March 09 2022

Russian misuse of international law is final nail in coffin of post WW2 order

Dr Elvira Domínguez-Redondo, an Associate Professor of International Law, argues the global system to prevent nuclear war is no longer fit for purpose

The intensity of the global response to the Russian attack on Ukraine has been met by some with scepticism. They view it as a manifestation of Western exceptionalism when the consequences of illegal uses of force have a direct impact on their territory. However, the express Russian threat of escalating the conflict through nuclear weapons is indeed exceptional.

Since these weapons were created, their potential for mutual assured destruction has underpinned international relations  though their destructive capability has not been explicitly articulated as a threat against other States in decades (on this threat see Lewis). Beyond the weapons, the danger posed by potential attacks to nuclear plants has also taken centre stage after the Russian military attacked an administrative building linked to a nuclear power plant in Zaporizhzhia on 4 March 2022 (see Dielnet).

The distortion of arguments based on international law and the position of those making them have, in my opinion, completed the destruction of a system no longer suitable to prevent global armed conflict. This is not – or not only – an intrinsic flaw in the system’s design, but the inevitable by-product of intentional actions carried out by those who ought to have been most interested in preserving it.

Role of Rhetoric in the Russian aggression

International law has been referenced by Russia in justifying its invasion of Ukraine. Russia has advanced every possible exception to the prohibition of the use of force in different disguises including invitation, self-defence, and humanitarian intervention (Sayapin’s summary here).

The weakness of the legal claims are reflected in the general rejection they have deservedly received.[1] Still, the Russian attempt to provide legal grounds to its actions is remarkable, going as far as recognising two new ‘states’ for the purpose of presenting the invasion as a consent-based ‘peace operation’.[2] Russia also declared that sanctions used against its economy as countermeasures are akin go an act of war, reviving legal arguments that equate use of armed force to coercive means of enforcing international law. [3]

The swift engagement and prompt response of the European Court of Human Rights, the International Court of Justice and the International Criminal Court is remarkable and a revealing testimony of the centrality of international law in the means used to address the conflict [4].

Beyond repair – (another) wake up call to replace the system

The United Nations was established in 1945 with the primary objective of protecting future generations from the scourge of war. This mission relied on two pillars: stopping the use of armed force, and creating a Security Council with unique responsibility for maintaining global peace and security. Russia (then the Soviet Union), China, the United Kingdom, France and the United States have since occupied a privileged position with permanent seats and veto powers. In practice this means that outside the confines of self-defence, the use of armed force is only legal if the States most likely to provoke a third world war are in agreement. In other words, the system is based on granting extraordinary powers to a few countries that would, in exchange, act as guardians of international peace and security.

What is often referred to as ‘paralysis’ has been the cornerstone of a system designed to prevent a third world war. As I have explained elsewhere (here and here), the legitimacy of the Security Council has been irreversibly undermined by previous illegal uses of force in Kosovo, Syria and Iraq by other permanent members of the Security Council (mainly the USA and the UK, but also France). States’ attempts to address the Russia/Ukraine conflict through dispute settlement mechanisms, with an emphasis on legal arguments manifested in an exceptionally prolific use of international courts, consolidates the strength of legal rules involved in this scenario.

However, unanimous condemnations of Russia contained in emerging decisions derived from applying standard frameworks are unlikely to stop the war. This conflict will likely end at a negotiation table, potentially with a peace agreement, hopefully in the short-term, to prevent further suffering, loss of life and weapons induced accelerated planetary destruction. The strength of the rule prohibiting the use of force is likely to rise and States that have progressively broadened the scope of exceptions to legitimise their lethal enterprises may reconsider their positions. This is not the case for the system established to monitor and guarantee compliance with the rules through the United Nations Security Council.

The destruction of the pillars on which the collective security system was built in 1945 has been completed by those who benefited most from it and who were in charge of preserving its worth as an effective mechanism to prevent a global armed conflict and total annihilation.

End of the Security Council

Whatever the outcome, it is hardly conceivable that the weakened legitimacy of the Security Council can survive this final blow in neither its current nor reformed form. Those in power will seek to in articulate and enforce rules maintaining the status quo of their privileged position. Because it requires legitimacy to be acceptable to the majority away from power, law also embeds some form of public morality and fairness.

We are at a crossroad: while the prominence of the international legal order in times of crisis has been evident, it is not possible to save the system designed to prevent and/or stop a global war only by rewriting it (as suggested by Johns and Kotova). Paraphrasing Castellino, the logic leading to the obliteration of this system has highlighted how outdated its premises are. This underscores the imperative urgent need for a radically new approach to international relations, perhaps beyond the political organisation of the state and the conception of a ‘nation’ underpinning it.

“Have confidence, have certainty that the spiritual energy of the people will prevail, the non-violent spiritual energy of people against tanks, against guns, against dictatorships, against armies, against the police, will prevail.” Colin Gonsalves.

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[1] Gurmendi has compiled other States’ reactions to weakness of Russia’s legal claims here

[2] For a commentary linking the current attack and annexation of Crimea, see Roscini

[3] On reviving legal arguments that equate use of armed force to coercive means of enforcing international law see Mulder in his book Economic Weapon, Yale University Press, March 2022)

[4] Pecorella summarises the role of international law here; for the ICC prosecutions see Coleman, and Wheeler; as well as Schabas  comments on genocide and war crimes)

For a list of recent short commentaries on international law implications related to the Russian invasion of Ukraine, see Odermatt here.

Photo by Ahmed Zalabany on Unsplash

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Tags: EU, Europe, government, human rights, law, Ukraine, Ukraine Crisis