Russian war of aggression in Ukraine: Is inter­na­tional law losing its import­ance?

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Russia's war of aggression on Ukraine, which violates international law, has fueled long-simmering skepticism about the value of international law. What does it say about a legal system if it cannot prevent power and violence from taking root?

With regard to the Russian war of aggression, the Berlin political scientist Herfried Münkler states the failure of the "project of universal values and norms" in a phase of the "return of classical power politics. The Hamburg constitutional law expert Karl-Heinz Ladeur calls the war an "alarm signal for the dominance of disorder", which co-determines the "(international) law[...] of ambiguity". 

Have the long-dominant narratives of progress in international law thus reached their end? In the 1960s, Wolfgang Friedmann, who taught at Columbia University, had identified the emergence of a “law of cooperation” in the face of the growing competences of international organizations, which had taken its place alongside the older “law of coexistence”. Since the 1990s, in particular parts of German-speaking international law scholarship had been committed to the thesis of the “constitutionalization of international law”, since human rights and the rule of law were gaining in importance in international law and the international legal order seemed to be moving closer to the normative model of constitutional states.

UN Security Council without a Hand?

The response of United Nations bodies to Russia's war of aggression can be seen as an indicator of where international law stands. The United Nations Charter places primary responsibility for maintaining international peace and security in the hands of the Security Council. After the end of the Cold War, the system of peacekeeping seemed to prove its worth. The Security Council empowered United Nations member states to take sanctions measures of unprecedented density and scope. The Iraqi annexation of Kuwait in 1990, in particular, was followed by a massive response. For example, the Security Council demanded an immediate and unconditional withdrawal of Iraqi forces and imposed an economic, financial, and arms embargo. Finally, by a vote of twelve to three, the Security Council authorized United Nations member states to take "all necessary measures," including military ones. Only Yemen and Cuba voted against, and China abstained. Based on this resolution, a coalition of states led by the United States liberated Kuwait. The Security Council had effectively opposed the violation of the ban on the use of force.

In contrast, after the Russian invasion of Ukraine, a Security Council resolution calling for the withdrawal of Russian troops failed. Eleven of the 15 Security Council members supported the resolution, while China, India, and the United Arab Emirates abstained. Russia exercised its right of veto as a permanent member. It was not until three months after the war began that the Security Council adopted a resolution expressing only "strong support for the Secretary-General's efforts in seeking a peaceful solution." Instead, a group of largely Western states imposed far-reaching economic sanctions on Russian companies and individuals. The Security Council does not appear to be living up to its primary responsibility to maintain world peace.

However, it is inherent in the charter, with the veto power of the five permanent members, that Security Council sanctions against permanent members are difficult to impose. Other violations of the ban on the use of force, such as the U.S.- and U.K.-led war against Iraq in 2003 or the Russian annexation of Crimea in 2014, have also not been sanctioned by the Security Council. Moreover, in the face of a blocked Security Council, other United Nations bodies may become all the more important. In the context of negotiating the grain agreement between Russia and Ukraine, which resolved the blockade of Ukrainian ports (at least initially), the UN Secretary-General acted as a mediator alongside Turkey. Although this may appear to be only a minor contribution to conflict resolution, it is difficult to imagine a pacification of the Russia-Ukraine conflict without the involvement of the organs of the United Nations.

Are 141 votes a lot or a little?

In addition to the Security Council, the General Assembly has also addressed the Ukraine conflict. A March 2022 (non-binding) resolution condemned the attack and called for the immediate withdrawal of Russian troops by 141 votes to five, with 35 abstentions. It was striking that geopolitical heavyweights China, India and South Africa abstained, although the violation of the ban on the use of force could hardly be more obvious. Are these abstentions an expression of diminishing respect for the ban on the use of force?

A look at Cold War history shows that while majorities can be organized against a veto power, abstentions and dissenting votes are to be expected. For example, the resolution condemning the Soviet invasion of Afghanistan in 1979 was adopted by 104 votes to 18 with 18 abstentions. The U.S. invasion of Grenada in 1983 was condemned by 108 states, with nine votes against and 27 abstentions. In 2022, too, the lack of unanimity in the General Assembly can probably be explained more by the foreign policy weight of the veto power Russia than by any failure to respect the ban on the use of force. Moreover, it is noteworthy that the resolution condemning Russia's 2014 annexation of Crimea received only 100 votes in favor (with 11 against and 58 abstentions). 41 states in addition felt compelled to clearly criticize the violation of the ban on the use of force after the February 24, 2022 attack. Accordingly, the General Assembly resolution on the Ukraine conflict represents a strong signal from the international community and cannot serve as an argument for a loss of meaning of international law.

Decision of the International Court of Justice without effect?

The events of February 24 have also been referred to the International Court of Justice (ICJ). Since neither Russia nor Ukraine had recognized its jurisdiction on an ad hoc or general basis, Ukraine could not bring the issue of the violation of the prohibition of the use of force before the ICJ. However, the basis for its jurisdiction could be the Genocide Convention ratified by Russia and Ukraine. The ICJ has jurisdiction over disputes between contracting parties on the interpretation, application, and fulfillment of the Convention. Ukraine requested the issuance of provisional measures, arguing that Russia had misused the Convention as a justification for the war of aggression. This was because Vladimir Putin had justified the "special military operation" on the grounds of genocide committed by Ukraine in Luhansk and Donetsk.

On March 16, the ICJ ordered Russia to immediately cease all military actions on Ukraine's territory by a vote of 13 to two (only the Chinese judge and the Russian judge did not support the decision). In the provisional measures proceeding, it was sufficient for the Court to note that the ICJ was not in possession of evidence supporting the allegation of genocide committed on Ukrainian territory. According to the Court, it was also doubtful whether the Convention permitted the unilateral use of force by a Party in the territory of another State to prevent or punish an alleged genocide. Ukraine had thus plausibly demonstrated its right under the Convention not to be confronted with a false allegation of genocide used to justify a military operation against it.

Admittedly, Russia, which had already stayed away from the proceedings, did not comply with the ICJ's issued order. The war in Ukraine rages on. Nevertheless, the significance of the decision should not be underestimated. The UN's main judicial body has determined that Russia is obligated to end the "special operation." Even though the outcome of the main proceedings is still open, the reasoning suggests that the justification for the invasion under international law - insofar as it relies on the allegation of a committed genocide - is on dubious ground. This is important: because legal evaluations of the ICJ have a central importance for the development of international law also beyond the dispute. The ICJ's decisions are seen as having great authoritative force.

Between Crisis and Resilience

The Russian war of aggression poses major challenges to the United Nations. One certainly cannot expect a contribution to the constitutionalization of international law from the Security Council, which is deadlocked on many issues. The General Assembly cannot guarantee international stability to the same extent. Nevertheless, recent developments also show that a clear majority of states are not prepared to accept a war of aggression by a permanent member of the Security Council, and the main judicial body of the United Nations has determined that Russia must end its military operation. Russia's war of aggression is being firmly countered not only by decentralized sanctions but also at the UN level. There is no reason for a swan song to international law.

PD Dr. Felix Lange, LL.M. (NYU), M.A. is a research fellow in the KFG "The International Rule of Law - Rise or Decline?". In the winter semester 2022/2023, he will act as a Lehrstuhlvertreter at the professorship for Public Law, in particular European and International Law as well as European Business Law and International Business Law at the University of Potsdam.