When he addressed the World Economic Forum in Davos, Switzerland on Jan. 20, Canadian Prime Minister Mark Carney said, “It seems that every day we are reminded that we live in an era of great power rivalry. That the rules-based order is fading.” His speech echoed a growing concern of many international lawyers: what should be done when powerful States undermine the international rule of law?
The contemporary challenges to the international rule of law are considerable. Tariffs are levied to create political leverage. Targeted sanctions are threatening the independence of international judges, such as the International Criminal Court’s Kimberly Prost and Luz del Carmen Ibáñez Carranza. Withdrawals from many United Nations organizations and other international bodies are compromising the ability of States to resolve disputes peacefully and engage in transnational cooperation, as is the undermining of dispute resolution forums like the World Trade Organization. And actions such as Russia’s invasion of Ukraine, the U.S. invasion of Venezuela and abduction of its head of state Nicolas Maduro, and the U.S. and Israel’s attacks against Iran imperil the foundational prohibition on the use of force.
In a year when violations like these seem to occur with increasing frequency and seeming indifference, and after a week in which the International Court of Justice celebrated the 80th anniversary of its inaugural session, I have been reflecting on the place of memory in upholding the international rule of law. More specifically, I have been wondering about the role international lawyers play in ensuring that the norms underpinning the rules-based international order are not forgotten.
The international rule of law draws inspiration from the domestic rule of law, applying its principles to relations between States and other international law subjects. The independence of domestic court judges becomes the independence of the judges of international tribunals. The equality of individuals before the law becomes the equality of States before the law. But the international rule of law also has distinct features, including fundamental principles that are meant to be unbreakable. These strict norms buttress the rules-based order, acting as guardrails for the system as a whole. The prohibition on the use of force, for instance — described as “a cornerstone of the United Nations Charter” — bars States from using force (or even threatening to use force) in their international relations.
So how can memory help preserve the international rule of law? In other words, amidst flagrant violations of international law, how does memory enable international lawyers to “stand tall for the rule of law”?
Memory can be understood as a chronicle of past events and experiences, and it can be drawn upon to guide future actions. Integral to decision-making, memory uses recollections of what has already transpired to better understand the present and predict what is to come. As such, memory is neither simply about the past nor merely passive. But more so, and beyond decision-making, memory is also core to a person’s identity, and the continuity of that identity.
Ways of Remembering
Lawyers and judges have often served as shepherds of memory. Marshalling evidence before courts and tribunals brings the memories of past conduct into focus. Trial transcripts, rules on document retention, and court records create archives of memory. Even writing pleadings and reasons based on precedent can be understood as acts of remembering the law as it has been. The lawyer, observed American jurist Benjamin Cardozo, “must be historian and prophet all in one — the qualities of each united in a perfect blend.”
The role that memory plays in the practice of law is of course selective. Lawyers and judges are in the profession of choosing certain facts and, in some instances, disregarding others. Still, lawyers have a unique role to play in preserving memory alongside historians, storytellers, and archivists. And, insofar as memory can serve the preservation of the international rule of law, international lawyers have distinct means of occupying this role.
One way is through the remembering and memorialization of facts. As Robert Storey, the executive trial counsel of the U.S. prosecution team at the International Military Tribunal at Nuremberg noted,
The purpose of the Nuremberg trial was not merely, or even principally, to convict the leaders of Nazi Germany … Of far greater importance, it seemed to me from the outset, was the making of a record of the Hitler regime which would withstand the test of history.
Those involved in international prosecutions thus have recognized their critical role in preserving memory. Other international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, have regarded themselves as developing “indisputable historical records, which combat denial and help communities come to terms with their recent history.” Fact-finding commissions, and commissions of inquiry can similarly create evidence and archives that last far longer than time-bound litigation.
Preserving facts in the service of the international rule of law is not limited to formal processes. International lawyers have, over time, taken informal and even audacious actions to safeguard memory. Rafael Lemkin, the Polish lawyer famous for coining the term genocide, for instance, left Europe in the midst of World War II with luggage full of “literally thousands of pages of decrees” from the Nazis in occupied Europe. These decrees provided not only a record of Nazi atrocities against Jewish and Romani peoples, but also a detailed account of how law was instrumentalized “with the aim of annihilating the groups themselves.” International lawyers can thus safeguard facts toward the preservation of the international rule of law in both open courtrooms and closed carry-ons.
Another means is through the remembering of laws. Eyal Benvenisti notes that even as a new age of empire looms, lawyers can “preserve the law as it stands, awaiting a time when the global order can be restored.” Referencing the unlawful annexation of the Baltic States by the Soviet Union, Benvenisti notes how these States were able to regain their sovereignty 50 years later. Remembering the law as it is in such circumstances ensures that the powerful cannot re-write the illegality of past actions.
Lawyers can ensure that laws are not forgotten in a number of ways. Some of these are direct. Lund University’s Faculty of Law, for instance, has been working to establish a Museum of International Law. Curating objects, artifacts, and stories, the museum aims to “communicate how international law affects the lives of ordinary human beings around the world.” But, more often, remembering takes place in the everyday actions of international lawyers.
For instance, calling out violations — or naming and shaming — while commonly employed to pressure States to comply with the law, can also be an action of recalling and preserving the international rule of law. Here, the American Society of International Law (ASIL) has been a role model of what it means to preserve the memory of international law. ASIL’s criticism of the U.S. government’s attacks on Venezuela and Iran serves as a strong reminder that these actions are violations of the international rule of law (irrespective of any purported political expediency). There is a long tradition of such acts of remembering. In anticipation of the use of force in Iraq in 2003, for instance, some of the U.K.’s most prominent international lawyers wrote an op-ed in the Guardian on the illegality of prospective military action. Railing against the Prime Minister’s argument that “unreasonable” U.N. Security Council vetoes could be disregarded, these lawyers reminded the public of the relationship between the use of force and the veto regime by recalling the 32 times that the U.K. had used the veto since 1945.
Teaching international law is another significant means of preserving the international rule of law. Teaching involves passing down shared stories, cases, and treaties. Moreover, teaching preserves memory of the processes of international legal reasoning and practice, including fact-finding, analysis, and adjudication. The way international law is taught is hardly universal, with different cases, authorities, and conclusions emphasized in different countries. Still, teaching international law differently does greater service to the memory of the international rule of law than not teaching it at all. Similarly, moot court competitions such as the Jessup, Charles-Rousseau, and Jean-Pictet are forums of remembering key cases, conveying shared stories, and ultimately transmitting an identity of international law to the next generation of lawyers.
For government lawyers, the mere act of providing justification for violations can be an important act of remembering. As the International Court of Justice expressed in the Nicaragua Case,
If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.
In essence, a State trying to justify illegitimate actions by pointing to rules of international law neither erases the facts of that illegitimacy nor undermines the law which prohibits it. Instead, it is a performance which plays a part in remembering, and ultimately upholding, the rule.
It is easy to view such justifications cynically. When Russia invaded Ukraine in February 2022, for instance, it espoused a litany of international law justifications for what was quite clearly a war of aggression. And there are, of course, deep-seated risks associated with such performances of the law. Indeed, Carney’s speech made this critique in relation to equality before the law (or rather, what he suggested was the myth of equality before the law). Drawing on an essay by playwright and former Czech President Václav Havel, Carney invoked the story of a greengrocer in Soviet Russia placing a sign in his window each morning which read “Workers of the world, unite.” As Carney continued, the “system’s power comes not from its truth but from everyone’s willingness to perform as if it were true.” The performance of international law can thus serve as a smokescreen, obscuring underlying inequalities and injustices.
But we live in a historical moment when even the act of justifying violations is being abandoned, and there is a risk that in giving up the performance, the international rule of law is forgotten as well. In its official statement to the U.N. Security Council regarding its intervention in Venezuela, for instance, the United States did not provide any international law justification. In trying to justify its war in Iran, the United States has offered a confused, contradictory, and rapidly shifting set of reasons, none of them firmly grounded in international law. Ultimately, by failing to appeal to international law justifications or exceptions, even superficially, the United States is contributing to the law’s decline.
Havel was, of course, one of many Czech dissidents grappling with the scourge of Soviet totalitarianism. These were authors, playwrights, and poets working to preserve meaning in the face of a new, and oppressive normal. Another was Milan Kundera. In his novel, The Book of Laughter and Forgetting, Kundera considers the place of memory in preserving meaning. He writes, “The struggle of man against power is the struggle of memory against forgetting.” As violations of international law become the new normal, and great powers cease adhering to the law, Kundera’s words help frame today’s struggle to protect the international rule of law: a struggle of memory against forgetting.
