Whose Police Will Come After Russian Invaders?

By JASON SIBERT

With Russia’s illegal invasion of Ukraine, the idea of world order is dissipating before our eyes.

Russia’s war — a clear violation of the United Nations’ Charter — is the most vicious ever invaded on a sovereign state since World War II, as stated by Oona Hathaway in her story “International Law Goes to War in Ukraine.” The longer the war goes on, the worse the crimes are. For instance, we’ve seen the targeting of civilians. The counterweight to this lawbreaking is the crushing sanctions by the United States, European Union, the United Kingdom, and many other countries of the world. Of course, those sanctions are a method of supporting the violation of the UN Charter, although the UN is largely helpless because Russia has veto power on the security council. The sanctions are an example of soft power (non-military) being used to enforce the idea of international law.

International law extends beyond the sanctions, as stated by Hathaway: “contemporary international law demands that states respond to violations not with war but with what Scott Shapiro and I have termed “outcasting” — that is, sanctions that exclude a state that has broken the law from the benefits of global cooperation. In this case, outcasting involves not just economic sanctions but also barring Russian athletes from participating in international sporting events, banning Russian airplanes from European and US airspace, and curtailing Russian media outlets’ access to European audiences.

Normally moribund international legal institutions have suddenly sprung to life in response to the illegal invasion. Just days into the war, the chief prosecutor at the International Criminal Court announced that he was launching an investigation into possible Russian war crimes and crimes against humanity. Ukraine has also turned to the ICC to intervene in the conflict. There are growing calls to create a special tribunal to consider whether there has been a crime of aggression. Although it’s too soon to know whether any of these efforts will succeed, the response may have the unexpected effect of reviving and reinforcing the international legal order. Indeed, Ukraine’s decision to rely on law even as Russia has relied on brute force has raised the stakes of the war. The conflict is not simply about the future of Ukraine; it is about the future of the global legal order as we know it.

On Feb. 28, just four days after the invasion began, ICC Prosecutor Karim Khan announced that he was seeking authorization to open an investigation as soon as possible. Neither Russia nor Ukraine is in the ICC. But in 2013, Ukraine legally accepted the court’s jurisdiction over alleged crimes occurring on its territory. Still, Khan said the process would be expedited if an ICC member country referred the Ukraine crisis to his office. To the ICC’s credit, it’s never been so quick to respond to a crisis. A crime of aggression can only be brought in the ICC against states that are party to the Rome Statute (which established the ICC), and Russia is not a party; there have been calls to establish a special tribunal to try Russians for waging an illegal war of aggression in Ukraine.

The International Court of Justice, a branch of the UN, automatically started proceedings after the invasion. Two days after the invasion began, Ukraine submitted an application to the ICJ, beginning proceedings against Russia. The application takes Putin’s baseless claims of genocide by Ukraine in the eastern regions of Ukraine and turns them against him. Russia, as a party to the Genocide Convention, has agreed that the ICJ is the forum at which disputed allegations of genocide may be resolved. The ICJ scheduled a hearing in March, but Russia did not show.

It must be remembered that Putin is using the same playbook in Ukraine that he used in Syria. International institutions will not be able to turn back the Russian invasion. However, they have the power to make it difficult for Russia to muddle the legal waters and keeping any remaining allies from standing by him. There’s little chance that Putin will appear in any international court, but international law remains one of Ukraine’s most powerful weapons, as stated by Hathaway. The law is helping states that agree on little else unify in opposition to the invasion, and some states have used it as a reason to deliver aid to Ukraine.

Even if Ukraine falls, the legal condemnation of Russia will create an avenue for a free Ukraine (in the future) and a world defined by law!

Jason Sibert of St. Louis is Lead Writer for the Peace Economy Project. Email jasonsibert@hotmail.com.

From The Progressive Populist, May 1, 2022

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