As the world marks the third anniversary of Russia’s full-scale invasion of Ukraine, and more than ten years of war, Just Security asked Ukrainian and global international legal scholars for their reflections. Has international law sufficiently protected the victim or delivered accountability for the aggressor? What has the war, States’ responses to it, and the current inflection point in the conflict meant for the global order and how it may be shifting? Is peace possible in the near term, and on what terms? How should we understand the role of the United States? Where should international lawyers, States, and their leaders go from here to preserve the rule of law? And what happens next if they fail?
What follow are a series of sober, provocative, and analytically incisive reflections from leading scholars Olga Butkevych, Rebecca Hamilton, Eliav Lieblich, Fionnuala Ní Aoláin, Svitlana Starosvit, and Maksym Vishchyk and Jeremy Pizzi.
Olga Butkevych
Russian military aggression against Ukraine began in 2014. Since then, the reaction of the international community to it was mostly insufficient. The first eight years were characterized by a policy of “appeasement of the aggressor,” which eventually led in 2022 to the full-scale war in Ukraine, accompanied by massive international crimes, such as war crimes and crimes against humanity.
To strengthen belief in international law, it is important to avoid creating a precedent of impunity for the aggressor or war criminals. Trust in international law can only be renewed by restoring full control by Ukraine over all of its territories within internationally recognized borders. Any concessions to the aggressor will ultimately undermine trust in international law and its ability to defend its basic principles. Such precedent would be disastrous for the whole international community.
Each time that a serious crisis in international relations occurs, doubts in international law and its efficacy grow. The strong trend that from each crisis international law came out strengthened and more humanistic is also eroded.
Thus, one of the most crushing European conflicts – the 30-years’ war – was ended by creation of a lasting era of Westphalian international law. The world wars of the 20th century ended with the formation of a universal organization and an international court, and then with an incredible breakthrough in human rights, international criminal law, and the prohibition of the use of force in international relations.
Today, the world order once again faces its crisis. But it is during this crisis that the features of the future order are being formed. Whether this will be an era of dominance of the values of international law depends on the ability of the world community to protect its basic principles and to restore justice.
Rebecca Hamilton
On this third anniversary of the full-scale Russian invasion of Ukraine, I am thinking about the Ukrainian international lawyers that I met in Lviv some 14 months ago, and whose voices we have had the honor of publishing on Just Security. They are brilliant, thoughtful, resilient, and they are my colleagues and friends. I am reflecting with gratitude on the way that they, and so many of their compatriots, have demonstrated through words and action what it means to retain hope, as Václav Havel described it, in situations where hopelessness is an ever-present risk.
On Monday, the United States joined Russia to vote against a U.N. General Assembly resolution that upheld the principles of the U.N. Charter against Russia’s aggression. On Friday, U.S. President Donald Trump and Vice President JD Vance berated Ukrainian President Volodomyr Zelensky, in front of the White House press corps, for not displaying enough gratitude to the Trump Administration. The scene was nauseating. As an international lawyer in the United States, I am working on the edge of hopelessness.
At the United Nations, and in other forums, states often shy away from upholding their international law commitments. This is frustrating, but it is typically a reflection of the messy world of geopolitics rather than an outright assault on a state’s commitment to international law. Many of the 65 states who abstained from Monday’s resolution were operating in this space. The United States’ vote, however, did not simply abstain from supporting the U.N. Charter’s key principles – it took an active stance against them. In so doing, it aligned itself not with those states that seek to evade their international obligations in specific circumstances, but with a smaller cadre of states, like North Korea and Iran, that routinely reject key principles of international law outright.
I have no illusions about the relationship that the United States has historically had with international law, nor about the post-WW II institutional arrangements established to uphold the principles in the U.N. Charter. Since the passage of the U.N. Charter, the United States has benefited from a U.N. Security Council that enables the veto-wielding P5 and their close allies to violate international law without facing the consequences imposed on others who pursue the same conduct. It has never been a level playing field. The U.S. invasion of Iraq, U.S. torture at Abu Ghraib and beyond, U.S. support for Israel’s crimes in Gaza – time and again the United States has failed to live up to its rhetoric as a nation that is committed to the peremptory norms of international law.
For many communities around the world that have suffered under U.S. violations, Monday’s vote can simply be read as a forthright reflection of the United States’ relationship to international law as they have experienced it. For many of us inside the United States though, it has often been possible to seek out a less confronting narrative – for even as the U.S. government violated peremptory norms of international law, that very same government also usually tried to justify those violations, or to argue that there was in fact no violation. Such contortions of reality were infuriating but they underscored that the United States’ commitment to international law still held in theory, even when it was violated in practice. The decision on Monday signaled a very different intention. And the shameful display by the U.S. president and vice president in the White House on Friday removed any remaining space for doubt. It is incumbent upon international lawyers in the United States to view this moment clearly. We can only be grateful that we have colleagues in Ukraine and around the world to continue to look to, and learn from.
Eliav Lieblich
It’s quite difficult to discuss the third anniversary of Russia’s expanded invasion in isolation from Trump’s about-face on Ukraine, particularly as reflected in the United States’ recent negative vote in the UN General Assembly on a resolution condemning the invasion (not to mention the public debacle between Trump and Zelenskyy in the Oval Office). What is striking about this vote is that even BRICS states—which are, of course, much closer to Russia—chose to abstain rather than vote against the resolution. This exemplifies the extent to which Trump is willing to shock U.S. allies and shake the foundations of transatlantic relations, even at the expense of the most basic post-WWII international rules that the United States helped create—and by doing so, going beyond what Russia’s traditional supporters are willing to do themselves.
More generally, I think the past three years have demonstrated the power of invoking double standards to counter legal criticism and the extent to which international actors are willing to deploy such arguments even in cases of clear violations of international law. Russia’s whataboutist arguments have, unfortunately, been well received in large parts of the world, and there is certainly a lesson to be learned here even if these arguments are in bad faith: inconsistency in upholding international law will ultimately serve your adversaries.
Finally, I believe the war in Ukraine also sheds light on the status of combatants. To me, it exemplifies the need to consider defending combatants as victims of human rights violations and the crime of aggression rather than as equal participants in war. The idea that belligerent equality entails that such soldiers can be “lawfully” killed—simply because killing soldiers in war does not violate international humanitarian law—seems exceedingly implausible in such clear-cut cases of unlawful war.
Fionnuala Ní Aoláin
The specter of the United States abandoning its traditional allies, voting against a resolution condemning Russia for its invasion of Ukraine in the UN General Assembly, and maneuvering to reframe the widely accepted aggression of the Russian Federation against it neighbor has been widely covered in the mainstream media. It begs a fundamental question, whether in fact we ought to reconceive of the United States as a “rogue state,” rethinking our perception and analysis of the threat posed by the United States to the stability of the global legal, political and economic order. Drawing on a deep literature on the definition and practice of rogue states, I highlight several relevant features of rogue state behavior. Paradoxically, the deployment of the terminology of rogue states used by U.S. political elites to describe states behaving “beyond the international pale” is now distinctly relevant to the behavior of the United States with regard to Ukraine and beyond.
- Rogue states threaten the stability of the international legal order. They are unpredictable, unreliable, and peripatetic in their behaviors. Fundamentally, there is no confidence that they will act consistently and as such undermine reciprocity and predictably in international relations. Arbitrariness is their calling card.
- Rogue states systematically undermine and violate international norms and more particularly peremptory norms such as the absolute prohibition on the annexation of territory by force per the United Nations Charter.
- Rogue states are undeterrable and difficult to bargain with. They are provocative and pugnacious, and predictably aggressive to their neighbors.
- Rogue states are not only externally capricious but also behave domestically in similar ways. They regularly fail to deliver the presumed political goods that follow from good faith governance, including rule of law, economic opportunity, and basic services like health, education and functional infrastructure.
Addressing the United States as a threat to global peace and security may be a necessary step for States to respond effectively. Naming the particularity of the threat posed by a rogue state is often the start of a painful process of precisely defining the threat, protecting against it, and taking appropriate measures to defend both norms and States from the will of the unchecked rogue.
Svitlana Starosvit
Nobody wants to end this war more than Ukrainians do. It is disappointing that we approach the fourth year of war hearing the same lines of arguments as to how to bring peace. None of the peace proposals addresses the fundamental question for a long-lasting solution: what will hold the deal together, if any is reached. It is possible there is no ideal answer to this question, but at the very least it is worth being asked and debated.
The intellectual discussion in the United States has been oscillating between cynicism (among power politics thinkers) and lofty ideals (among the liberal/a rules-based world order advocates).
Views of the former group, which are less popular but still influential, are based on Ukraine’s concessions as the only way out, ignoring the costs to Ukraine, the agency of the Ukrainian people, most importantly, Ukraine’s continued vulnerabilities vis-à-vis a powerful and aggressive neighbor.
The latter group overestimates the power of legal tools to compensate for the lack of strategic vision and political choices to be made and downplays the cost of the evidently just cause.
Neither group addresses the question how to “de-center” Russia as the sole interpreter of how things should be in the region – a very important precondition for a stable future after the deal.
Maksym Vishchyk and Jeremy Pizzi
Editors’ Note: Excerpts below are from the authors’ powerful recent article The Voices from Kyiv: Is the World Legal Order in Decay?, which readers can find in full in Ukrainian and English.
Shortly after the beginning of Russia’s full-scale invasion of Ukraine three years ago, when Ukraine’s future was fogged by uncertainty with Russian forces just at the gates of Kyiv, one of us wrote a piece arguing that the invasion could not and must not become a death sentence to the current international legal order. The invasion indeed did not do so (or rather, has not yet done so). However, as the world has passed the third-year mark of the invasion, another critical point is arriving as we edge towards negotiations on the war’s resolution. …
[E]ven with the system’s core currently intact, nobody can turn a blind eye to the real changes materializing before us. The collective security system, as envisioned on the pages of the United Nations (‘UN’) Charter 80 years ago, has been exposed as a collective quixotic attempt to make a giant out of thin air. Another ominous sign is the ever-diminishing significance of the UN or certain regional security organizations (such as the Organization for Security and Cooperation in Europe) for the maintenance of international peace and security. …
International law is not dead, decaying or moribund. Simply because it cannot be. Simply because at this stage of human civilization – as it has been throughout centuries – international law is unkillable: in one form or another, states will always seek regulation and it will always be there to regulate. After all, rules permitting wars as a central instrument of state policy were the very core of international law in previous centuries.
However, our legal order is not set in stone. Depending on how rules and their perceptions change, this legal order can continue being modified to a degree of jamais vu. Hardly conceivable but possible, prohibition of the use of force and associated rules can lose peremptoriness, become corroded, and contract to irrelevance.
In the end, this is a battle for a world where the war of conquest is a barbaric act rather than a legitimate right, a battle for states to take on that will rage in upcoming decades. Though states do not act through wills of their own. Behind the abstract of sovereign nations are always human beings, and we will all have to decide for which kind of humanity we stand.