(Ця стаття також доступна українською мовою тут. This article is available in Ukrainian here.)
(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
By any measure, Russia’s war of aggression in Ukraine is devastating. Since Russia’s full-scale invasion began on Feb. 24, 2022, over 10,000 civilians have been killed and more than half a million people injured, across a landscape now littered with landmines and precariously situated nuclear facilities. Moreover, around 3.7 million civilians have been internally displaced, over 6 million sought refuge abroad, and 14.6 million are in need of humanitarian assistance. If one goes back to its annexation of Crimea and war in Donbas in 2014, the number is much higher. This is, of course, the story of war – always and everywhere.
The horror of war is a reality that was very present for those who drafted the U.N. Charter in 1945. The 51 states who then comprised the newly formed United Nations sought, under article 2(4) of the Charter, to end the resort to war as a legitimate means of statecraft once and for all. Today, the 193 Member States of the U.N., including many that were still under colonial rule in the aftermath of World War II, disagree on many issues—yet the idea of sovereignty as a bulwark against outright subjection by a foreign power remains foundational.
Against this backdrop, Russia’s war of aggression in Ukraine has raised a host of complex issues—first and foremost for Ukrainians, but also for each and every state in relation to international law. What does (and should) sovereign immunity mean in the face of aggression? What role can sanctions play in moderating the behavior of a state that deliberately violates the foundational rules of international law? How can compensation be secured for the victims of war? What is the role of international law in wartime? The debates over these questions, and many more, draw from and reflect upon challenges, both similar and distinct, in conflicts far beyond Ukraine’s borders.
In partnership with the Ukrainian Association of International Law, who worked with other important stakeholders such as the Ukrainian Bar Association, the American Society of International Law helped to convene, from Dec. 7-10, 2023, a gathering of international lawyers in Lviv, in western Ukraine.
Neither the date, nor the location, was by chance. Dec. 9, 2023, marked the 75th anniversary of the U.N. Convention on the Prevention and Punishment of Genocide. Dec. 10, 2023, marked the 75th anniversary of the Universal Declaration of Human Rights. The Summit was held in the hall at the Ivan Franko National University of Lviv – the very same hall in which Nazi lawyer Governor-General Hans Frank gave his infamous “final solution” speech. Summit participants gathered for a different purpose.
Lviv, remarkably, was home to three pivotal figures in international law, each of whom had to flee their homes and were personally and irrevocably affected by the Holocaust. Two of these lawyers, Sir Hersch Lauterpacht and Louis Sohn, were heralded for their immense contributions to international law during their lifetimes. The influence of the third, Rafael Lemkin, was only recognized after his death. All three were active, contemporaneous members of the American Society of International Law, where their ideas, which were new and radical at their time, were debated.
Lauterpacht, as many readers will be aware, developed the concept of crimes against humanity and laid the normative foundations for the recognition of the role of the individual under international law as reflected in the Universal Declaration of Human Rights.
Sohn was pivotal at the foundational moments of the United Nations’ creation, helping to conceptualize article 51 of the U.N. Charter on the right of self-defense, and later securing the jurisdictional regime of the International Court of Justice.
Lemkin, horrified by the destruction of people based on their group identity, coined the term “genocide,” created the conceptual legal framework for the crime of genocide, and was dogged in his commitment to adoption of the U.N. Genocide Convention.
The landscape of international law has developed significantly since the days of Lemkin, Sohn, and Lauterpacht, and Ukraine today complicates easy binaries. As Patryk Labuda and Taras Leshkovych discuss in a forthcoming essay in this symposium, Ukraine is embedded in a locale that cannot be disentangled from its histories of colonialism, racism, and broader imperial struggle. Ukraine defies categorization as part of either “the West” or “the Global South,” yet much of the scholarly writing has struggled to embrace this reality. As these and other authors will explore, engaging with international law in Ukraine—or any country’s context—today requires balancing the universal principles of the law with the specific contexts in which it is applied.
Gathering in Lviv in December 2023, conscious of the historical significance of the location in which we came together, Ukrainian and non-Ukrainian international lawyers alike discussed, listened, debated, learned, and committed to ongoing dialogue on what international law does, should, and could mean for Ukraine, and what Russia’s aggression in Ukraine does, should, and could mean for international law now, and in the future.
Our decision to launch this symposium on this particular date is also intentional. Today is the midway point between two important anniversaries. One of these is widely known; on Feb. 24, it will be two years since Russia’s full-scale invasion of Ukraine. But earlier this week, there was another anniversary that has gone all but unmentioned outside of Ukraine; Feb. 20 marks one decade since Russia purported to annex Crimea. Many in the international community condemned the action and the United States led a coalition levying sanctions in response. But arguably, the failure of states to push back hard enough against Putin’s brazen violations of international law in 2014, and prior to that in Chechnya and Georgia, paved the way for his subsequent actions.
Like a metastasizing force, the rupture to the international legal order in Crimea spread to eastern Ukraine, then the rest of the country, and catalyzed much broader questions about the overall health of the international order. As Ukrainian international lawyer, Maksym Vishchyk wrote on these pages just three weeks after Russia’s full scale invasion, “International law has never been altruistic, almighty, or all-merciful: we used to romanticize it sitting in our safe apartments far away from Donbas, Syria, Afghanistan, Rwanda, or the Balkans.”
Of course, it is a comparative few, globally speaking, that have ever had the luxury of romanticizing international law. Certainly, for Lemkin, Sohn, and Lauterpacht, the shortcomings of international law were visceral. So too, though, was their belief that whatever its existing limitations, the way forward required strengthening and re-imagining international law, not walking away from it. To return to Vishchyk: “We can blame international law for its incapacity to prevent or stop the war in Ukraine, and we have a moral right to do that. But we face the war in Ukraine with the toolkit that was unavailable to our predecessors in 1914 and in 1939. It is only because of the solid stance of international lawyers of the previous epochs, their faith in the values they fought for, and their patience and foresight, that international law evolved far from where it was a hundred years ago.”
In that spirit, we have invited some of the many who gathered in Lviv to share their reflections on issues that are specific to Ukraine, but that resonate for the future of international law more broadly. Essays over the coming months will include, among others:
- Anton Korynevych and Marney Cheek on Vindicating Ukraine’s legal Rights
- Ivan Horodyskyy on Sovereign Immunity in the Face of Aggression and Atrocity
- Fabricio Guariglia on International Crimes Across an Emerging Accountability Ecosystem
- Perry Bechky on The Role of Sanctions in Moderating Russian Federation Behavior
- Zakhar Tropin on Civil Compensation
- Lucinda Low on Law and Development
- Yuliia Fysun on Return, Post-war Migration, and Inclusion
The symposium is edited by Kateryna Busol, Olga Butkevych, Michael Cooper, Rebecca Hamilton, Gregory Shaffer, and Svitlana Starosvit.