Not far from Kyiv, in a village called Muzychi, lives visual artist Alevtina Kakhidze. She decided to stay in her home country, despite several offers from friends and family to leave. Since the outbreak of the war, her diary entries blatantly reflect the horrors happening in Ukraine. For our newsletter series, she also shared a statement against the war which you can read here.
What does this war tell us about the state of international law?
The international legal order has clearly failed in its primary ambition: the preservation of peace. By general acclaim, international law is now in crisis. But Russia’s attack is not the first nor the last time that power politics has prevailed over the law’s prohibition to use force in international relations. The record of the “West” is also tainted on this count. Its military interventions in Kosovo, Iraq, Libya, Syria, and drone strikes in Yemen or Pakistan have all been illegal. Of course, two wrongs do not make a right and there are differences between these instances. In no other case has the chorus of condemnation been so unified as it is now, which may reflect the fact that Russia’s justifications of the war are beyond the pale. But differences in reaction also point to selectivity and even hypocrisy.
Politicians like former UK Prime Minister Gordon Brown were involved in the 2003 attack on Iraq and now champion the idea of setting up a special criminal tribunal for the Russian aggression. They do this with the confidence that they would not find themselves on the receiving end of international law. Vladimir Putin and his entourage also resort to international legal arguments to justify their actions. But I doubt that they do this with the aim of convincing anyone. The incredulity of their arguments rather expresses their disdain for the law. In the meantime, much of international law continues to work rather unaffected by the war. Stronger still, the law backs many of the non-military responses to the Russian aggression.
International law has continuously been undermined in its cardinal prohibition of the use of force.
There is an obvious contradiction: the law is weak, but all actors try to get the law on their side. Why is that?
International law offers a veneer of legitimacy that many actors care about. Though I doubt that this is the case for Putin’s Russia, whose legal arguments showcase hypocrisy rather than trying to convince anyone. The degree to which public commentary resorts to legal arguments and terminology is also remarkable. It remains a crucial function of the law that, in spite of its weakness on the ground, it offers a rather strong basis for criticism. The argument that Russia’s actions are a criminal act of aggression and that war crimes are being committed has gravity. The appeal of the law is linked to institutional resources that may be levied in response to breaches. Note that the Prosecutor of the International Criminal Court (ICC) went to Ukraine last week, and evidence of war crimes is being collected by a team from the ICC as well as other actors.
The question of whose side the law is on matters in many practical questions down the line, such as the delivery of weapons to Ukraine and all the economic countermeasures, including the sanctions against oligarchs. Several of these reactions would be illegal were they not justified in reaction to Russia’s prior breach of international law. In still further detail, many sanctions against oligarchs are violations of their property, which can only happen legally on a clear statutory basis and in exceptional circumstances.