against Ukraine;
5. Demands that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State;
6. Demands that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders;
7. Deplores the involvement of Belarus in this unlawful use of force against Ukraine, and calls upon it to abide by its international obligations;
8. Condemns all violations of international humanitarian law and violations and abuses of human rights, and calls upon all parties to respect strictly the relevant provisions of international humanitarian law 
9. Urges the immediate peaceful resolution of the conflict between the Russian Federation and Ukraine through political dialogue, negotiations, mediation and other peaceful means (NFZ is a peaceful means)

 Points c, d, e, f, g and h are of particular importance as they pertain to establishing a NFZs over Ukraine. Combined, they provide a preliminary foundation for the creation of a coalition of states who support Ukraine’s plea to help close its skies from the aggressor. Each state who voted for this resolution, and particularly the 94 states who cooperated in drafting it, need to be thanked, and potentially called upon to support a no-fly zone over Ukraine.

It is true that UNGA Resolutions are not legally binding. They are political instruments that guide policy. This means that of all the states that voted for the resolution recognize and will be implementing policies to stop Russian aggression. Notably, in times of war, policy often supersedes the law –  jus in bellum. 

Briefly about No-fly Zones

A NFZ is a relatively young concept and only three have been implemented since 1991. Importantly, not all were established by the UN Security Council (UNSC) and only one was immediately implemented by NATO forces. Rather, NFZs have been put into place by other states over the airspace of aggressor states. Thus, in the past, NFZs actually authorized third states to establish air supremacy (to be distinguished from air superiority) over states who were killing their own people.  Unlike Russia, Ukraine is not the aggressor (or belligerent state), she is the victim; pleading with her allies and partners to cooperate and protect the airspace over Ukraine’s territory – over land and sea! 

An additional key element of Ukraine’s plea is that the NFZ shall be implemented for humanitarian purposes; to protect the innocent people on the ground and waters, and equally important, to protect Mother Earth from nuclear and chemical disaster. Ukraine is not calling anyone to close the skies above Russia, who is now cracking down on its own people; those demonstrating against the Kremlin’s brutal violence abroad. 

The military measures required to establish a humanitarian no-fly zone are only a means, but not their purpose. The military presence is to assure safety not to overcome the belligerent state. Thus, the implementation of a NFZ, particularly upon invitation of a targeted state, is really an effective extension of diplomacy. 

A Brief History & Why a UN Security Council Resolution and NATO are not requisites for Ukraine

Iraq

In 1991, the United Kingdom and France declared two NFZs over the territory of Iraq. They were arranged and implemented between 1991 and 1992. Note – three separate NATO states (UK, USA & France), without NATO as a whole, initiated a NFZ over a foreign state. They justified the NFZs zones with humanitarian purposes in light of the 1991 UNSC Resolution 688. This resolution demanded Iraq remove the threat to peace and security, end the repression, respect human rights and insisted on access for international humanitarian organizations. 

UNSCR 688 (1991) and the UN Security Council did not establish no-fly zones! Moreover, the resolution was neither based on Chapter VII of the UN Charter, nor did it even mention a NFZ. It only appealed to Member States to contribute to the humanitarian relief effort. This is important for Ukraine as it needs a humanitarian aid presence and UN peacekeepers on the ground as soon as possible!

Then, in April 1991, with operation PROVIDE COMFORT relief flights began dropping supplies, as forces of a 12-country Coalition entered northern Iraq and established a security zone. That Coalition established a no-fly zone within Iraq north of the 36th parallel. Aircraft of Turkey, France, the United Kingdom, and the United States began flying from Incirlik Air Base in Turkey to enforce the no-fly zone.

Importantly, as it pertains to the situation at hand in Ukraine, the states who formed this Coalition (United States, United Kingdom, Germany, France, Australia, Netherlands, Turkey, Italy, Spain, Portugal) with the exception of Iraq, are co-authors of the UNGA Draft Resolution which identified Russia as the aggressor state. Thus, they are experienced in coordinating and working together in humanitarian NFZ-related environments, and could foreseeably play a coordinative role or conferencing role in protecting Ukraine’s airspace from being used to kill its citizens and invade its critical infrastructure, including nuclear and chemical plants.

Bosnia-Herzegovina 1992

In September 1992, it was agreed at the London Conference (attended by at least Croatia, Serbia, Bosnia and Herzegovina, Macedonia, Italy, representatives of Italy, UNHCR, OSCE, EU, UN Mission – UNPROFOR) that as a confidence-building measure, and to facilitate the delivery of humanitarian assistance, military flights over Bosnia-Herzegovina would be banned. The UNSC established a no-fly zone by banning unauthorized military flights over the Republic of Bosnia-Herzegovina to ensure the security of humanitarian flights. After being consistently violated, the UNSC expanded it on the basis of Chapter VII of the UN Charter to all flights unless authorized by the UN Protection Force (UNPROFOR).  Member States were authorized by the UNSC to take all necessary measures, proportionate to the specific circumstances, to ensure compliance with the flight ban. 

The UNSC adopted Resolution 781 prohibiting military flights and authorizing UNPROFOR to track compliance through the placement of observers at military airfields.

Notably, NATO only stepped in later with its Airborne Early Warning and Control System (AWACS) in support of the effort: its aircraft began monitoring the zone passing collected data to UN authorities. Despite this combined UN and NATO effort, Bosnian Serbs continued violating the NFZ and flight ban leading the UNSC to adopt Resolution 816 in 1993. Importantly, it authorized member States: …. acting nationally or through regional organizations or arrangements, to take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR, all necessary measures in the airspace of the Republic of Bosnia and Herzegovina, in the event of further violations to ensure compliance with the ban on flights . . . and proportionate to the specific circumstances and the nature of the flights.

This NFZ established by a UNSCR was enforced by NATO members in an operation known as DENY FLIGHT.

Libya 2011

In 2011, as a result of the internal conflict in Libya, the UNSC passed resolution 1970 to cease hostilities and to respect human rights. That same year, after the Libyan government’s failure to comply, the UNSC, acting under Chapter VII of the UN Charter 5, passed a second resolution (res.1973) with a comprehensive package of measures which included a no-fly zone and flight ban. The NFZ and flight ban were established by the UNSC to help protect civilians as well as to secure the safety of the delivery of humanitarian assistance. They also played a decisive step for the cessation of hostilities. The term “no-fly zone” as used in UNSCR 1973 (2011) was used with a new meaning: the legal suspension of a State’s right to exercise effective control in its national airspace. 

Britain, France, the US, Norway and Qatar, also co-authors of the aforementioned draft identifying Russia as an aggressor against Ukraine are among the countries that said they will help to enforce the no-fly zone in Libya. 

Notably of these three NFZ examples, only DENY FLIGHT was explicitly authorized in a Security Council resolution. However, all three look to the UN Charter and the authority it vests in the Council for legitimacy. Since the aforementioned no-fly zones violate traditional notions of near absolute sovereignty over one’s own territory, a zone not at least arguably grounded in the Charter regime would be unlikely to survive international scrutiny. 

Unlike in these previous cases, Ukraine’s unique case circumvents many legal and political stumbling blocks. This violation of Ukraine’s air superiority and supremacy are not applicable to the current case at hand which greatly unties the hands of those states who are willing and able to create a Coalition to defend Ukraine. 

A bit about the UNSC and Article 51 UN CHARTER

For states, the right to self-defense derives its legal basis from Article 51 of the UN Charter. At the base level is national self-defense, the act of defending one’s country and national interests. Generally, national self-defense is accomplished by declaring forces “hostile”. The mere existence of hostile forces renders them targets.

Ukraine and the UN have recognized the Russian Federation as an aggressor state. Importantly, the political authorities of friendly member states may (and have in the past) extend a defensive umbrella to other States or their military personnel. Collective self-defense is an essential element in a combined no-fly zone operation during which aircraft of a particular nation typically perform set functions, such as reconnaissance, relying on aircraft from another nation for protection. Article 51 legitimizes this cooperative approach. Ukraine, at this point is not asking the Security Council to decide and authorize military action under Chapter VII. It does not need to.

A no-fly zone established by the UNSC must be strictly distinguished from the right of a State to prohibit or restrict the use of its airspace. Ukraine, unfortunately, at this time is not in a position to protect its airspace, it literally gave away its nuclear arsenal in the name of global peace and cooperation in the 1990s and has not yet had the opportunity to establish adequate air defense systems for itself. Ukraine is asking for states to aid it in collective self-defense. Those states who helped relieve Ukraine of its nuclear weapons and promised, by way of the Budapest Memorandum to protect its territory and people, really should step up to the plate in helping Ukraine establish the badly needed NFZ. Moreover, nothing is preventing Ukraine from reaching out to private corporations to facilitate its establishment. This is not the 20^th Century anymore and corporations and technology have gained much more presence in global affairs…. So, when Putin rattles his saber threatening all states that a NFZ will implicate them as aggressors…. corporations have very little to worry about here.

Other proponents of a NFZ should be lauded but their irrational fear of Russia may backfire into promoting Russia’s policy against Ukraine. Namely, some are proposing to put in place a no-fly zone protect the civilian population in an exclusion zone that would only cover Kyiv and western Ukraine — but not extend further east to avoid coming close to Russian borders. Such a NFZ policy would certainly support Russia’s plans of carving up Ukraine and aligns perfectly with maps we have seen from various defense sources. But, let us be frank, the human beings in Kyiv, to the east and south of it are no less human, and deserve no less freedom than those elsewhere. Also, there are in fact more dangerous chemical and nuclear plants in the proposed 

“NFZ exclusion zone” there than in other areas of Ukraine. Partitioning a NFZ in fear of Putin shows a lack of forward thinking as well as an apparent lack of awareness of modern defense capabilities including non-lethal jamming systems. 

The narrative that Russia’s war is an East-West Crisis is passé and the solutions being offered lack creative thinking. There are innovative, clever ways the international community, public-private partnerships could be cooperating to establish and implement a desperately needed NFZ over Ukraine.  The lack of imagination was also voiced by Black Water founder Eric Prince who noted, for instance a lend lease program that would provide deterrence. Referencing almost 150 fighter jets (F-15s, F-16s, and A-10s), any package of which, according to Prince, if flown to Ukraine and badged Ukrainian aircraft, flown by Ukrainians, flown by American contractors, or flown by Europeans would provide deterrence.  Along similar lines, Poland may provide Ukraine MiG-29 fighters and Su-25 attack aircraft, receiving in return from the United States F-16 fighters.

Recommendations

Many of the states who have drafted the resolution on Russia’s aggression against Ukraine have experience in establishing, as well as enforcing NFZs (i.e., United States, United Kingdom, Germany, France, Australia, Netherlands, Turkey, Italy, Spain, Portugal). Importantly, moving away from the NATO narrative, states like Qatar, Kuwait and Israel may actually play unexpected roles in protecting Ukraine’s airspace. Israel is very well versed in NFZs due to its own geopolitical predicament. Its Prime Minister Bennet is speaking with Russia, Ukraine and working with the United States, France and Germany to manage the crisis in Ukraine, with Israel potentially in a good position to be a mediator given its strong alliance with the U.S. and a relationship it’s built with the Kremlin while coordinating with Russian troops in Syria over Israeli airstrikes there against Hezbollah. Multi-national corporations are stepping in and implementing their own sanctions against the belligerent state. Their tech capabilities may serve public partnership very well within the NFZ framework.

First, Ukraine must identify its true partners and allies – even utilizing public-private-partnerships if necessary to formally call for a NFZ.  It is not necessary to limit these partners to state actors as corporations and public-private partnerships may play a precious role in saving Ukraine and de-escalating Kremlin’s provoked potential global war.

Second, Rules of Engagement must be developed. Properly designed, NFZs have three underlying bases that operate in tandem and synergistically- policy, law, and operational concerns.  The scope and Rules of engagement should be clearly defined. 

Third, de-escalation, deterrence and defence of humans and nature must be the focus in limiting Russia’s military bombing. For instance, the following flights should be allowed:

• purely humanitarian flights (such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals),
• flights for the monitoring of the no-fly zone
• flights for the enforcement of the no-fly zone,
• flights necessary to protect civilians and civilian populated areas under threat of attack,
• flights necessary to protect nuclear and chemical plants as it has already been shown that Russia and Belarus are not only prepared to use, but are using environmental catastrophe as a weapon in violation of the 1976 ENMOD Treaty as well as ICC.

In the course of history – not a single NFZ has been asked for and implemented in cooperation with a sovereign state being bombed by an aggressor threatening nukes. Ukraine’s call for a NFZ to be established over its territory provides us with a unique case: it is requesting and calling for other peace-loving states to come and help defend her skies from the aggressor.  

Ukraine is not asking the international community to close the skies over the Russian Federation (who has started implementing brutal control systems against its own people in the wake of Russia’s war), nor Belarus – which is also targeting Ukraine alongside Moscow.

It is time to listen to the innocent, sovereign, peaceful state under attack from a nuclear aggressor. The time to establish a Coalition which foreseeably includes private corporations that will help protect Ukraine’s skies using cutting edge technology. It is now the time to continue using diplomacy, engaging those states and, possibly corporations, who are willing and able to protect civilization from warmongers. Diplomacy takes time, and it is time to move quickly. 

The enforcement of the NFZ is the next chapter of this story.