Dead Right: Welcome to the Rule of Guns and Lawyers

[Nikolas M. Rajkovic is Chair of International Law at Tilburg University (The Netherlands). He is a Fernand Braudel Senior Fellow at the Law Department of the European University Institute (Italy).]

NATO and EU leaders present Russia’s aggression against Ukraine as a storied conflict between geopolitical power and a “rules-based order.”  In the hours that followed the invasion, EU Commission President, Ursula Von der Leyen declared: “War has returned to Europe…This is a clash between the rule of law and the rule of the gun…between a rules-based order and a world of naked aggression.”  

Rousing metaphors are the adrenalin of leadership, yet metaphors mislead by nature. The lamentable truth is the “rules-based order” has always been the rule of guns and lawyers. The extreme and inhuman consequences of that pathology on tragic display in Ukraine today. The systemic implications alarming: great power practices have degraded security norms of the UN Charter to a point of instrumental relevance. International order sits at a dangerous juncture, stoked by chronic militarism and instrumental legalism. How did Europe and the wider international order reach such peril?

We start with apt advice from an acclaimed colleague and international lawyer, Martti Koskenniemi: “Words are politics.” Over the past 5 years, one observes how the word “rules-based order” has subtly displaced the term “international law”. Even critically-minded international lawyers have become entangled in that language. Yet, the observed drift is not semantic trivia: Imagine national leaders starting to refer to your legal system as a “rules-based order”? Consider the meaning of the UN Charter as simply a bundle of rules within a “rules-based order”? Ponder how a “rules-based” narrative gently marginalizes the relevance of jus ad bellum? 

Law is certainly comprised of rules, but not all rules have the quality or performance of law. Moreover, key differences exist between and among laws as well. Whenever those distinctions become confused, a dangerous dynamic emerges where everyone claims to be legal and it’s harder to project authority and declare illegality with social force. Such a legal quagmire is precisely where the “rules-based order”—as international law—is right now. Further worrying: it seems few international lawyers have noticed that hazardous slide. 

These assertions may surprise some, and seem counter-intuitive for many. International lawyers are highly active at the moment. Russia’s aggression confronted by several “rules-based” counter-offensives: the UN General Assembly has condemned Russia’s aggression against Ukraine; Ukraine has asked the International Court of Justice to declare Russia as manipulating the notion of genocide to legalize its attack; and the chief Prosecutor of International Criminal Court collects evidence of alleged war crimes in Ukraine.

All that legal activity masks a deeper institutional and structural crisis for international law. Recent commentaries blame Russia’s or China’s overuse of veto powers at the Security Council. Yet, no UN Charter would have been agreed to without veto powers. The rise of veto outrage likely mixes symptom with cause, failing to grasp the ways instrumental legalism has corroded the rules of international peace and security over recent decades.

A better way to comprehend this crisis is via legal failures seemingly beyond public international law: i.e. the Panama Papers, the Credit Suisse Leaks. Few appreciate how tax evasion and international law evasion share similar cultures of client-driven legalism, and the label of a “rules-based order” appears tolerant of those “loop-hole” cultures and their monied patrons. Such blindness derives from siloed expertise: for too long public international law, private international law, and international relations have been taught and practiced in—splendid—isolation. The consequence is bunkered experts speaking past one other (e.g. on Twitter), often more concerned about proving the truth of their linear concepts, theories, or narratives. The fallout is expertise that fails to convey how international crises are crises because a gamut of stubborn problems have collided simultaneously and violently, testing the depth and breadth of our knowledges, practical wisdom, and decision-making.

The language of a “rules-based order” is a stellar case of linguistic tragedy compounding institutional calamity. A key normative difference between a “rules-based order” versus international law proper is the former privileges lawyering and client service. Accordingly, the legal arts are used to make disputable conduct appear “in compliance” with public norms and rules. However, as most litigators will tell you, seeking “compliance” with the rules is not always the same as following the law in full letter, purpose, and spirit.

For instance, at the Security Council recently, the US Ambassador denounced Russia for using cluster munitions in Ukraine. Yet, the US has used cluster bombs in the past, and has refused to join the Convention on Cluster Munitions. The language of “a rules-based order”—and its reverence of “compliance”—helps buffer that legal hypocrisy. Public opinion is further blinded to the hustle since the “rules-based order” is bundled habitually with a powerful but simplistic narrative: the rule of law is the “rule of no one.” Yet, in fact, the “rules-based order” has always come with this fine-print: well-lawyered elites decide where and when law’s rule applies or is dispensable.

In 1999, US Secretary of State, Madeleine Albright, became an exemplar of that fine-print, and the potency of great power lawyering. When told by UK Foreign Secretary Robin Cook that military intervention in Kosovo required a UN Security Council resolution, Albright responded by saying Cook should “get new lawyers.” That advice became revolutionary. NATO provided a lawyered justification for its military intervention in Yugoslavia. The pivotal sentence in NATO’s press release of 23 March 1999: “NATO has fully supported all relevant UN Security Council resolutions, the efforts of the OSCE, and those of the Contact Group.” There was no hint of required Security Council authorization, and the sentence papered over General Assembly resolution 3314 (1974) which had defined and categorized the Crime of Aggression as customary international law.

The “get new lawyers” doctrine triggered a toxic practice among the great powers, where international violence could gain trappings of “legality” without Security Council authorization. Over the past 23 years, international violence has lived in a twilight zone of legality and illegality, with unilateral interventions “legitimized” by great powers via sacral allegations such as preventing terrorism, genocide, or weapons of mass destruction.

What ensued has been an alarming degradation of UN Charter norms, and collective security in general. Since 1999, the United States has committed 3 major international attacks without Security Council authorization: Yugoslavia, Iraq and Syria; and Russia has done the same, and even worse, in at least 3 cases: Georgia, Crimea/Donbas, and now—most brutally—in Ukraine as a whole. This list excludes a litany of everyday “self-defence” strikes undertaken by the great powers.

In sum, President Von der Leyen’s metaphors are very inspiring, but stretched: the “rules-based order” remains a rule of great power guns and lawyers. That historic complicity, in some part, behind Ukraine’s real-time demolition by Russia. Announcing the Ukraine invasion, Vladimir Putin admitted he was driving that great power practice now to its most cynical and horrifying extreme.

War has returned to Europe: Russia invades and occupies Ukraine with impunity, while great power legalism inches all Europeans toward the glory of being dead right. The language of a “rules-based order” hides deep misconceptions about the use and abuse of law in this century. Unless that is made explicit by lawyers, international order will descend further into rule, war, and extinction through law.