(Editor’s note: This post – which shares thoughts with a keynote address published in 84 Ohio State L.J. 1125 (2024) – updates remarks delivered in Lviv, Ukraine, on Dec. 10, 2023, the 75th anniversary of the Universal Declaration of Human Rights, as the closing address at the American Society of International Law/Ukrainian Association of International Law Conference on Standing Tall for the Rule of Law in Ukraine. This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
Why did we come to Lviv? We gather at this historic place and time to show solidarity, and to honor the resilience and unbroken spirit of the people of Ukraine through ideas and action. But most important, to think together as international lawyers about how to build a better future.
In every generation, a crisis comes to a country that becomes a seminal global public event and engages our life’s work of advancing international law. I last visited Ukraine in March 2020, to judge the Jessup International Moot Court competition. I befriended a young international law student, Tata Marharian, who escorted me around Kyiv. But after war broke out, I turned on CNN to see her, an enlisted soldier now working as a medic in a medical hospital, taking care of the injured and dying. “I don’t know how long I can go on with the news of friends and my close ones being captured by the Russians, being wounded and dying,” she said. “It’s very, very devastating.” When I sent her a message, she wrote back, “Where is the international law I believed?” Today, I try to answer Tata’s question.
When Russia launched its full-scale invasion of Ukraine in February 2022, too many assumed that international law had totally failed. But my brother, a doctor, told me, “just as the real test of medicine is how it responds to disease, so too, must the real test of international law be how it responds to war.” Let me address Ukraine’s four wars, its grand strategy, and what international lawyers have done and must do.
1. Ukraine’s Four Wars
In Ukraine, the independence story that began in 1991 reached fruition during the 2013 Euromaidan, when Ukrainian sought to leave Russia’s orbit to become closer to Europe. This triggered Russia’s aggression, the opening gambit being the annexation of Crimea in 2014, and the arrival of “little green men” and brutal mercenaries like the Wagner Group in the Donbas – Donetsk and Luhansk. Ukraine fought back. And one reason Ukraine has held Russia to a standstill thus far is because it hasn’t been fighting for two years, but for nine. The Russians followed a familiar blueprint of colonialism, brutality, and the big lie, previously followed by Stalin and Hitler. During the staged 2014 Crimean “referendum,” the Russians falsely framed the choice as “between Nazis or Russia.”
Thus began a colonial war between Ukraine’s future and Russia’s past. Putin is an imperialist who wants to rewrite history. He does not acknowledge an independent Ukraine, although Ukraine’s long national identity began long before Russia’s. Vladimir Putin sees Ukraine as an object, not the subject of history, and its citizens as people without human rights whose will must be broken to restore Russia’s empire.
And so began Ukraine’s “four wars.” The first, kinetic war began on February 24, 2022, as a “shock-and-awe” campaign designed quickly to bludgeon Ukraine into submission. Looking back, it was no surprise that Putin decided to invade. He saw democracies in disarray. He saw a United States in turmoil after the January 6th Capitol attack, under former President Donald Trump. He saw a United Kingdom that had “brexited” Europe under Prime Minister Boris Johnson. He saw a Europe enmeshed in crisis, with the rise of authoritarians in Hungary, Poland, and Turkey. He saw Ukraine outside of NATO, led by Volodymyr Zelenskyy, an untested leader – a comedian no less – which looked ripe for invasion. He saw a weak NATO, that he thought could be “Finland-ized” if Russia showed strength. But Putin badly miscalculated. What he got instead was the “NATO-ization of Finland” and Sweden. He thought he had superior hard power, but underestimated Western unity and sanctions and relied too heavily on conscripts.
When his shock-and-awe initiative failed, Putin settled in for a punishing war of atrocity, aggression, and attrition, focused on the Donbas, port cities, and Crimea. He bombed train stations, maternity hospitals, schools, and orphanages. He combined a strategy of up-close brutality in places like Bucha with indiscriminate shelling from afar, and employed an illegal diplomatic strategy of annexation, which the U.N. General Assembly condemned by an overwhelming 143 votes. But Putin failed to realize that Russia had become a twentieth-century Goliath attacking a twenty-first century David. As stiff multilateral sanctions against Russia and high-tech military aid for Ukraine kicked in, Putin was forced to change the way he fought the war. He used up his ammunition early and could not easily replenish with modern weapons. As the war wore on, he began to depend on increasingly obsolete materiel. Ukraine stayed agile and flexible with high-tech weapons, playing the equivalent of a “full-court press” in basketball. Putin was still playing, but not the game he wanted to play. But the downside of a full-court press defense is that, over time, it exhausts both sides until one side finally gives out.
Ukraine’s second, virtual war began one day before the kinetic attack, when Russia launched a coordinated cyber attack on forty-eight Ukrainian entities, spreading malware. But Ukraine responded by creating partnerships with private “ICT allies” (information and communication technology) like Microsoft and others, spreading digital assets across cloud servers in Europe. These private allies used artificial intelligence to detect breaches of Ukraine’s cybernetwork and install corrective patches as endpoint protection. Elon Musk gave Ukraine access to his Starlink satellite, so Ukraine never lost internet connection. Private cell phone companies granted universal roaming, and Ukraine’s grid never went down. So even as an embattled nation scattered to bomb shelters across the major cities, Ukrainians and their government remained in constant communication. At the same time, Putin launched a comprehensive disinformation campaign that largely failed, simply because younger people who ignored his propaganda used social media to grasp what was really happening at the front.
Once Ukraine stalled Putin’s kinetic war and blocked his cyber and disinformation war, a third war, the legal counteroffensive, began: two cases before the ICJ; two before the Law of the Sea Tribunal and the Permanent Court of Arbitration; five cases before the European Court of Human Rights in Strasbourg; preliminary investigations at the International Criminal Court that have ripened into arrest warrants for high-ranking Russian officials including Putin; domestic prosecutions by the Ukraine Prosecutor General; a WTO trade and transit case; and international commercial arbitrations about expropriation of Ukrainian assets and various nationalized entities yielding billions of dollars in as-yet uncollected judgments.
Fourth and finally, Ukraine is fighting a war of ideas. That war pits the idea of Kantian global governance – that the law of nations, as Immanuel Kant said, shall be founded on a federation of free States sharing democratic values – against George Orwell’s dystopian vision of global spheres of influence in 1984. The Orwellian vision is championed by authoritarians around the world who attack courts, oppose diversity and inclusion, demonize immigrants, cow legislators, disparage bureaucrats, attack the media, reward their cronies, and call for populism to trump constitutional checks and balances.
So this has become a battle between Russia’s past and Ukraine’s future. Putin claimed that history predetermines the present, forcing Ukraine back into Russia’s empire. Ukraine said this is about the future, cutting off from Russian energy, moving to renewables, achieving full independence, alliance with Europe, and joining European supply chains. And while Putin wanted to refight World War II against “fascists,” he became a fascist himself. Meanwhile, Ukraine keeps fighting for the right to choose its own leaders. So, this struggle has become about whether an autocratic regime can destroy a new democracy by force or whether global democracies can work together, as Kant hoped, to save a fledgling democracy.
President Zelenskyy put it in those terms when he came to the U.S. Congress in December 2022. Putin dismissed him as an entertainer, but no one fully appreciated how media savvy Zelenskyy is: a modern-day Winston Churchill with a Zoom connection. Zelenskyy told the U.S. Congress: “This struggle will define in what world our children and grandchildren will live and whether it will be a democracy for all. . . . The restoration of international legal order is our joint task,” which also happens to be the joint task of the American Society of International Law and the Ukrainian Association of International Law.
So Russia wants Ukraine back in the USSR, while Ukrainians insist that they can get by with a little help from our friends. Russia wants to regain its lost empire; Ukraine survived the Ottoman and Russian Empires and won’t go back. Russia’s tools are force and hard power; Ukraine resists with smart power alliances, democracy, and international law. Russia uses aggression and atrocity; Ukraine uses law and diplomacy. Russia wants to treat this as a local colonial struggle; Ukraine treats this as a global struggle. Russia’s short game is force; Ukraine’s long game is law.
2. Ukraine’s Grand Strategy
Ukraine responded to Russian aggression with a five-part grand strategy: (1) information; (2) illegality; (3) isolation; (4) diplomacy, in search of what I call an “accelerated Dayton”; and (5) accountability, or the quest for a “fragmented Nuremberg.” Element one is information: use open sources to show that Russia’s actions are pervasively illegal. Second, isolation: through economic warfare, make Putin an isolated outlaw in an interdependent world. Third, illegality: brand illegal all the actions of Putin and his underlings and cronies, furthering their isolation. Fourth, diplomacy: motivate a comprehensive process of peace negotiations that hopefully will unfold faster than the many years that it took finally to end the Bosnian war through the Dayton Peace Accords. Fifth, and finally: accountability. Unlike at Nuremberg, few defendants are in captivity and there is no victor, hence not even victor’s justice. Instead, Ukraine must pursue a “fragmented Nuremberg,” asking how best to preserve criminal and civil accountability in an array of domestic and international forums.
To prove illegality, Ukraine invoked Article 2, the non-discrimination clause of Lauterpacht’s Universal Declaration on Human Rights, suing Russia before the ICJ for race discrimination in Crimea, and for violating the International Convention for the Suppression of Financing of Terrorism in the Donbas. Before the Permanent Court of Arbitration (PCA), the same team brought a Law of the Sea arbitration challenging Russia’s comprehensive theft of Ukraine’s maritime resources, stealing Ukraine’s oil and gas, obstructing navigation, looting fisheries, and seizing cultural heritage and marine archeology while polluting the marine environment. To avoid liability, Russia tried and failed to get both cases thrown out for lack of jurisdiction. The ICJ’s merits ruling in January was the first case since the Court began in 1946 to find Russia in violation of international law.
After the full-scale invasion in February 2022, Ukraine harvested legal seeds of the Genocide Convention planted 75 years ago by Raphael Lemkin. By repeating the big lie, Putin outrageously claimed that Ukraine had committed acts of genocide in Donbas. On Putin’s lies, Ukraine founded jurisdiction. Ukraine replied that this created a dispute concerning “interpretation, application, and fulfillment” of the Genocide Convention that conferred jurisdiction on the ICJ. The ICJ agreed and concluded, over Russia’s objection, that it had jurisdiction. In requesting provisional measures, we argued that this case was not just about Russia-Ukraine, but about the future of international law. We said:
The tragedy we’re watching in. . . [Ukraine] is precisely what our modern international legal system was designed to prevent. If this Court does not act decisively against this level of aggression and atrocity . . . why should any Permanent-5 United Nations Member see international law as a meaningful obstacle . . . ? Then why would we not be forced to concede that the post-war international legal project has failed?
Just nine days later, the Court answered with a 13-to-2 provisional measures order that Russia should suspend all military and paramilitary operations in the territory of Ukraine. Soon thereafter, an American reporter called and asked me, “Isn’t it true that the ICJ cannot enforce its own ruling?” I recall replying this way:
No court in the world, including the U.S. Supreme Court, can enforce its own ruling. As our Supreme Court said in Marbury v. Madison, “it is the province and duty of the judicial department to say what the law is.” Now that the Court has dispelled the veneer of legality from Putin’s actions, it has empowered everyone to enforce its order, to stop Russian aggression, to sanction the perpetrators, and to bring them to justice.
The ICJ ruling thus helped implement Ukraine’s five-point strategy of illegality, information-sharing, isolation, accountability, and diplomacy. The Allegations of Genocide ruling likely helped keep China and India on the sidelines, by sending the message that supporting Russia’s actions would amount to aiding and abetting violation of the Court’s order. As Putin continued to play the force card, his isolation has grown. His former chef, Yevgeny Prigozhin, led a mutiny by the Wagner Group, which resulted, apparently, in Prigozhin’s assassination. But in Russia, unrest has grown about conscription, insubordination, and economic crisis. As Putin has become more isolated, Ukraine has strengthened its case for more sanctions, more accountability, and more diplomacy. By so doing, Ukraine’s grand strategy has aligned with that of the United States and the European Union.
When Ukraine returned to The Hague last September to argue against preliminary objections, we were joined by thirty-two intervenors, fellow Member States of the Genocide Convention, underscoring that this has become about Russia against the international legal order. As we put it, “May a powerful state falsely accuse its neighbor of genocide, then use illegal force to kill its citizens, devastate their homeland, and destabilize the global legal order on the pretext of preventing and punishing genocide?” We told the Court, “You are the guardian of the Genocide Convention. This case will help define the scope of the Court’s power to stop the flagrant abuse of the world’s most important human rights treaty.” Once again, Russia tried and failed to get the case thrown out on jurisdiction. In the Terrorism Financing merits judgment, the Court declared that “it is well established in international law that the ‘breach of an engagement involves an obligation to make reparation in an adequate form.’” So Ukraine can now proceed to the merits in the Allegations of Genocide Case, to prove that Russia has invaded based on a lie, and flagrantly violated the Court’s unambiguous provisional measures order.
3. What International Lawyers Should Now Do
What must we now do, as we seek an endgame? Will we have diplomacy backed by sanctions? Will we build on the grain deal? Will we develop the necessary procedures for Ukrainian peace? How much of President Zelenskyy’s ten-point plan, which includes restoration of justice, will be adopted?
Our greatest task is constructive. We cannot ensure rights without a blueprint for legal architecture. Eleanor Roosevelt would pray every night, “Show me a vision of a world made new.” It is not enough just to maintain reverence for these historic treaties or to vindicate individual violations. We have arrived at a new architectural moment. As Ukraine’s soldiers fight and its diplomats seek openings, we lawyers must reimagine legal architecture. What war destroys, the law must rebuild. That is what Franklin Roosevelt said in his 1941 Four Freedoms Speech: to protect freedom of speech and religion, we need a Universal Declaration of Human Rights and an International Covenant on Civil and Political Rights; to ensure freedom from want, an International Covenant for Economic, Social and Cultural Rights; to offer freedom from fear, a Genocide Convention, a Torture Convention, a Refugee Convention.
Our “to-do list” is daunting. As this conference has surveyed, we must design an improved legal architecture of resilience and recovery for deported children, sovereign immunity, smarter sanctions, newly liberated territories, law and development, and post-war migration and the inclusion of displaced people. We need to build an “accountability ecosystem,” not just for ICJ judgment enforcement, but for civil accountability – accessing frozen assets, creating a workable compensation mechanism – and criminal accountability that ensures complementarity and coordination between the ICC and national courts to address atrocities like filtration and child stealing, not to mention a viable tribunal to try the crime of aggression.
In the end, the late former U.S. Secretary of State Madeleine Albright got it right. She thought the Ukrainians could prevail if we stick with them. Law has helped Ukraine match Russia’s hard power with soft power, partnerships, technology, and legal wins. But can law get us further, as the stakes grow higher? As Timothy Snyder put it, a Ukrainian victory would confirm the principle of self-rule, allow European integration to proceed, and let people return invigorated to other global challenges. A Russian victory would extend genocide, subordinate Europe, starve Africa and Asia, and strengthen fascists and tyrants. This war is about nothing less than the possibility of a democratic future under law. If those are the stakes, how can we be bystanders?
Because Putin’s short game is force, our long game must be law. We must be in this for the long haul. We cannot give in to compassion fatigue. We need to keep the aid flowing. We must continue our moral support. We must keep Ukraine in the news and not let it be overshadowed by other crises. And we cannot just let Putin delay until another president or Congress comes in to let him win his victory later, because the United States could not stay the course.
The long game demands that each generation pass its passion and wisdom to the next, so we international lawyers must be in this for the long haul. But that has already happened. To honor Hersch Lauterpacht, Cambridge University created the Lauterpacht Center for International Law, where I was lucky enough to study. Lemkin became a visiting professor at Duke and at Yale, where I teach. Louis B. Sohn taught the principles of the U.N. Charter and the Law of the Sea to my late father, Kwang Lim Koh, who taught them to me, who passed them on to my nephew Professor Steven Arrigg Koh; he now follows the path of domestic and international criminal law, which brought him here to this conference in Lviv.
Most fundamentally, we need to teach our students a world apart to keep speaking the common language of international law. A week before I judged the Jessup moot court in Kyiv, I judged the Yale Jessup team in New Haven: the same students, speaking the same language of international law, citing the same cases. And so, my answer to Tata’s question: the international law we believed in is all around us. Lawyers around the world are practicing it, and students around the world are studying it. As the Kyiv moot court ended and all the past Ukrainian winners came forward, I asked them, “What are you doing now?” They all answered: “I’m suing the Russians: at the prosecutor general’s office, bringing arbitrations; at the Foreign Ministry. We’re fighting force with law.” As Tata put it on social media, “Dear Mr. Koh, let us battle a little bit on the ground, and then we’ll be back to the Ukrainian international law army.”
In the end, that is why we came to Lviv. To honor history and commit ourselves to an architectural project so that, as Seamus Heaney put it, international lawyers can make “[t]he longed-for tidal wave of justice … rise up, and hope and history rhyme.”