International Law: Fit for purpose in a post-Bucha world?

In February 2022, Russia invaded Ukraine, opening the possibility of dragging Europe back into a world of redrawing borders via conquest. While international legal systems exist to challenge this, it remains questionable whether actors such as Putin will ever actually see justice. In this piece, Eamon Driscoll examines whether international law is still fit for purpose in a post Ukraine-invasion world.

The concept of international law has existed for centuries, even millennia, before the Westphalian model of nationhood came about. One of the earliest examples emerged after the Battle of Qadesh between Egyptian and Hittite forces circa 1259 BC, showing that at least on some level, even then “nations” understood that it was in their best interests to be at peace with their neighbors and cooperate with them in some way for mutual benefit. The Romans developed the concept of ius gentium, literally the “law of nations”, which included familiar concepts such as not massacring a surrendered population. After the Roman Empire fell, the fragmented European community looked to Justinian’s code of law and the Catholic Church to regulate and moderate their international relations.

It was Hugo Grotius, a Dutchman, who developed the foundation of what we now call international law. Rather than looking to a higher “natural law”, he was inspired by mankind’s common reason, and based his ideas of law on rational principles. His 1625 work, De iure belli ac pacis, On the Law of War and Peace, was the basis for the emerging sense of maintaining international peace through international laws. The Peace of Westphalia drew on Grotius’s work, and other philosophers such as Immanuel Kant and Emer de Vattel influenced the concept as well until the first international organization was formed, the League of Nations. This failed, and in 1945 the United Nations Charter was issued and signed, and despite the threat of a war that would lead to the extinction of humanity, the UN has played a stabilizing role in limiting conflicts and ensuring peace around the world. No system of international law is perfect, but the UN is the closest we have come so far.

As an aside, it should be said that this is the Western European influence. The Greeks, Chinese, and others saw their homelands as the only civilized nation surrounded by barbarians, which is not the best perspective to start from when attempting to interact with other nations as equals. Yet this co-equal perspective did not extend to the native populations in colonized areas that did not have a Westphalian sense of nationhood or the Christian religion.

The United Nations Charter, signed in June 1945 after Germany surrendered and as the war in the Pacific was coming to an explosive close, starts by stating the very purpose and intention of the organization: “to maintain international peace and security.” This lofty goal is very similar in its ambition to another which utterly failed and continues to be ridiculed: the Paris Peace Pact of 1928, known more commonly as the Kellogg-Briand Pact. This agreement failed spectacularly, but it introduced the concept of war as something that should be resolutely avoided.

Article 1 The Purposes of the United Nations are: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and To be a centre for harmonizing the actions of nations in the attainment of these common ends.

The problem arises, then, when one power no longer recognizes these international norms as having authority. When a world leader such as Vladimir Putin decides that international law is about as meaningful as the pirate code from Pirates of the Caribbean (more a set of guidelines), and feels that his chances of ending up in a cold cell on the North Sea coast are about as likely as being marooned on a deserted atoll by his one-time shipmates, the whole system gets thrown into disarray. This is, of course, not the first time such has happened. At its core, that is what brought the League of Nations crumbling down at the onset of the Second World War. And while international law does have its arbiters, mediators, and even a full court and prison system, everything that happens in the UN in New York City and at the International Criminal Court in The Hague remains subject to the occasionally capricious whims of ambitious men.

The warning signs were there, for sure. In summer 2020, Russians voted in a quasi-referendum on whether or not the authority of the Russian Constitution should be above those of international courts and treaties. In hindsight, it does not take a great leap of reason to connect the dots and suggest that at that point the groundwork was being laid for the invasion of Ukraine on the fabricated casus belli of de-Nazification. Meanwhile, Article 2 of the UN Charter states very clearly that disputes should be resolved peacefully and that members should refrain from using force against the territorial integrity or independence of another state. And yet, we now have a permanent member of the UN Security Council, blatantly tearing apart the very basic fabric of our current system of international law, and certainly Beijing is watching very closely to see what it can get away with as well.

Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 2. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 3. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 4. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 5. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 6. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

We have been fortunate to live in a stable and peaceful era, likely the most stable and most peaceful in all of human existence. Though the Cold War is still not so distant, the Second World War is rapidly fading out of living memory, and aside from some proxy wars, most people, certainly most Western people, have spent their lives in relative peace. So too has Vladimir Putin, even if the world around him has not. He may have survived an alleged assassination attempt in March, but the nature of his inner circle could easily be such that every single person in it wants to dispose of their protector, but every single person is also afraid and unwilling to voice their thoughts, lest they be voiced to the wrong person.

Thus it is probable that Putin will live his life to its own end, whether by cancer, Parkinson’s, or simply old age, comfortably secure in some palatial estate along the Black Sea Coast, rather than that Dutch cell. Some have called for a new version of the Nuremberg trials, perhaps unaware that that will require a Third World War and a NATO capture of Moscow. Without that, any trial would be for appearances only, while the guilty party is free and unfettered behind nuclear weapons. Yet there must be something, for war crimes are most certainly being committed. Rape. Destruction of cultural heritage. Mass murder. Genocide. For the second time in a lifetime, genocide is occuring in Europe. It happens elsewhere, of course. But the facts that it is Russia, that it is an invasion of a sovereign nation, and that it is so culturally and geographically close to home, are at least part of why I counted more Ukrainian flags than American ones on a recent visit to Massachusetts, and not a single kökbayraq. I’ll let you google that one; I certainly had to.

Even more problematic, aside from the war crimes, is that this can end with the invasion having a fully legal conclusion with borders redrawn. Right by conquest was the norm for centuries, and while it is all but outlawed now, a peace treaty between Russia and Ukraine would be a fully sanctioned end to the conflict, albeit with the risk of opening the door to opportunistic states elsewhere that will see that the ends do indeed justify the means. Thus when Ukrainian President Zelensky refuses to acquiesce to Russia and formally cede Crimea, the Donbas, and potentially more, he is defending not only Ukrainian territorial integrity, but also that of Taiwan, the states of the South China Sea, and any other country present and future which may have its territory eyed enviously by a neighbor. Zelensky may also, ironically, be defending Russia’s interests if Beijing ever gets tired of supporting Russia, hungrier for natural resources, and starts fabricating evidence of anti-Chinese hostility of its citizens in Siberia.

No matter how this invasion ends, the sheer fact that it has happened marks a significant upheaval in the system that has been the foundation of world peace for the last 70 years. It never was perfect, and may well have been too ambitious in its aims, but history marches on. Ultimately, international law operates in the same way that currencies or Santa Claus do. It functions when everyone believes, but when the façade starts to crumble, and the foundation weakens, then the whole edifice may be about to collapse. But it continues to stand, and has withstood the era when two ideologically-opposed superpowers pointed weapons of planetary extinction at each other, and this fact alone gives hope and promise for a better and more peaceful tomorrow.

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Eamon Driscoll is a graduate of the University of Illinois and postgraduate of Geopolitics, Territory and Security at King’s College, London. Eamon focuses on issues in Russia and the wider Commonwealth of Independent States, which has furnished him with extensive experience on the topic of breakaway states. His current academic focus is on the Russian enclave of Kaliningrad and how its unique position has forced the region to develop differently from other Russian territories, especially in the shadow of the ongoing crisis in Ukraine.

Cover Image: Kharkiv Regional State Administration