THE ROLE OF INTERNATIONAL LAW IN THE RUSSIA-UKRAINE WAR.

• Author: Kelly, Michael J.

TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION II. COLLECTIVE SECURITY & PUTIN'S "PLAYBOOK" III. INTERNATIONAL SECURITY ASSURANCES IV. UKRAINE'S LEGAL COUNTER-ATTACK A. The International Court of Justice B. The International Criminal Court V. UKRAINIAN CASES AGAINST RUSSIA IN OTHER TRIBUNALS VI. CONCLUSION AND THE PROMISE OF INTERNATIONAL LAW APPENDIX I. INTRODUCTION

International law ends where realpolitik begins. Acknowledging this inescapable maxim, drawn from a consent-based system of compliance, is the best antidote to fanciful notions of how international law can solve the world's problems in general or the Russia-Ukraine War in particular. Yet to legally examine this particular conflict, one is stuck by the contrasting outcomes in two international law subfields. In the area of jus ad bellum, or the law of going to war (not to be confused with jus in hello, or the law of waging war), collective security has been an abject failure. However, in the area of international judicial process, Ukraine's ability to mount a credible, and winning, legal counterattack against Russia in multiple judicial fora has so far been a great success.

We begin with a foundational observation: The entire international system of States is based upon Westphalian notions of sovereign equality, border inviolability, territorial integrity, political independence, and autonomy. (1) Although such notions have been challenged or at least qualified in prior situations--notably the American approach to the second war in Iraq, (2) they remain enshrined in the U.N. Charter and therefore binding upon all member states. (3) Russia violated each of these Westphalian norms purposefully and explicitly in its invasion of Ukraine.

2. COLLECTIVE SECURITY & PUTIN'S "PLAYBOOK"

   Collective security arrangements implicated by the invasion of Ukraine are of three types: (1) the global, derived from the U.N. Charter, (4) (2) the regional, derived from the North Atlantic Charter, (5) and (3) the specific, derived from the Budapest Memorandum. (6) None of the three could forestall Moscow's armies from deploying into Ukrainian territory. (7) On February 24, 2022, Russian military divisions that had been encircling Ukraine for months crossed the border and began a multi-pronged invasion from the North, East, and South, displacing upwards of one third of the population, (8) and sparking the largest refugee crisis since the Second World War, with approximately seven million Ukrainians fleeing the country. (9)

   Before we consider weaknesses inherent in the collective security constellation of the jus ad bellum firmament, however, we should reflect upon the historical legal frameworks that Putin co-opted in his attempt characterize the Russian invasion as legal. Moscow's highly orchestrated international legal pirouette leading up to its invasion of Ukraine, worthy of at least a matinee with the Bolshoi, looks very familiar:

   (1) Denial that Ukraine was even a real country prior to Russia's recognition of it,

   (2) Recognition of new independent States dominated by Russian-speaking inhabitants emerging from Ukrainian territory,

   (3) Allegation of atrocities committed upon those Russian-speaking people by Ukrainian forces,

   (4) Requests for military assistance by the governments of these newly recognized states, and

   (5) Deployment of Russian forces in response to those requests. (11)

   This same sequence unfolded in 2014 and was followed by two more steps: Crimea's request to join the Russian federation, and its annexation. (12) Ultimately the same ending will likely play out with Ukraine's Donetsk and Luhansk regions. (13) Even so, Russia painting its aggressive invasion of Ukraine as, instead, a reactive and defensive operation, (14) and thereby in compliance with international law, fooled about as many international legal experts as the United States painting its invasion of Iraq in 2003 as anticipatory self-defense and therefore legal. (15)

   Much has been made about this seven-sequence "playbook" Putin is relying upon for legal justification. (16) Entirely appropriate analogies have been drawn to Germany's absorption of Czechoslovakia's Sudetenland in 1938, ostensibly to protect German-speaking people being abused by the Czech government. (17) To be sure, this would be like Mexico invading southwestern counties in Texas to protect Spanish-speakers living there from abuses by Texan state authorities--absurd on its face. But these parts of the playbook are actually quite older than that, and we should be clear-eyed about who wrote them.

   It traces at least as far back as the late-19th Century era of colonialism, when the United States slow-rolled its annexation of the Kingdom of Hawaii, allegedly to protect Americans. (18) Despite evidence to the contrary, (19) the United States denied Hawaii's existence as a State prior to our recognition of it in 1842, opening the door to U.S. sugar interests consolidating this trade. (20) By the 1890s enough Americans had moved to the islands, taking over key economic sectors, that the monarchy's power became significantly diluted.

   Eventually, local Americans formed a Committee of Safety that deposed Queen Lili' uokalani and requested the United States land a force to protect them from alleged abuses--which it did, in the form of a detachment of Marines from the U.S.S. Boston. (21) The monarchy was abolished, and a new American-led Hawaiian Republic was formed in 1894 under President Sanford Dole and, after much-prolonged political maneuvering in Washington, gained recognition. (22) Annexation then followed in 1898 with Dole continuing as territorial governor. (23)

   A century later, the United States largely disavowed its own conduct in the takeover of Hawaii in a 1993 congressional resolution signed by the U.S. president apologizing for its actions "with the participation of agents and citizens of the United States" and recognizing the sovereignty of native Hawaiians. (24) While legally disavowing a troubling piece of international practice further weakens the illegal overthrow's legitimacy, it seems there is no erasing it from the international relations playbook.

   Future global implications are inescapable. For example, there is little doubt that President Xi is thumbing through this playbook now with respect to Taiwan, keenly watching both the West's response to Russia's invasion of Ukraine and protests within Russia. How both dynamics play out will surely factor into any move by China against Taiwan--home to foundries that produce over 50% of the world's semi-conductors. (25) Xi would not want to botch the incorporation of Taiwan as Mao botched China's annexation of Tibet in 1959. (26) Much as Putin styled invading Ukraine as freeing that country of a drug-addicted government of neo-Nazis, China styled its invasion of Tibet as liberating the Tibetan people from a backward theocratic feudal system. (27) However, Chinese forces failed to capture the Dalai Lama, who set up a government in exile south of the Himalayas, remaining a significant thorn in China's side by successfully keeping the international spotlight on the plight of Tibet for over 60 years. (28)

   Putin understands history, which is why his initial plan was to circle Kyiv and capture Ukrainian president Zelensky, who has proven just as adept at marshaling international public support in the cause of Ukraine as the Dalai Lama has in the cause for Tibet. (29) Structural weaknesses in Russia's military forces, together with poor equipment design and upkeep and surprisingly strong Ukrainian resistance, have conspired however to prevent this part of Putin's plan coming to fruition. (30) Consequently, absent an improbable breakthrough by either side, a diplomatic coup, or the equally unlikely overthrow of Putin from within Russia, both sides appear to be settling in for a long fight. (31)

3. INTERNATIONAL SECURITY ASSURANCES

   The security-based pieces of international law fall around this conflict like so much recently dusted up ash from Chernobyl's nuclear cemetery by Russian tanks. (32) They also lead to equally unsatisfactory applications. The architecture of the post-World War II global collective security apparatus, ostensibly an improvement on the failed League of Nations, only works when the major powers on the U.N.'s Security Council want it to work. In fact, the two times on either side of the Cold War where it actually worked--the Korean War and the first Iraq War--were situations characterized by both Russia and China not exercising their veto powers. (33)

   In the first instance, the Chinese seat was contested between the Republic of China and the People's Republic, and the Soviet seat was vacant in protest when the vote to activate Article 42 powers to protect South Korea was taken. (34) The Soviets notably never missed another meeting after this. (35) In the second instance, the USSR was in its final days, with Gorbachev desperately working with the West to remain in power and the Chinese in the throes of Deng Xioping's western investment strategy to reorient their economy into a market-based enterprise; (36) thus, neither Russia nor China were disposed to oppose Britain, France, and the U.S. on the liberation of Kuwait.

   Today, in the case of Ukraine, that architecture has been hijacked by one of the five permanent members to pursue an aggressive war. The U.N. Charter's Security Council is frozen from action by Russia's veto--the structural Achilles' heel that dooms global collective security from ever realizing its full promise. (37) It is of course, a cruel irony that Russia chairs the Security Council as it invades a member state. (38) The veto-wielding permanent membership problem has plagued the UNSC from properly executing its collective security function for decades.

   Indeed, the latter half of the twenty-first century brought example after example of UNSC stalemate, with the resurrection of old habits such as permanent members protecting...