Since Russia’s invasion of Ukraine in February of 2022, many have questioned the enduring capacity of international law to govern both future resort to armed force, jus ad bellum, and the conduct of states during future uses of force, jus in bello. Among other things, those claiming that jus in bello, in particular, is dead letter point for support to Russia’s numerous violations, including indiscriminate killings, torture, sexual violence, and attacks on civilian objects. Predictions that a future conflict between great powers will be particularly violent, protracted, and inconclusive further reinforce for some the notion that future authoritarian aggressors will dispense with jus in bello and, instead, take a Clausewitzian Kriegsraison approach to conflict. This presents significant challenges for those who counsel operators, analysts, and policymakers in the military, intelligence, or national security communities.
The character of war has changed and the future of warfare will be further revolutionized as the U.S. military continues to develop and integrate emerging technologies like artificial intelligence, synthetic biology, and advanced manufacturing. This naturally raises questions about how adversaries might use these same technologies and comport themselves on the battlefields of tomorrow. As relevant here, that includes calls for legal practitioners to make forecasts about whether future adversaries will comply with international law.
Undoubtedly, Russia’s invasion of Ukraine was a gross violation of jus ad bellum. Moreover, Russia’s jus in bello violations during the conflict have been well-documented. It is therefore easy to understand why some observers deduce from this that, in the future, the United States will face adversaries that will not adhere to international law. However, Russia’s justifications for its actions, as well as international support for Ukraine and condemnation of Russia, show the enduring power of international law and the importance of protecting the rules-based international order from attempts to bend law to the will of authoritarianism.
Jus ad Bellum and Jus in Bello Are Alive and…Well…
One need not ignore or minimize Russia’s non-compliance to appreciate the enduring value of jus ad bellum and jus in bello. With respect to jus in bello, aside from the paramount principles of humanity it advances, jus in bello continues to serve as a means by which states establish and maintain legitimacy. As a doctrinal principle, the U.S. government has recognized legitimacy as a potentially decisive factor that embodies the actual and perceived legal, ethical, and moral authority with which military forces are judged to conduct their operations. From an international perspective, legitimacy manifests itself as a derivative of jus in bello compliance that fosters coalitions and foreign partnerships.
Thus, beyond helping to ensure that a force’s actions are, fundamentally, morally just, adherence to jus in bello is a source of both national and international strategic power. Indeed, as much as Russian abuses during the Russia-Ukraine conflict seem to signal to some that jus in bello is a relic of a bygone day, the international community’s response to them forcefully suggests otherwise. Even more, certain Russian actions likewise evidence a similar understanding.
With respect to jus ad bellum, consider, for example, Russian President Vladimir Putin’s claim at the outset of the full-scale invasion in 2022 that, as a matter of self-defense, Russia was commencing a “special military action” purportedly aimed at protecting ethnic Russians in the eastern regions of Ukraine from alleged genocide. While untethered from fact, this attempt by Russia to justify its attack, flimsy though it was, nevertheless reflected a recognition that, except in cases of self-defense or authorization by the United Nations Security Council, international law prohibits the use of force against other states. Over the course of the conflict, Russia’s rationale for its actions has continued to evolve, eventually including claims that the intervention was necessary for Russia to defend itself (against purportedly aggressive actions linked to NATO expansion). Again, although such claims were absurd as a legal justification for the invasion, the fact that Russia felt compelled to offer them is reflective of the lasting power of international law.
More significantly, the international community’s response to Russia’s abuses has plainly shown the continuing vitality of international law. As legal scholar Oona Hathaway has observed, a key test of the effectiveness of law is whether its violators face consequences for their abusive behavior. On that score, Russia has faced remarkable costs. First, while the United Nations Security Council has been significantly hamstrung by Russia’s status as a permanent member of the body, the U.N. General Assembly nonetheless passed a resolution by a vote of 141-5 in March of 2022 condemning Russia’s invasion. Although critics might argue that the resolution amounted to no more than toothless symbolism, in fact, it arguably paved the way for later, more meaningful, actions. Russia has faced unparalleled international sanctions for its aggression in Ukraine, ranging from economic sanctions, to suspension of Russian media broadcast activities, to its removal from international bodies through which it could otherwise exert global influence.
With respect to facing consequences for jus in bello violations, in particular, the International Criminal Court also took the extraordinary step of issuing an arrest warrant for Putin, based on Russia’s unlawful deportation and transfer from Ukraine of Ukrainian children. While such a response is understandably unsatisfying to those who wish to see Putin immediately hauled to The Hague, it nevertheless serves important functions. Among them are deterring other Russians still engaged in the conflict from committing additional war crimes; further isolating Russia, insofar as it makes Putin’s international travel difficult; and signaling to those who would seek, in the future, to emulate Russia’s aggression and jus in bello violations that the international community will pursue accountability at all levels when such violations occur.
Perhaps the most important demonstration of the strength of international law to arise from the Russia-Ukraine conflict can be seen through the lens of the international community’s overwhelming support for Ukraine in the form of military aid. On this front, it is worth contemplating why Ukraine has received such full-throated support. Undoubtedly, there are a multitude of reasons, varying across states, including bare pursuit of self-interest. Primarily, though, the international community’s response is grounded in the fact that Russia is legally wrong and Ukraine is legally right. That is, in supporting Ukraine, the international community is heralding both that Russia has upset the international order by violating Ukraine’s sovereignty and engaging in other illegal conduct and, also, that such illegal acts will not be tolerated.
To be sure, even in sum, the international community’s response has not yet yielded the hoped for end of conflict. Moreover, the war may have shown that certain tools, including sanctions, could have somewhat limited efficacy in an autocracy like Russia (though even that is subject to heated debate). What is clear, however, is that for all the ways in which the Russia-Ukraine conflict appears to indicate that international law lacks continuing force, the international response has, in fact, inspiringly proven its potency in responding to pariah states like Russia.
Bending, Not Breaking, the Rules
What predictions can be made about whether future authoritarian aggressors will comply with jus ad bellum and jus in bello? In many ways, the international community’s response to the Russia-Ukraine conflict can be seen as the continuation of an effort by the United States and its allies after World War II to develop a rules-based international order to promote peace, security, and cooperation. While not inevitable, at least for the foreseeable future, this regime, predicated on a system of laws, rules, and norms, will likely continue to serve as the basis by which the legitimacy of state behavior will be judged. Therefore, it also is likely to continue to influence that behavior.
Consequently, some states have increasingly vocalized their desire to revise the international order, and have used law as a tool to do so (which some call “lawfare”). That is, as was true of Russia at the outset of its invasion of Ukraine, states understand the strategic importance of using the language of the law to defend their actions, a fact that seems unlikely to abate.
Rather than rejecting outright the norms and laws on which the international order is built, some states, particularly China and Russia, can be expected to undertake efforts to reshape them to advance their own strategic interests and create what scholar Tom Ginsburg termed authoritarian international law. Indeed, China, in particular, has called for a great rejuvenation of the Chinese nation, a key aspect of which entails efforts by China’s leaders to take an active part in leading the reform of the global governance system. Broadly illustrative of this point are China’s efforts at creating a veneer of legal legitimacy for its ambitions in the South China Sea and, more recently, to publish maps that encroach on territory claimed by Russia, India, Malaysia, and others.
At the same time, those wishing to disrupt the liberal order can be expected to concurrently create or reinterpret international law in a manner that seeks to undermine U.S. stature in the international community and displace it as a world power. As a result, by choosing to work within the system in lieu of rejecting it, adversaries can exploit international law’s benefits, while simultaneously undercutting its principles.
For these reasons, legal practitioners providing counsel about the future of international law play a vital role in preserving the rules-based international order. Most critically, their responsibility to help clients understand the sophisticated ways authoritarians aim to use law for their own ends, rather than reject it, is a moral imperative. For, only by doing so, can such aims be recognized and confronted as the danger they are.