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On Critique and Renewal in Times of Crisis

Reflections on International Law(yers) and Putin’s War on Ukraine

16.03.2022

Many of us are struggling to absorb the news coming out of Ukraine. Putin’s reckless and unjustified invasion has already generated significant loss of life, millions of refugees, and nuclear instability. Moments of crisis inevitably trigger periods of heightened anxiety, as affected communities try to make sense of the situation and attempt to figure out how to respond. The invasion of Ukraine is a crisis that has triggered processes of collective sensemaking that stretch across the world.

How do international lawyers seek to make sense of crisis situations? As Hilary Charlesworth famously observed, international lawyers often find ourselves drawn to moments of crisis, marshalling our energies towards mobilising the vocabulary and institutions of international law in an effort not only to make sense of such situations, but also to identify concrete paths for halting, mitigating, and addressing the unfolding violence.

Narratives often provide the storylines through which international lawyers communicate what or who is to blame for a particular crisis and the steps that should be taken in response. Importantly, as Anthea Roberts and Nicholas Lamp have observed, ‘Narratives are stories we tell ourselves to make sense of the world, but they are also stories we tell others to influence their understanding of the world’. Different narratives highlight specific characters, interests, and solutions, framing situations and deploying metaphors in ways that foreground particular ways of seeing at the expense of others.

One narrative that has emerged in recent weeks has sought to connect the fate of Ukraine with that of the so-called ‘rules-based international order’. According to this narrative, the gravity and brazenness of Russia’s violation of the prohibition on the use of force elaborated in Article 2(4) of the UN Charter symbolises the demise of the international order more generally.

International lawyers have responded to this perspective with at least three counter-narratives, each offering specific correctives to claims that the time has come to write the obituary of the rules-based international order. No single counter-narrative is dominant, and none can provide the full picture; rather, we suggest, there is value in viewing these narratives in their multiplicity, each permitting us to gain specific insights into the relationship between international law and the crisis in Ukraine. In this post, we reflect on these counter-narratives and also add our own – one that stresses the importance of harnessing moments of crisis to ask critical questions about the rules-based international order, even as we grapple to alleviate the most immediate forms of violence on the ground.

Three Counter-Narratives to the Demise of the Rules-based International Order

One response to the purported demise of the rules-based international order has been to caution that extrapolating the demise from Putin’s invasion makes a fundamental mistake about how law functions. International law, like domestic law, has never been perfectly adhered to or enforced in practice. As Oona Hathaway and Scott Shapiro have observed, when domestic law is undermined, it is rare for an entire domestic legal system to be called into question – one may query, therefore, why it should be any different for international law. Moreover, to focus on Putin’s decision to violate the law is to neglect the near-unified response of other States in condemning the invasion. Particularly notable in this regard has been the passing of a resolution by the UN General Assembly, which ‘deplores in the strongest terms the aggression by the Russian Federation in violation of Article 2(4) of the Charter’ – with 141 States in favour, 35 abstentions, and only 5 against. These words have also been matched with various forms of action, including the deployment of sanctions against Russia. Here, the principal character is the international community responding to the aggressor State – and the image to emerge from this narrative is one of a robust international order, which may yet emerge stronger from the current crisis depending on how the rest of the world continues to react to it.

A second response has been to caution that to exceptionalize the invasion of Ukraine is to neglect the ways in which Great Powers have long sought to neglect legal restrictions on the use of force as a political tool. As Nico Krisch has explained, ‘in a string of contested military interventions in recent decades – from Kosovo to Iraq, Libya and Syria – Western powers have shunned principled and institutional constraints and instead used argumentative openness to create space to pursue their aims’. While these prior military campaigns neither morally nor legally provide any justification or legitimacy for Putin’s war, they reveal an important point about how international law functions in practice. As Krisch notes, ‘in a decentralized order such as international law, the weight of the law is eroded if powerful actors treat it cavalierly’. Here, the principal characters are the Great Powers and the image to emerge from this narrative is one of a bifurcated international order, one in which some powers openly ignore rules that all others are expected to obey. From this perspective, rather than the demise of the rules-based international order, the current crisis reflects the latest episode in the ongoing erosion of the prohibition on the use of force for certain powerful actors – a trend that may be situated in a climate where Western hegemony seems to be giving way to a multipolar world.

A third response has been to expand our frame of thinking beyond the prohibition on the use of force in an effort to surface the myriad other ways in which the rules-based international order is implicated in the crisis in Ukraine. Fleur Johns and Anastasiya Kotova, for example, have revealed how resistance to Russia’s aggression is being shaped in significant respects by the international order’s datafication (enabling tailored and personalised sanctions, as well as the rallying of hacker networks), financialization (directing attention to, for example, the international standards underpinning the Society for Worldwide Interbank Financial Telecommunications (SWIFT) system), and decentralisation (with leading social media platforms, for example, being called upon to address Russian disinformation). Here, the principal characters include a far broader array of public and private actors interacting in a diversity of online and offline settings. The image to emerge from this narrative is of a complex and multifaceted international order, one in which authority and law are, as Johns and Kotova put it, ‘mediated by money, memes and megabytes’. From this perspective, rather than the demise of the rules-based international order, we appear to be witnessing its operationalisation.

Building on these different narratives, we also believe that to talk of the demise of the rules-based international order is erroneous – because it is very much alive, its sophisticated rules being applied and further developed in diverse international institutions, with cumulated immaterial and material capital and tens of thousands of professional actors, as well as regional and national counterparts. At the international level, for example, significant energy and resources are being harnessed at the United Nations, the International Atomic Energy Association, the International Court of Justice, the International Criminal Court, and the International Committee for the Red Cross, to name just a few. In a diversity of contexts, then, international law and its institutional practices are at work, both absorbing and distributing resources, and exercising political power vested in them. Moreover, as tends to be the case during crisis situations such as the war in Ukraine, international law and its practices are very much entering a period in the limelight – even if only for a few weeks or months – channelling global media attention, compassion, and efforts to help.

Imaging International Law as a Pool of Public Services

Much in here may sound as if we were describing a pool of public services, intended to serve all members of a community equally and in their best interests. We would suggest taking the image of international law as a pool of public services at face value, for a moment, to advance our narrative. The image is supported by the fact that when international law operates – producing its (arguably meagre) outcomes in crisis situations – this often happens on tax-payers money channelled from state budgets. International law’s rules-based order, seen as a basis for public services, can no longer be reduced to unitary sets of big ideas somewhere in between politics and day-dreams. Nor is it an old lamp, the spirit of which can, when called upon in crisis, present us with immediate miracles.

International law as a rules-based order is alive and busy, we claim, but that does not mean it is doing well in providing ‘public services’. There are important deficiencies that we are not the first ones to point out. Its services tragically lack in predictability, continuity, and equality. There is far too little stability in what is provided and for whom, and no predictability of the resources on which international law tries to deliver. There is no systematic control of quality, cost-effectiveness, and accountability. There is also a considerable lack of transparency.

From this perspective, the impulse international lawyers have to evoke international law and its institutions as capable of helping innocent people losing their lives in Ukraine risks falling back to the fantasy of the omnipotent spirit of the lamp. As many critical voices have pointed out in recent days, international law seems to expand or diminish on a barometer of compassion. As before, referring to international law in crisis situations is likely to create expectations of political and socio-economic outcomes that seldom materialise as expected by those directly concerned. The promises by the representatives of such poorly directed, randomly controlled, and sporadically funded public services should therefore be kept under constant ‘reality check’.

Critiquing the Rules-Based International Order in Times of Crisis

One of the dominant impulses of international lawyers in response to the events in Ukraine has been to ‘leave no stone unturned’ in bringing to an end the violence currently unfolding. Others have also pointed to the importance of prioritising ‘short-term’ thinking given the current circumstances on the ground, in particular by attempting ‘to identify pressure points, on international and domestic levels, for compelling Russia to stop the unfolding horror’. We share these instincts, but also believe that the affects arising from the harrowing reports and visual materials of suffering should not diminish our willingness to raise critical and fundamental questions – questions that probe the impact of particular proposals based not only on their near-term symbolic and instrumental effects, but also their longer-term, structural implications.

The Method is the Message: Questioning the Creation of a Special Tribunal to Punish the Crime of Aggression Against Ukraine

In some instances, critical questioning may lead to the conclusion that, absent significant restructuring, certain initiatives are best set aside. For instance, we share Kevin Jon Heller’s concerns about the proposal to establish a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine. Beyond the technical and practical difficulties of establishing such a tribunal, it is the longer-term expressive costs that such a tribunal would send about the selectivity of international criminal justice that are most concerning. Accountability is important and, like Heller, we share the aim of holding Russian political and military leaders to account. However, we also believe that accountability efforts will always struggle to be truly credible and just when instrumentalised and pursued in ways that serve more to exacerbate than challenge existing inequalities and hierarchies within the international order.

Absent accompanying mobilisation to universalise the enforcement of the crime of aggression beyond the current crisis, the creation of a Special Tribunal by a collective of states that includes those that invaded Iraq with impunity and undermined the crime of aggression at the International Criminal Court (by restricting the jurisdictional conditions that must be satisfied for its prosecution) would lack legitimacy and send the message that only select crimes of aggression are of concern to the international community. As Wayne Jordash has put it, ‘International justice needs less selectivity and partiality, not more, and if we want to see Putin and his men in the dock, let’s focus on what processes we have and support what already exists’.

More generally, as policymakers turn their gaze towards the institutions of international criminal justice in their efforts to respond to Putin’s aggression, they would do well to remember that the glow that once accompanied the field has very much faded in recent decades as the gap between the over-exuberant aspirations invested in international criminal courts and what they have been able to achieve in practice has become ever wider. Operating under the cover of an idealised global community, international criminal courts have been structurally unable to transcend the inequalities of the actually existing international order. The delivery of solemn promises made in the name of international criminal justice has often been sporadic, partial, slow, and costly – ill-suited to local needs and expectations. The (in)famous justice of the criminal courtroom is always retroactive. Victims and their communities are often led to believe that more is at stake than the public condemnation and punishment of the accused.  And even if reparations are, at times, accorded, there are seldom financial means available to enforce the decisions at the level which corresponds to expectations and needs, such as the rebuilding of economic and social infrastructure.

Harnessing Legal Enthusiasm: From Refugee Crises to Global Migration Law

In other instances, critical questioning should lead, not to initiatives being discarded, but to greater reflexivity amongst policy-makers about the selectivity that particular schemes exemplify. For instance, the EU’s unprecedented activation of the EU Temporary Protection Directive has enabled generous protection for those fleeing violence in Ukraine. Yet, while this initiative is very much to be welcomed and supported, this should not preclude the scheme becoming a focal point for critically reflecting on the disparities that exist between different temporary protection schemes or the structural deficiencies of international refugee law more generally. As Niamh Keady-Tabbal has observed, ‘The political will that we see to expand and extend protection and rights to certain displaced people is taking place while pushbacks, illegal expulsions and border violence is going on elsewhere in the EU’.

Here, then, the question is how the legal enthusiasm exemplified in the Ukraine crisis might be harnessed to empower oppressed peoples in other situations across the world – communities that continue to suffer, whether as a result of ongoing military conflicts or as a consequence of the hierarchical relations of domination in the economic, social and political spheres that continue to characterise the rules-based international order. A particularly useful frame for this conversation has been advanced by Tendayi Achiume in the form of reconceiving the contemporary movement of certain migrants across international borders as decolonization. As Achiume explains, ‘the migration as decolonization thesis foregrounds the political agency of migrants, and presents neocolonial interconnection and subordination as the baseline from which the ethics of immigration restrictions should be assessed, and from which these restrictions should be negotiated’.

Expanding the Frame: Supplementing Reactive International Law with a Preventive Mindset

Finally, critical questioning may also help direct attention towards the ways in which the rules-based international order has helped shape some of the conditions of possibility for particular dimensions of the Ukraine crisis – ranging from maintaining fossil fuel dependent economies at the expense of renewable ones, to neglecting transnational kleptocracy, money laundering and corruption. As Anne Orford observed some twenty-five years ago, it is important to guard against focusing narrowly on norms of international law that are reactive to security crises. Such a limited frame of thinking risks focusing attention narrowly on questions of whether, when, and how new forms of intervention should take place, at the expense of considering the ways in which international law has already been profoundly intervening in shaping the structure of social, economic and political life within and across states embroiled in a given crisis situation.

To return to where we began, in her paper on international law and crisis, Hilary Charlesworth concludes by advocating for ‘an international law of everyday life’, one that enlarges its inquiries beyond crises towards addressing forms of structural violence such as the billions of people living without access to basic sanitation and who are chronically malnourished. Reflecting on Charlesworth’s concerns, we would suggest that an everyday conception of international law requires international lawyers not only to marshal the vocabulary and institutions of international law in an effort to alleviate the everyday misery of those currently suffering from Putin’s war on Ukraine, but also to shift gear from repetitive crisis-management towards the prevention of crises and from expressivism by criminal retribution to distributing messages of steady everyday construction. Such preventive rationality and dynamic action to avoid the worst is urgently required, in particular, with regard to the global climate crisis.

Towards Renewal

In our narrative, therefore, the principal characters are not the international lawyers ourselves but the states and people that decide, fund, control and use the public services. From this perspective, rather than turning inwards, deploring the demise of our ideas of a rules-based international order, we should be devoting our energies outwards, towards producing renewal:  taking the courage to re-imagine the post-WWII international order, rather than resigning to a bricolage of ad hoc solutions that may alleviate the consequences of its flaws in times of crisis. The renewal should strive to address the deep and divisive hierarchies and biases of the existing order and build a more transparent, reliable and equitable governance. Nothing quick, new or spectacular. Just loads of arduous legal work in a demanding and often violent political environment. Utopia, perhaps, but potentially more promising than rubbing the old lamp.

Authors
Barrie Sander

Barrie Sander is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. He holds a PhD in International Law from the Graduate Institute of International and Development Studies, which was recently published with Oxford University Press as Doing Justice to History: Confronting the Past in International Criminal Courts. His research interests include international criminal law, international human rights law, and issues at the intersection of digital technology and international law.

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Immi Tallgren

Immi Tallgren is an Adjunct Professor of International Law at the University of Helsinki and a Senior Researcher funded by the KONE Foundation at the Erik Castrén Institute of International Law and Human Rights. She is Visiting Fellow at the Centre for Women, Peace and Security at the London School of Economics.

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