13 Dec Cold Comforters and Hot Law: What International Lawyers are Getting Wrong About the Ukraine Conflict
[John D. Haskell is a Senior Lecturer at the University of Manchester Law School and Junior Faculty at the Harvard Law School Institute for Global Law and Policy.]
“I [find] myself in a spiral of uneasiness … [S]omething in the authors’ tone of voice, in their self-positioning [is] disturbing… I am troubled by the initial pairing of the notions of democratic government and undemocratic opposition…”
These reservations were made by the Finnish diplomat and renowned international law scholar Martti Koskenniemi about the direction of international law and its reigning sensibility in the early 21st century. He spoke as part of a diverse coalition of legal scholars and practitioners who challenged the weaponization of democracy as a tool of Western foreign policy and the justifications for the ‘war on terrorism’. Since then, the warning that international law often serves as handmaiden to great power politics seemed to have come in from the cold to become professional common sense: there are dark sides to our virtue and this requires self-reflective professional vigilance.
This legal sensibility appears to be melting in the wake of the conflict in Ukraine. The emerging trend is to again return to bright line defences of democratic legal values against what are characterized as external threats from authoritarian states. While a scattered thread of literature attempts to situate Russia’s invasion against the backdrop of other postcolonial legacies in international law, the majority of voices in the English speaking world of international law are more-or-less united in viewing the conflict in uncomplicated moral terms (such as good versus evil, legal versus illegal, peace-loving nations versus Russian aggression). In this essay, I want to try to better understand this attitude and to highlight how it actually betrays the promise of international law and why this matters.
The dominant narrative is striking in its use of moralising rhetoric, legal formalism and universalist pretensions. “Our resolve in preserving the rule of law has never been stronger,” reads the recent statement issued by the leadership of the European Society of International Law (ESIL), “The decision of President Putin… is criminal” and the Russian regime “has no shame, governs by fear, and indulges in lies and propaganda.” The famous British international legal jurist Philippe Sands agrees:
“Putin’s decision to launch attacks on Ukraine poses the gravest challenge to the post-1945 international order, one premised on the idea of a rule of law and principles of self-determination for all peoples and the prohibition on the use of force.”
The United States National Security Strategy report issued in October 2022 echoes these sentiments: “We are in the midst of a strategic competition to shape the future of the international order” between “democracy” and “autocracy.” It is in this professional climate that the former President of the European University Institute, Josep Borrell, can feel safe to say things like Europe is a “garden” with a “duty” to tend “the jungle” and European politicians can feel comfortable implementing ‘emergency measures’ (that bypass constitutional limitations established after World War 2) to mobilize European militarization abroad. International lawyers are contributing to the rattle of sabres.
A significant camp within the international law community currently dismisses any hesitation toward Western escalation as objectively bad faith. “To contend that other States – especially in the West – have no better track record when it comes to respecting international law,” writes the leadership of ESIL, “is a morally corrupt and irrelevant distraction” and in any event, “offers no legal justification for the aggression that has been unleashed.” This language is reminiscent of the rhetoric by partisan politicians and legal experts in Cold War America to justify foreign occupation. For example, if we take Richard Falk’s description of the justifications given for the US military in Vietnam and substitute the word ‘American’ with ‘the West’ and the phrase ‘in Vietnam’ with ‘in Ukraine’, they are almost identical with today.
“Those who support the role of the [West] in [Ukraine] often emphasize the absence of any selfish [Western] interests in [Ukraine]. We want no territory or foreign bases, and we have no economic holdings or ambitions… [only] selfless promotion of moral and legal principles.”
International lawyers again claim a disinterested commitment to universal moral values and legal rectitude that affords no room for difference.
More moderate positions accept some ambivalence toward the conflict. “It is easy to blame NATO, and especially the United States, for their hypocrisy about the use of military force,” write the lead editors of the American Journal of International Law. “We both are highly critical… [of them for] routinely push[ing]… and violat[ing] the UN Charter prohibition on the use of force and in other ways interfer[ring] with the political independence of other states.” After voicing scepticism, however, the authors pivot to argue that unlike the current Russian invasion, the war in Iraq was premised on a UN Security Council Resolution and thereby had at least the “pretext” of legal consensus while Kosovo activity was necessary because the UN Security Council would not act and the international legal community felt the need to “avert an ongoing humanitarian crisis.” Beyond the strangely inconsistent logic of these distinctions shoulder to shoulder, the AJIL editors are silent to any number of facts that might make the conflict in Ukraine look less exceptional in nature. A non-exhaustive list of forgotten events where borders are flexible and politics is militarised: the Korean War, the Vietnam War, the invasion of Afghanistan, the systematic air-bound warfare targeting the Arab speaking world in Libya and Syria, the continued formal annexation of territory in the Israeli/Palestine conflict, the jurisdictional creep of NATO and Western interests into post-Soviet spaces… All this historical context is whitewashed from the current professional conversation.
In particular, the West’s role in the current conflict is strikingly omitted from the mainline international law narratives, though it is all-to-real and readily available. “Traditionally passive in its politics,” writes the Guardian’s former lead European editor, Ian Trayner, Ukraine “will never be the same again” due to the catalyst of “democracy guerrillas… funded and organized by the US government” with an operation of “engineering democracy through the ballot box and civil disobedience” that is now “so slick… a template for winning other people’s elections.” This template was rolled out in Serbia, Georgia, and Belarus around the same time that NATO would incorporate the Western frontiers of Russia, first in 1999 with Central European states, then in 2004 with Baltic states, and most recently, in the overtures to integrate Georgia and Ukraine. In addition, there is credible suggestion of US and UK activist, intelligence, and military support in the 2014 Ukrainian coup. The prevailing narrative timeline in international law is highly scripted and the assignment of legal responsibility closely managed so as to (wittingly or unwittingly) not incorporate these inconvenient facts.
This selective storytelling may be less cultural or political bias and instead more due to the inbuilt constraints of legal formalism. However, while this formalism affords a comfortable vocabulary for the profession to frame the fog of war in ready analytical boxes, its conceptual simplicity comes at a high price. When we limit the “life of international law” to the “structure of textual forms welcomed before the ICJ” we miss important “realities outside the courtroom”. The current legal perspectives end up muting crucial dynamics, such as the business clans, political parties, and militarised groups that shape the politics of Ukraine and that are embedded in complicated ties to global power arrangements. This formal legalism also does not account for the last two decades of socio-economic collapse in Ukraine and the corresponding lack of meaningful Western-backed monetary aid. And rarely do legal evaluations link the conflict to the heavily contested energy agreements over the last few years between American and Germany. In short, the mainstream chorus of legal formalism obfuscates the political economy of global governance, downplays Western contribution to the build-up of hostilities, and misses the opportunity to actually engage the complicated realities on the ground.
None of this is to play the role of legal cynic nor Russian apologist. The point here is that whatever the obligations of politicians, the role of international lawyers – or at least international law scholars – is to consider inconvenient truths and provide fearless counsel: at once non-partisan and non-neutral. We are tasked to catch the ways in which our best laid designs of governance recreate generational sin and feed the conditions of crisis that we seek to confront (e.g., authoritarian politics, ecological decay, economic inequality, nuclear escalation). We might remember, especially when thinking about the legacy of Western/Russian relations, that ‘the Other’ is always part of the fabric of the most intimate versions of ourselves. In my mind, it would be more pragmatic management and more ethically congruent with our stated commitments if we would step back from this dominant impulse to courtly moralism and geopolitical competition. It is exactly in these sort of moments that the resistance to military escalation is most needed. If not, at the very least, it is difficult to imagine an outcome that does not entail the absolute levelling of Ukrainian infrastructure to downgrade its geopolitical strategic importance. Meanwhile, the weapons keep flowing to seed the violence of our collective futures.