(Ця стаття також доступна українською мовою тут.)
On Feb. 24, 2022, the Russian invasion of Ukraine shocked Ukraine’s international lawyers, including my colleagues and myself. Since 2014, Ukraine’s public law community had made intense efforts towards strengthening, or sometimes building from scratch, the capacity of the Ukrainian justice system, which has not been prepared for the legal demands of responding to international crimes of the scale we are now witnessing. With an ever-growing interest in international law, the ongoing armed conflict in eastern Ukraine and Crimea seemed remote to many. Theorizing about armed conflicts and international law might have been a fascinating and inspiring activity, but for those who did not work on the ground in the zones of hostilities or the occupied territories, the focus was primarily on other places or times in history.
In February, things changed dramatically. The air already smelled like war several weeks, if not months, before the full-scale invasion. On Feb. 21, Russian President Vladimir Putin delivered an hourlong speech purportedly justifying his recognition of the independence of the so-called Donetsk and Luhansk People’s Republics, which sounded like a declaration of war – an antiquated custom, though one that fit perfectly with Putin’s general narrative of an empire denying its “colony” a right to exist. Putin made his (false) case crystal clear: Ukraine is a failed and fictitious state perpetrating genocide against the Russian-speaking population, which is tolerated and abetted by the West.
Signs of the times are to be read, and many international lawyers here in Ukraine felt that it was a clear sign. The forerunners had been evident for the previous eight years, during which Russian propaganda had cherished hatred and false accusations of genocide against Ukraine. Many of us felt what our predecessors felt in the years and months before September 1939, when numerous signs pointed to what would happen next: the Nazi invasion of Poland that soon dragged Europe, and the world, into war. After Putin’s speech, everyone saw it clearly: the question was not whether the Russian invasion would start, but how extensively and rapidly it would unfold.
Within three weeks, Ukraine plunged into chaos, with towns totally wiped out, cities placed under relentless siege and uninterrupted bombing, maternity hospitals and schools subjected to deadly shelling, and hundreds of civilian lives taken, including via willful killings during evacuations from besieged zones. While I am writing this piece from a relatively safe place in the West of Ukraine, which, however, came under the bombing on Mar. 11, thousands of my fellow citizens are dead, thousands more severely wounded, millions are sitting in shelters, sleeping in the underground, evacuating their families under heavy fire, or fighting for their freedom with weapons in their hands.
The war in Ukraine is not only a severe humanitarian crisis. For international lawyers, this war is an outright attack on the core values which underpin our practice. During the first days of the invasion, Ukrainian students shared a bitter joke on social media: “Will we have a public international law class tomorrow?” “It doesn’t work, stop studying it.” Another of my Ukrainian colleagues declared: “I regret every minute, hour, week, month and year of my life, which I once sincerely dedicated to international law.” Another mentioned that all the rules and conventions are “not worth the paper [they] were printed on,” adding that they cannot “practice hypocrisy.” All these people have always been an integral part of the community of international law connoisseurs in Ukraine.
To a certain extent, I can relate. Frustration of varying degrees was common to all of us, especially on the eve of the invasion and during its first days, when everyone saw the tactics becoming bloodier and more barbaric. It was not only a threat to life and health, which hurt and enraged the most, but the assault on the system of values everyone perceived as just, the one that has kept people moving at the critical moments of their careers. Similar emotions were likely felt by those who had contributed to Kellogg–Briand Pact while they watched World War II unfold before their eyes. International lawyers probably felt the same when they watched their colleagues hijacking international law to justify Adolf Hitler’s aggression in Europe – similar to what many lawyers today feel watching Russia’s scholars attempting to justify the invasion in Ukraine.
During the first days of the war, I, like many of my fellow colleagues, asked myself whether I would be able to proceed with my work as an international lawyer at all. This feeling was strengthened by the despair of people here in Ukraine, hopelessly repeating again and again that international law is too fragile to respond to one of the great humanitarian crises of the century. For the last three weeks, it seemed that Ukrainian diplomacy exhausted its maximum capacity to activate all available response mechanisms. The United Nations (UN) General Assembly adopted the resolution condemning Russian aggression with 141 votes. Proceedings regarding Russia’s bogus allegations of genocide commenced before the International Court of Justice (ICJ) on Feb. 26, with provisional measures ordered on Mar. 16 obliging Russia and those under its “control or direction” to suspend military operations in and against Ukraine. Russia, however, declared that it “cannot take this decision into account.”
Interim measures to cease attacks on civilian and other protected objects and persons were ordered by the European Court of Human Rights. The Human Rights Council established a commission of inquiry into violations committed in Ukraine. The Office of the Prosecutor of the International Criminal Court decided to proceed with an investigation of the international crimes committed in Ukraine. International lawyers and diplomats announced their initiative to establish an international tribunal on the crime of aggression. Unprecedented sanctions have been imposed on Russian and Belarusian economies and officials.
Yet, every passing hour, more and more civilian lives are taken. Constant heavy shelling continues to block vital supplies from reaching cities under siege, which pushes them to the edge of the humanitarian catastrophe. More and more civilian infrastructure is irreparably damaged. With increasing fury, the people of Ukraine continue to blame the UN, the International Committee of the Red Cross, the Organisation for Security and Cooperation in Europe and other organisations for doing too little to stop the catastrophe. International law, they say, cannot resurrect the dead, cannot heal the wounds of those traumatised or rebuild cities. It is, thus, unfortunate but unavoidable that the faith in international law is diminishing with every second.
Before the war, I finished an invaluable book by Oona A. Hathaway and Scott J. Shapiro, The Internationalists: And Their Plan to Outlaw War. Throughout the book, Hathaway and Shapiro demonstrate how individuals, everyone at their own position, fought hard to make war illegal, to prevent further global catastrophes, and to design a comprehensive mechanism for ensuring international peace. These battles were waged by statespersons, members of parliaments, international law scholars, and even ordinary corporate lawyers, such as Salmon Levinson from Chicago, described by Hathaway and Shapiro as an “unlikely revolutionary,” who spent years after World War I developing plans of a legal revolution outlawing war as an instrument of States’ policies. Yet they saw their efforts vanish as the blizzard of the new great war invaded the European continent.
But the most striking example is Hersch Lauterpacht – one of the founding fathers of modern international law, as we know him. Remarkably, Lauterpacht came from the town of Zhovkva, near Lviv in western Ukraine, which has become a large hub for those fleeing the horrors of war in the last three weeks. The Holocaust wiped out Lauterpacht’s whole family: his parents, grandparents, siblings, brother- and sister-in-law. Hathaway and Shapiro provide an account of Lauterpacht’s son, Elihu, who recalled that Lauterpacht “used to cry out awfully in his sleep at the recollection of bestialities he had heard described.” It was likely too painful for Lauterpacht to be present during testimonies at the Nuremberg trials, which is why he followed them through second-hand reports.*
But this is only a part of Hersch Lauterpacht’s legacy; he is most known for his later work as a member of the UN International Law Commission and a Judge of the ICJ, where together with many other bright minds of the epoch, he laid down the foundations of the modern international order – that very order that is under attack today. Despite his personal tragedy brought about by the Nazi atrocities, and the failure of the international legal system to save his family, Lauterpacht continued his work in defense of the values he believed in.
And that is something every international lawyer must do today. If the values are being cherished and protected in peacetime, they must be cherished and protected even more strongly at critical moments. In the opposite case, we as international lawyers must ask ourselves some of the bigger questions: what is it that we work, fight, and live for? If we abandon the faith in our principles and values today, what will be left for us after the battles are won on the ground? What is it that we will build our future idea on?
Despite all the horror and sorrow, great catastrophes sober minds up. They demonstrate that, in peacetime, people tend to have an idealistic understanding of the processes all around. Catastrophes wipe out the idealism and show that international law remains largely a self-help system, with many weak points where the system can fail (like every system does). International law has never been altruistic, almighty, or all-merciful: we used to romanticise it sitting in our safe apartments far away from Donbas, Syria, Afghanistan, Rwanda, or the Balkans. In its nature, international law has always been an inherently decentralised and consensual mechanism. But then, with despair and helplessness brought by the catastrophe comes an understanding that there is no viable alternative to the rule-based legal order, and, whether we like it or not, international law operates as it does.
When the mechanism malfunctions, we do not dismantle it and refuse to use it any further or believe in its utility. Rather, we try to find out what went wrong and why. From this understanding, we add new precautions and safety valves until it malfunctions again, and, again, and we continue the same cycle. We do not turn our backs on the healthcare system when cancer rates are high and rising, or while the COVID-19 pandemic turned our routine upside-down, taking millions of lives. Rather, we ask what we should do to mitigate factors contributing to the deadly pandemics and try to experiment until we find proper cures and vaccines. But then another deadly virus or mutation comes, and we are forced to go again, this time equipped with all the knowledge and experience we have gained to address new challenges which arose from our previous successes. Likewise, we cannot let ourselves lose our belief in all humanity and legal order because of the atrocities perpetrated by some human beings.
We can blame international law for its incapacity to prevent or stop the war in Ukraine, and we have a moral right to do that. But we face the war in Ukraine with the toolkit that was unavailable to our predecessors in 1914 and in 1939. It is only because of the solid stance of international lawyers of the previous epochs, their faith in the values they fought for, and their patience and foresight, that international law evolved far from where it was a hundred years ago.
Among all the things that history keeps teaching us, there is one optimistic lesson: we never know when the momentum for change will arrive. But when it does, we – international lawyers – must be ready to act: each of us at our own front. As Hathaway and Shapiro conclude:
The example of the Internationalists offers a hopeful message: if law shapes real power, and ideas shape the law, then we control our fate. We can choose to recognize certain actions and not others. We can cooperate with those who follow the rules and outcast those who do not. And when the rules no longer work, we can change them. The Internationalists were transformative […] because of their ideas – and because they were willing and able to use their ideas to change the world […] None [of them] found their task easy. None, moreover, was able to accomplish much on [their] own […] Each was willing to fight for years, even decades, against long odds to take small steps along the path to constructing a new global order grounded in the rejection of war […] Their example teaches us that we have opportunity and a burden. Each of us, even those far outside the halls of the government, has the capacity to make a difference. We all bear responsibility for the world in which we live.**
At this moment, hundreds of my fellow colleagues fight their own battles documenting international crimes, collecting evidence, advocating for providing relief to civilians, drafting legal positions for international litigations, advising the Ukrainian government, and strengthening its capacities to respond to the international crimes the Ukrainian people have fallen victim to. Our belief in international law might have been shaken, but it must survive despite the horrors we are currently witnessing. And the current events have to become a momentum to build up a strong community of Ukraine’s international lawyers – the ones who know the price for international law not in theory but in practice; the ones defending international law in bomb shelters, on the battlefields and in besieged cities; the ones, who draft memoranda in the evening and provide humanitarian aid to those fleeing the war.
The wars end, and there must be a central idea that will keep everyone moving further and implementing the lessons. Accountability is the central idea and motto for the next generations of international lawyers in Ukraine. And with accountability comes a historical record of what signs of the catastrophe were ignored and what lessons must be learnt. Learnt with creativity, because all major shifts in international law of the previous century were the products of creativity, motivated by the desire to understand, anticipate, and mitigate the greatest risks to humankind.
Opinions expressed in the blog are solely the author’s and do not necessarily reflect the views of the organization he works with.
* The full account can be accessed in O.A. Hathaway, S.J. Shapiro, The Internationalists: And Their Plan to Outlaw War (Penguin UK, 2017) pp. 298-299.
** Full text available in O.A. Hathaway, S.J. Shapiro, The Internationalists: And Their Plan to Outlaw War (Penguin UK, 2017), p. 423.