08 Mar A Visible College: Public Engagement with International Law(yers) During the Ukraine Invasion
In an article written after the NATO intervention in Kosovo, Charlesworth describes international law as a “discipline of crisis.” To Charlesworth, the discipline of international law is stifled by scholars’ fascination with moments of crisis for the law’s enforcement and development. This fascination, she argues, prevents us from investigating the ways in which international law shapes everyday life outside the contexts of war, terrorist attacks, natural disasters, and the like. Charlesworth’s critique relates to the way international law is treated as an object of academic study, her call being for critical scholars to move away from crises and to focus, instead, on the insidious, often-silent ways in which international law operates on the ground.
Yet there is another way in which we can look at this relationship between international law, crisis, and everyday life. Political flashpoints, particularly those involving extreme violence and humanitarian catastrophe, are generally the moments in which the public engages most with international law. One might dismiss such engagement as insignificant, arguing that international law is “remote and technical: something that happens only far away at the UN, or when world leaders shake hands at lavish, highly securitised summits” (p 2). Yet it is precisely this perception of international law’s remoteness that makes the public’s engagement so significant. Global crises lead international law scholars to work as public academics, politicians to invoke international legal arguments, and the media to characterise international law and legal institutions as toothless tigers. Such encounters with international law can be the basis of the public’s understanding of how international law works (or does not), informing opinions about whether leaders should or should not comply with it. I explore these possibilities below, focusing on international law’s appearance in three spheres of public life in the context of Russia’s invasion of Ukraine.
II. A Visible College
Well before the advent of the internet and social media, Schachter observed the development of an “invisible college” of international lawyers, “[d]ispersed throughout the world and engaged in diverse operations” but united by their common purpose of studying, enforcing, strengthening, and developing international law (p 217). According to Schachter, members of this invisible college develop common approaches and understandings of international law as they travel the world to study or take up various roles as practitioners or scholars.
Schachter celebrated the “interpenetration” of ideas between scholarship and legal practice, but he could not have foreseen the extent to which international lawyers now exchange ideas with one another and the public through social and mass media. Russia’s invasion of Ukraine is not the first time that international lawyers have stressed, in the public sphere, the illegality of a state’s use of force or perpetration of indiscriminate violence against a civilian population. In 2003, scholars including Christine Chinkin, Susan Marks, and Ben Saul published an open letter in the Guardian decrying the United States’ impending invasion of Iraq. Though filed by the Guardian as a “politics” story, the letter’s intention was clearly to highlight the law’s importance in times of conflict. “We are teachers of international law,” the letter’s opening line reads. “On the basis of information publicly available, there is no justification under international law for the use of military force against Iraq.”
The condemnation of Russia’s invasion has been widespread, with statements published by organisations ranging from student law societies in Sydney, Australia – located 15,000 kilometres from the war – to global networks of human rights scholars. But more significant to this piece is the way in which international lawyers have contributed their perspectives on the situation to public debates surrounding the invasion. International lawyers on every continent have published blogposts and newspaper articles, arguing that the invasion cannot be justified as lawful humanitarian intervention, explaining the UN Security Council’s role, and highlighting the importance of documenting all atrocities committed by Russian forces in Ukraine. Dr Katharine Fortin, an Associate Professor of International Law and Human Rights at Utrecht University, even reported that she wrote to her children’s schools asking if she could speak to students about the international law dimensions of the invasion.
Simply put, the college of international lawyers is visible and united, and it plays three key roles in situations like this one. Firstly, the discipline of international law is a form of expertise that can and should be offered to all those seeking to understand the invasion. Just as a military analyst might explain Russia’s strategy or a nuclear scientist might explain the significance of the disruption of topsoil at the site of the Chernobyl disaster, international lawyers can answer significant questions about what has happened, and might happen, during this invasion. Secondly, the answers that lawyers provide can disprove the above-mentioned perception that international law is remote, showing instead that the law is present on the ground, particularly in conflict situations. For example, the legal protection of civilians in armed conflict, and the concomitant loss of this protection for civilians who directly participate in hostilities, is key to current discussions of the conduct of hostilities in Ukraine. And it will likely grow more relevant as Russian forces approach heavily armed residential areas of Kyiv. Lastly, international law provides an established, widely-accepted framework – a discourse – for understanding and speaking about the conflict. This discursive aspect of the law is the focus of the following two sections.
III. Political Rhetoric
Another way in which the public engages with international law in moments of crisis is through political rhetoric. Leaders around the world have invoked legal arguments to describe Russia’s actions in Ukraine. For example, in a television appearance on 1 March 2022, the UK’s Shadow Secretary of State for Defence, John Healey, described Russia’s invasion of Ukraine as a “grave violation of international law” – a law that Putin had “promised” to obey. Healey’s comments dovetailed with the words of the Ukrainian president himself, who has consistently described the invasion as an unlawful act of aggression and called, on 28 February 2022, for the International Criminal Court to investigate war crimes perpetrated by Russian soldiers against Ukrainian civilians. This call was echoed by the UK’s Justice Secretary Dominic Raab, who pledged the UK’s support for efforts to preserve evidence of war crimes for the purposes of international criminal proceedings against Russian officials.
The international law scholar’s first instinct might be to cringe at the imprecision in political leaders’ discussions of the laws of war. But these statements demonstrate that international law takes on a political life in global crises. The language of the law enables leaders to speak of the enemy not just as barbarians and killers but as criminals and transgressors of established international standards of conduct. When invoking this lexicon, leaders not only appeal to the public’s sense of moral outrage but to a narrative in which the enemy is situated at the periphery of an international community otherwise united by its commitment to law. Thus, while international law regulates the conduct of war and legitimises certain forms of killing within that context, it is also mobilised in discourses that emphasise the sameness of our allies and the “otherness” of the enemy — discourses that are vital in generating public support for war.
IV. The Law’s Dismissal
Another aspect of this political rhetoric is that it can signal, to the public, that international law is constantly being violated. As Franck observes, most states abide by international law most of the time, but prominent violations by powerful states can create the perception that the law lacks “compliance pull.” This can, in turn, generate a general expectation that states will not abide by their international obligations, fostering an environment in which respect for international law is likely to deteriorate.
Media outlets reporting on the invasion of Ukraine have embraced this idea of international law’s lack of compliance pull. For example, an article published in the Australian news media suggests that Putin’s invasion of Ukraine occupies the legal “grey area” of humanitarian intervention. “When it comes to international law,” the article reads, “What quacks like a duck and waddles like a duck can be interpreted as a dog.” The article concludes that “international law… matters only when it suits.” Of course, humanitarian intervention is not a legal “grey zone” in the way suggested here. It is not established as an exception to the prohibition of the use of force, and were it to be accepted as such, it is most likely that a humanitarian intervention would only be considered legitimate when conducted under the auspices of the UN Security Council. Legal inaccuracies aside, the true risk of such comments is that they tell a story in which conflict can be attributed to international law’s inevitable, repeated failure. Rather than discuss the ways in which the law’s authority can be strengthened or its enforcement improved, such coverage of the conflict dismisses the law altogether, characterising it as weak and conceptually unclear.
Worse still is the characterisation of certain states and peoples as too uncivilised and unsophisticated to abide by any law. Commenting on the beginning of the Russian invasion, a US cable news anchor said, “This isn’t a place, with all due respect, like Iraq or Afghanistan that have seen conflict raging for decades. [Kyiv] is a relatively civilised, relatively European… city.” Although international law itself was not mentioned, the comments reflected a tendency to represent low- and lower-middle income countries as lawless spaces that do not comport with “our” ways of life or standards of behaviour. As Hom observed in the context of the Arab Spring, such discourses tend to place those within the developing world on an historical and narrative arc behind “us.” The spaces in which they live and fight, in which their stories unfold, are thus placed beyond the margins of what is governable by public international law.
V. Why Law?
Global crises prompt public discussion of international law, and they reveal some of the ways in which people are prone to thinking about it. The invasion of Ukraine has seen the global community of international law scholars unite to decry Russia’s military aggression, to assert the importance of respect for the laws of armed conflict, and to highlight to the public that the law is relevant and very much applies. Yet the crisis has also revealed some of the dangerous ways in which international law appears in the global public sphere: as a set of rules with limited compliance pull, as a rhetorical weapon deployed by political leaders, and as something that simply cannot help us understand or talk about the world.
Of course, one could ask why we need to talk about international law at all in situations of such moral gravity. As Koskenniemi wrote in relation to the violence inflicted by nuclear weapons:
“As international lawyers, we need to be able to say that we know that the killing of the innocent is wrong not because of whatever chains of reasoning we produce to support it, or who it was that told us so, but because of who we are” (p 510).
Perhaps, we do not need chains of legal reasoning to criticise the denial of Ukrainian sovereignty or to know that the killing of the innocent is wrong. But rationality may falter in times of war, when emotions are high and the propensity for violence strong, and legal argumentation may be all we have left. That alone is reason enough for scholars to talk about international law — and not just with one another.