The limits of international law in the war in Ukraine

If Russian President Vladimir Putin is shaking in his boots this week, it’s because the United States and its allies are giving shoulder-mounted anti-tank and anti-aircraft missiles to the Ukrainians. It is not because lawyers in The Hague, Netherlands, have opened cases against him and his actions before two international courts.

Thirty-nine nations that belong to the International Criminal Court have asked the ICC’s chief prosecutor to investigate the situation in Ukraine, and the prosecutor has “already found a reasonable basis to believe crimes within the jurisdiction of the court had been committed.” The ICC has jurisdiction over individuals, not countries, for four crimes defined in the Rome Treaty of 1998: “genocide, crimes against humanity, war crimes, and the crime of aggression.”

Though at first glance it would appear several of these principles are implicated, it will be difficult under the ICC’s own rules to show that Putin is personally responsible for any war crimes committed by his armed forces, and a charge for the crime of aggression depends on a United Nations Security Council referral that Russia would certainly veto.

Separately, Ukraine has filed a petition with the International Court of Justice, the judicial body of the United Nations. The so-called “world court” held a hearing last week on Ukraine’s emergency application alleging violations of the UN’s convention against genocide. Ukraine alleges that Russia’s pretext for war violates the convention, which experts recognize is a stretch in order to argue for coverage under the court’s jurisdiction. To no surprise, Russia was a no-show at the hearing.

For Americans generally (and to conservatives specifically), the sad saga of the application of international law to Ukraine’s situation is a reminder of three fundamental realities that underline the inadequacy of what is called international law.

First, international law is generally limited by the text of existing rules (treaties) and institutions. Historically, “the law of nations” was more amorphous, reflecting a universal moral or natural law that applied to nations (think of C.S. Lewis’ the Tao but for countries). The Nuremberg trials following World War II were an important pivot point from this generalized law to a specific, text-based approach to international criminal law. The Allies adopted the London Agreement of 1945, defining particular war crimes in advance of the trials.

Subsequently, in the modern era of the United Nations, international law is primarily a voluntary law of statutes and treaties. There are exceptions: The international criminal tribunals for war crimes in the former Yugoslavia and Rwanda reflected an after-the-fact application of universal moral law. Some scholars have called for a similar war crimes tribunal for Ukraine. The prospect remains unlikely.

Similarly, the International Court of Justice can only enforce treaties with enforcement provisions. Even if, as Tom Dannenbaum, assistant professor of international law at the Fletcher School of Law and Diplomacy, noted, “Russia’s aggressive war against Ukraine is one of the clearest violations of article 2(4) of the United Nations Charter since its entry into force,” the ICJ lacks the power to punish Russia as a state.

Second, international courts are ill-equipped to handle the fast pace of international events like war. International courts are useful tools for deciding disputes between nations over issues like airspace restrictions or sovereignty over some rocks in the Singapore Straits. And they can collect evidence and assess guilt after a war. But they are not designed to make a difference during an active conflict. It is hard to see the effect of filing legal briefs, holding hearings, and writing an opinion granting an injunction while rockets fall on civilians.

Third and finally, though international legal judgments may carry moral power, international law is only meaningful when soft power is backed up by hard power. The German and Japanese trials worked because the Allies won and took custody of senior officials, whom they could then call before the bar of justice. It is hard to imagine top Russian officials wearing orange jumpsuits in a jail cell in The Hague, even if they lose the war.

In reality, international courts possess limited jurisdiction and, sadly, are often morally compromised. What Ukraine needs right now is military and moral support. Vladimir Putin and his tanks are not going to be stopped by the action of any international tribunal, and the rockets hitting civilian areas of Kyiv are not going to be stopped by any court’s injunction. International law is not meaningless, but aggressor nations are not going to be deterred by the threat of legal action. They are only deterred by force.