← The Lawfare Podcast
The Lawfare Podcast
Lawfare Archive: Russia’s Aggression Against Ukraine and the International Legal Order
01:29:06
Loading summary
Transcript64 lines
- [00:00]
Oona Hathaway
Ever find yourself bored or trying to kill time? We have finally found a solution for you. Royal Match.
- [00:07]
Royal Match Promoter
Don't believe me?
- [00:08]
Oona Hathaway
Let's hear what people say.
- [00:10]
Scott R. Anderson
Royal Match is such a fun puzzle game. There are over 10,000 levels. Also a bunch of mini games which.
- [00:15]
Oona Hathaway
Makes it super exciting.
- [00:16]
Podcast Advertiser / Lawfare Announcer
My favorite part? It doesn't need wi fi. I play on my commute, on flights, even while waiting in line. And honestly, no ads.
- [00:24]
Oona Hathaway
Not a single one. That's why I'm so into it. So there you have it. A relaxing, challenging, totally ad free game that goes wherever you go. Download Royal Match and see why everyone loves it.
- [00:37]
Podcast Advertiser / Lawfare Announcer
When you think of skyrocketing brands like Aloe Allbirds or Skims, it's easy to credit their success to great products, sleek branding and brilliant marketing. But here's the overlooked secret. The real magic lies in the engine behind the scenes, the business powering their business. For millions of brands, that engine is Shopify, making selling seamless for them and shopping effortless for us. Upgrade your business and get the same checkout Alo Yoga uses. Sign up for your $1 per month trial period at shopify.comretail all lowercase go to shopify.comretail to upgrade your selling today. Shopify.comretail.
- [01:31]
Oona Hathaway
I'm Isabella Arroyo, intern at Lawfare, with an episode from the Lawfare archive for December 31, 2025. On December 20, US envoy Steve Witkoff and Jared Kushner met with Russian envoy Kirill Dmitriev in Florida to discuss an end to the Russia Ukraine war. The next day, Witkoff and Kushner met for talks with Ukrainian National Security Adviser Rustem Umarov. Witkoff publicly praised both talks as productive, though the contours of a peace deal acceptable to Russia and Ukraine remain unclear. For today's archive, I chose an episode from April 4, 2023, in which Oona Hathaway discussed how while Russia's aggression against Ukraine has stressed the international legal order, international law and institutions responded robustly and could still emerge from the conflict stronger than they were before. The episode includes audio from Hathaway's Breyer lecture at the Brookings Institution, as well as from a panel moderated by Scott R. Anderson, featuring Hathaway, Rosa Brooks, Karen Landgren, and Martin Kimani.
- [02:41]
Scott R. Anderson
I'm Scott Anderson, and this is the Lawfare Podcast for April 4, 2020 20:23 Russia's invasion of Ukraine has tested the international legal order like never before. For many, the fact that a nuclear power and permanent member of the UN Security Council would engage in unveiled aggression against another state seemed like it might be the death knell of the international system as we know it. But last week in the annual Breyer Lecture on International Law at the Brookings Institution, I, Ona Hathaway, the Gerard C. And Bernice Latrobe professor of International Law at Yale Law School, argued that international law and institutions had responded more robustly than many had initially anticipated and that they may yet emerge from the Ukraine conflict stronger than before. In this episode, we are bringing you the audio of Professor Hathaway's lecture, followed by a question and answer session with my Brookings colleague Konstanz Stelzenmuller. I then moderated a panel discussion that included Professor Hathaway as well as Professor Rosa Brooks of Georgetown University Law Center, Karen Landgren, the executive director of Security Council Report, and Ambassador Martin Kamani, Kenya's permanent representative to the United Nations. It's the Lawfare podcast for April 4 Russia's aggression against Ukraine and the International Legal Order.
- [03:58]
Oona Hathaway
So I want to begin by inviting you to cast your minds back to a year ago, just after the invasion had begun. As you recall, on February 24, 2022, Vladimir Putin launched what became the largest ground war in Europe since World War II. At the time, the situation looked bleak. Frankly, many believe Ukraine had very little chance of surviving the onslaught from its much better armed, much larger neighbor. After all, Ukraine's military is much smaller than Russia's. Russia has five times the number of active military personnel, five times the number of armored fighting vehicles, and ten times the number of aircraft. Overall, it spent roughly ten times the amount on its military that Ukraine did. So it seemed very unlikely that Ukraine was going to be able to hold out in the assault. And to top it off, of course, Russia possessed the largest nuclear arsenal in the world and held a veto on the United Nations Security Council so that it could prevent any kind of action that United nations might take. So if there was ever a case where law would capitulate to power, this was it. And indeed, as the war began, it looked like we were witnessing the beginning of the end of the modern legal order. And yet, so far, at least, the worst has not come to pass. On the eve of the war, Putin predicted that his special military operation was going to last mere days. And here we are more than a year later, and Ukraine retains control of the vast majority of its territory and certainly has not capitulated to Russia. Many of the gains that Russia made early in the war had been reversed, and the international system has proven imperfect but robust. So today I want to consider what the war has taught us about the strengths and weaknesses of the international legal order and what our way forward might be from here. So when Russia launched its aggressive war against Ukraine, it violated the prohibition on the use of force in the United Nations Charter. The Charter provides an article 2, 4, that no state may resort to the use of force against any other state party. As Scott Shapiro argued in our book the Internationalist, which I see that Constanze has a copy of it right there. That's great. It's still available for sale. That the fundamental underlying principle of the modern era is the prohibition on force. We argued that war used to be perfectly legal and legitimate, and indeed, war was a key way in which states resolved their disputes for hundreds of years. If a state had a debt that it owed to another, the state could go to war to collect that debt. If there was interference with trade relations, states could go to war. For that we talked about. The first war manifesto we found was for wife stealing. So there were lots of reasons the states went to war with one another for hundreds of years. But the 1928 Keller Brienne Pact, which for the first time outlawed war, and then the United nations chartered, prohibited war, outlawed war, and transformed the international legal order in the process. The prohibition on force embodied in Article 2. 4, the charter today, is not just one rule in the international legal system. It is the fundamental underlying principle on which the rest of the international legal order depends. So when Putin launched his war over a year ago, he put that underlying principle at risk. But the test of a legal rule, whether it's domestic or international, is not determined simply by whether it's violated. It's determined, too, by the response when it's violated. So we never say, for instance, that there's no laws against theft because things are occasionally still stolen, right? We would say, well, yes, things are still occasionally stolen, but when someone's caught, there are consequences. They can be prosecuted, they can be put in jail. So it's not just the fact that the law is violated, it's what happens next. And so here to see what the strengths and weaknesses of the international legal system are, we have to look at not just whether Russia violated the law, which it obviously did, but the consequences that Russia has faced for its illegal war. So first, let me address at the outset a possible source of skepticism. One might reasonably ask whether prohibition on force had been so eroded before Russia launched this war in Ukraine that it really had become a fiction. And no doubt there's some evidence for that, not least of it the US invasion of Iraq in 2003. And its use of force under the controversial unable and unwilling theory of self defense. Since then, these actions have been deeply corrosive to the international order. And I don't mean to discount them. Indeed, I've been consistently critical of them for my entire career. But one can recognize these violations have taken place and yet nonetheless believe that the post war era is importantly different than the world that existed. When war was legal and legitimate, then states could go to war to settle any complaint or dispute. And they did. They could engage in the conquest of territory. And conquest is generally, unquestioningly accepted by all other states. Indeed, from 1816 through 1928, around 250,000 square kilometers of territory was conquered by states every year, and those conquests stuck. Moreover, gunboat diplomacy, in which states would be forced to enter into treaties at the point of a gun and then held to those treaties by threats of war were commonplace. So while we can point to cases where the prohibition of war has not been observed since 1945 and the United States, as I said, has been one of the greatest defenders and one of the greatest offenders over the last several decades, it's a mistake to suggest that these legal principles are meaningless or ineffective. The modern legal order is grounded in the prohibition on war, even if it's not always perfectly observed. Okay, so I said earlier that the test of a legal principle is not just whether it's violated, but what response meets that violation. And here we've seen a response more robust than many expected when the war began. Normally moribund international institutions has suddenly sprung to life in response to the war. Here I will detail international community responses of four condemnation, outcasting, arming, and accountability. So let me say a bit about each. So first, international law and international institutions have been used to condemn Russia's war. As invasion began, you may recall the UN Security Council held some initial meetings in it was clear how those were going to end. Russia has a veto on the Security Council. It was clear that Russia was going to veto any effort to condemn its war and any kind of enforcement action that might be undertaken. And many thought that that was going to be the end of it. But interestingly, it wasn't the end of it. So after Russia made clear it was going to veto any action that was referred, the action was referred to the General assembly, and it was done so under the Uniting for Peace Resolution. The Uniting for Peace Resolution was first adopted in 1950, and it provides that the Security Council, if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its responsibility to maintain international peace and security. The General assembly will consider the matter immediately with a view to making a recommendation to its members. So when Russia vetoed Security Council action, the Uniting for Peace resolution was used to refer the matter to the General Assembly. And the General assembly took that charge up. It voted overwhelmingly to condemn the war and declared that it was in violation of Article 24 of the charter. Only a small handful of states, Belarus, Eritrea, North Korea, and Syria, voted with Russia on the resolution. There are 141 states that voted in favor of the resolution. So the vast majority of states, including a majority in every region, voted in favor of this resolution condemning the war. That majority has been sustained through several additional votes, the latest coming only hours before the conflict entered its second year, with again 141 states voting to condemn the war and demand that Russia immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine, and just seven, in this case, including Russia, voting against. In addition, the International Court of Justice has also played an important role in condemning the Russian invasion. On February 26, just two days after the invasion began, Ukraine submitted an application to the International Court of Justice, beginning proceedings against Russia. Now, you may remember that at the outset of the war, Putin made claims in trying to justify the war that part of the justification was that Ukraine was committing genocide against its citizens in the eastern part of Ukraine, and that that justified the invasion. What was so clever about the Ukraine is they used that claim to get into the International Court of Justice because the Genocide Convention has a provision within it that allows for submission of disputes over the Convention. And so Ukraine submitted a case to the International Court of Justice, and the court moved extraordinarily quickly to assess the case and heard read submissions from both sides and found against Russia, ordering it to cease the war immediately, finding that there was no basis for these claims of genocide and that this didn't justify the war. Second, international is being used to outcast Russia. And here I use the term outcasting in a very specific manner, drawing on my work with Scott Shapiro, including in the book the Internationalist, but also in a separate article on outcasting. I mean the mechanism for enforcing international law where states exclude law violating states, here Russia from benefits of international cooperation to which they would otherwise be entitled. And as I've argued in my work, this is one of the key ways in which international law is generally enforced, not through police action, because there's no international police. Russia has been excluded from a number of international organizations, including, of course, the Council of Europe. But the main form of outcasting faced by Russia since the war has began has been a system of unprecedented economic sanctions. It's one of the most expansive the world has seen outside of Security Council ordered sanctions. I'll say more in a moment about whether those sanctions have been effective. But for now, the key point is that sanctions response has been significant and widespread. Third, the condemnation and outcasting of Russia has been accompanied by another important development, that is the arming of Ukraine. The United States alone has provided over 70 billion in aid to Ukraine, including 44 billion in military aid. Now one might say, well, where's the law here? The law, of course, is less obvious, but without this condemnation that I just described, without the consensus that this war is an illegal war, that it's in violation of the United Nations Charter, that Ukraine is acting lawfully to defend itself, that it didn't in fact commit genocide, that it is in fact engaging in a righteous war that's lawful under international law. Without all of that, you would not have seen this collective response to come to Ukraine's aid. You would not have seen the uniform level of aid, of military aid, of financial aid and the rest. Law has a legitimizing value. The states supporting Ukraine are acting in support of a state that's legally in the right and that matters. This has been an important part of the political debates around the world, particularly in Germany. But it's important to the willingness of states to globally support Ukraine against Russia's attempt at illegal conquest. It is, moreover, important to note that it's perfectly legal to provide aid to Ukraine, which is engaging in a lawful defense of itself under international law. Under Article 51, it's allowed to lawfully respond to an illegal use of force with force to defend itself. By contrast, it is illegal to support a state like Russia that is waging an illegal war, and doing so is to aid and assist that state in an internationally wrongful act. Now, while states have continued to provide, engage in trade with Russia, even some of its closest allies, particularly China, have been reluctant to provide military support, in part for that reason. Fourth, a legal war has been and will be subject to criminal prosecution and legal accountability. On February 28, just four days after the invasion began, ICC prosecutor Karim Khan announced that he was seeking authorization to open an investigation as soon as possible. Neither Russia nor Ukraine is party to the Rome Statute, which created the International Court and gives it its jurisdiction. But in 2013, Ukraine accepted the jurisdiction of the International Criminal Court and made a submission again then 2014, accepting the jurisdiction of the court going forward. And so it has accepted the jurisdiction of the court over crimes committed on the territory of Ukraine. On March 2, Khan announced he had received in addition 39 state referrals and that he would immediately proceed with an investigation. Never had the ICC responded so quickly to the outbreak of a conflict. That investigation, of course, has recently resulted in the indictment of Russian President Vladimir Putin and his Presidential Commissioner for Children's rights in the Russian Federation. This is an extraordinary step forward for international criminal justice. In addition to criminal accountability, of course, the UN General assembly has also endorsed the creation of reparations mechanism. And I think we'll be talking more about this later. And there's significant effort right now to think about how to compensate Ukraine for the illegal war being waged by Russia. All of this response suggests there have been real consequences for Russia and its violation of the prohibition of war. And while that response has not been sufficient thus far to bring an end to the war, it sent a clear message that the violation on the prohibition of war remains core to the international legal system. That message is directed not only at Russia, it's intended too for any state considering following in the footsteps of Russia in the future. I think it's safe to say that the robust response will give states considering similar invasion in the future some reason to reconsider. So, in short, the response to an illegal war launched by a nuclear armed state with a veto on the Security Council has been far more effective than anyone had any reason to hope at the outset. But we've also learned some important lessons in the course of the war. Some hopeful, some more foreboding about the international legal order. And I want to say a bit about those here. One thing that we have learned is the United Nations General assembly is capable of more than we thought from the very start of the war. The Security Council was, as I mentioned, completely hamstrung. It couldn't act because of the veto that Russia possesses. And while Russia could not prevent debate of the resolution, it could veto it so that the United Nations Security Council couldn't move forward. As I mentioned, that then led to the activation of the long dormant Uniting for Peace resolution. And when Russia vetoed the resolution, it went forward and led to the condemnation in the General Assembly. The General assembly has since voted five more times on issues relating to Ukraine, the most recent of which again resulted in a vote of 141 states and seven against. It's also, in the course of these events, enacted a resolution, sometimes referred to as a veto initiative, which provides that anytime a matter is VetoeD in the UN Security Council within 10 days, it will be referred automatically to the General assembly for consideration. This further strengthens the role of the General assembly as a check on some of the most powerful states. And there are proposals afoot that would continue on this progress. A proposal I've supported would have the General assembly recommend the creation of a special tribunal to try the crime of aggression in Ukraine. And there have been similar proposals for the General assembly to play a role in creating a reparations mechanism. If these proposals go forward, we could see the General assembly grow even more powerful, thus reorienting the United nations as a whole. On a less hopeful note, we have seen that sanctions and other outcasting sanctions, while widely adopted, have not been as successful as one might have hoped. Obviously, it hasn't brought an end to the war. The threat of sanctions didn't stop Putin from launching the war in the first place. Russia's economy took an initial heavy hit, but it's somewhat recovered and gained its footing. And at first it seemed the chief challenge was what Scott Shapiro and I have called the too big to outcast problem. That is, some states are so big and so important to the global economy, the states can't outcast them without placing their own economy at risk. Early on, we saw this in some of the reluctance of European states to place severe sanctions on Russian oil and gas, which of course they depended on and were concerned that it would make it difficult to actually heat their country through the winter. There are other problems too. Russia profited from the effects of its own war. Of course. It primarily sells oil and gas on the international market. And the war, although there were sanctions, the war pushed up the price of oil and gas and therefore its profits. And there are many states not participating in sanctions that were prepared to make up a fair bit of the difference in the sanctions from the cost of the sanctions. Countries including India, China and Turkey have increased trade with Russia, even as Western Europe and a number of allied states have significantly cut back their trade with Russia. The United States, meanwhile, has not deployed secondary sanctions that would penalize these states for doing business with Russia, in part because of fears of what that would do to the global economy. Now, it may be too early to pronounce about the power weakness of sanctions. I continue to be something of an optimistic, particularly because the sanctions were specifically designed to have a growing impact on time over time. They're sort of long acting sanctions with the kind of growing effects as time goes on. But I think it's necessary to acknowledge they haven't yet had the effect one would have wished. I don't think it should cause us to give up on sanctions as a tool of enforcement, as they are the chief alternative to war. But we do need to engage in more creative thinking about how nonviolent consequences for illegal action can be used to enforce the law, especially against states that play such an important role in the global economy. Most challenging, We've been confronted by what might be called the double standards problem. This challenge has emerged in many contexts since the war began. The rapid and widespread response to the legal war is met with some shaking of heads by those familiar with the illegal uses of force that have taken place elsewhere in the world, often under the label of counterterrorism operations. Meanwhile, calls for the special tribunal to try the crime of aggression in Ukraine have met with questions about why this war deserves a special court when there has been no accountability for the illegal US War in Iraq, for instance. And calls for reparations have been met with some disbelief by those who've suffered the cost of war for decades, with no prospect of compensation for homes unlawfully destroyed and family members killed. The United States, it has to be said, has come under special scrutiny in the international arena, meeting with widespread skepticism in much of the world, for one state sees its newfound enthusiasm for the prohibition on war and international criminal accountability. When this war began, after all, it was a very fresh memory. The United States had put sanctions on the International Criminal Court for investigating possible war crimes taking place during the war in Afghanistan. So it's very hard to take the United States seriously, frankly, when it becomes an enthusiast of international law and suddenly celebrates the International Criminal Court and its actions against Russia. And yet, we should not refuse to make progress toward a more just world simply because some of the advocates of justice and accountability are not themselves above reproach. We should instead insist on commitments and institutional reforms that will strengthen accountability for all in the future. The war in Ukraine, after all, has revealed limitations that long predate this war. We should not rest at pointing out that these problems are far from new. We should see the current urgent desire for solutions as an opportunity to improve the system for all. And I'll end with three opportunities. First, there is a new opportunity to strengthen and improve international criminal justice. The International Criminal Court's investigation, the largest in its history, has the potential to reduce impunity not only in this war but but in wars in the future, as it builds momentum for the work of a court that, after all, was created precisely to establish a mechanism of international criminal law accountability that would not rely on the whims of the United Nations Security Council. That has been accompanied by calls for prosecuting the crime of aggression, which, due to limitations on the jurisdiction of the International Criminal Court, cannot be prosecuted by the Court. If these efforts prove successful, that will send the message that even the most powerful states can be held to account. Second, there's new recognition that absent Security Council action, there are very limited tools for obtaining reparations for damages done in unlawful wars. We should be focused here not just on coming up with creative solutions to the reparations challenges for this war, but in the process considered how to address similar problems in the future. That can include ensuring robust reparations, a connection with international criminal justice trials, but also concludes progressive development of the law allowing for freezing of assets of those who have violated international law and holding those assets until international obligations to provide reparations for international legal harms have been met. Last, and most important, the shift in power towards the General assembly that we've witnessed over the last year is one of those institutional shifts that once made, will be difficult to reverse. In particular, the activation of the Uniting for Peace resolution and the passage of the veto initiative providing for automatic referral of resolutions vetoed by the permanent members of the Security Council to the General Assembly. Strengthen the role of the General assembly when the Security Council is paralyzed. It's notable, I think, and laudable the United States supported the veto initiative, which will apply in the future to even resolutions the United States has vetoed. This expanded role for the General assembly has a prospect of reinvigorating international institution that has too often been incapacitated by the threat of a veto by the Security Council. So let me end by just saying Russia put the international legal order at risk when it launched its war a year ago. What has and what will determine the future of the international legal order is how nations respond to to that violation. If the response is sustained and if the war helps prompt these and other innovations, it's possible that what began as the greatest threat to the international legal order may turn out to be its salvation. Thank you so much.
- [27:58]
Scott R. Anderson
Following Professor Hathaway's lecture, she sat down with Brookings Institution Senior Fellow Constance Steltenmuller for a one on one discussion. Here is their conversation.
- [28:07]
Constanze Stelzenmuller
I thought we should talk at first about the importance of the ICC indictment. The International Criminal Court indictment published recently, really stunned not just the general public, but also the legal world, I think, by the audacity with which it indicted not just Mrs. Vova Belova. If I pronounce that Correctly, the lady in charge of the abduction of children from Ukraine to Russia and their forced adoption, but also Vladimir Putin himself, the president of Russia. An astonishing decision. To anybody who has in any way is in any way familiar with the immense efforts that the Nuremberg Tribunal had to put into the question of command responsibility. The difficulties of indicting Slobodan Milosevic and Radovan Karadzic after the Yugoslav was an extraordinary decision. Can you perhaps contextualize that a little bit for us?
- [29:09]
Oona Hathaway
Yeah, thank you for that. I mean, it was an extraordinary moment. I mean, if you think about it, this is. We sort of tend to take it for granted. But remember, this is, again, a country that has the largest nuclear arsenal in the world, has a veto on the Security Council, and yet, you know, there is an effort to hold it accountable, and in particular, Vladimir Putin, who's more responsible than anyone for launching this war, accountable for the war. It is a audacious move in a sense, because going for the head of state while the war is ongoing, there are a variety of challenges. Obviously, there's the challenge that you're highly unlikely to actually see him in the dock anytime soon. I think they made the judgment, and I think they made the right judgment that that is not the thing that matters. The thing that matters is the statement that you're making from the outset that the people who are most powerful, who are most responsible for the war, will be held accountable for it, and that accountability can come even if somebody doesn't actually end up being convicted. So accountability can come from the issuing of the indictment, the collection of the evidence, the arrest warrant, the freezing of assets that all accompany this indictment. And. And so I think that this was a really important move and a kind of opening salvo from the court that it's going to really hold. Hold everyone accountable for this war.
- [30:37]
Constanze Stelzenmuller
Let's just for the sake of those who aren't as in the weeds in this as you have, and I covered back in the day when I was a journalist, the Yugoslavia and Arusha tribunals and the icc, the Rome Statute hearings. But that's about as geeky as I get. You're much deeper in this than I am. Just to be clear, it is not possible to try the persons indicted in absentia, but it is possible to hold evidentiary hearings. That was first pioneered, very importantly, and was a legal innovation at the time by the Yugoslavia tribunal. Right. So that is something we could expect to happen.
- [31:15]
Oona Hathaway
Yes. So you're exactly right that it's generally considered to be inconsistent with the international human Rights law hold trials in absentia. Exactly. And so the International Criminal Court doesn't permit trials in absentia, but that doesn't prevent it from moving forward with significant action against those who are indicted and arrested, issuing arrest warrants, issuing indictments, and holding evidentiary hearings. Collecting evidence. The prosecutorial center that was mentioned earlier is really an important part of collecting evidence as well for the potential of eventually prosecuting a crime of aggression. So all of that work is taking place even though the prospect of Putin actually landing in the dock at the moment doesn't seem particularly particularly high.
- [32:04]
Constanze Stelzenmuller
I think we should also perhaps point out that this is the first international conflict where so much evidence has been collected in real time by sort of civilian collectors, as it were, which of course does create problems for the quality of the evidence, which is why I think a lot of governments have been discreetly providing support to make sure that that evidence isn't tainted or corrupted. Right.
- [32:29]
Oona Hathaway
Yes. And actually the present indictment is very interesting because it's based in part on the work of my colleagues at the Yale School of Public Health. And they're partially funded by the State Department, but they're also, you know, a educational institution. And a lot of the evidence was satellite evidence, satellite imagery that was collected from private satellite companies. So they collected all the satellite evidence as well as open source intelligence as part of building this case around how many children were being moved, where were they being moved, were they being, you know, they're being taken out of Ukraine? They documented all of that using information that ordinary people can get their hands on if they're willing to pay for satellite imagery. So it's pretty remarkable. But you're absolutely right that when it comes to war crimes and the rest, I mean, a lot of this is open source information. And one of the challenges is going to be making sure that the chain of custody is properly managed so that when a trial actually takes place that you have evidence you can actually use at the trial. Because one of the concerns about having all this open source evidence and having all these people out there sort of collecting evidence is this concern that it's not going to meet the international standards for evidence such that it can be actually submitted in court. So that is one of the challenges that we're facing.
- [33:50]
Constanze Stelzenmuller
There is, of course, also the fact of that legendary audience recorded on TV that Putin gave to Mislova Belova, where they discussed their ongoing war crime to a global audience forever recorded. Right. That's also quite helpful from the point of view of the icc. Right.
- [34:08]
Oona Hathaway
And I think that's Partly one of the reasons that they started here, you know, and of course, like, it is one of the most horrific crimes. Right. Like taking children away from the country and indoctrinating them into a different way of thinking is really, is an extraordinary crime. So it's. I think there are a lot of reasons that they made the decision to start with this.
- [34:30]
Constanze Stelzenmuller
Isn't there also another aspect to this going straight to the top in this case? Again, really unusual because all previous war crimes tribunals started at the bottom. The Yugoslav prosecutions were frustrating to many of the victims and many observers because they literally started with the smallest possible fish and then over a process of years, worked their way upwards, where here what we have is it's going the other way. And presumably that also is intended to have a deterrent effect to Russian commanders in the field. Right. They know that the ICC will consider them in the same category and will come after them. And of course, commanders in the field are at risk of capture by Ukrainian authorities who could hand them over to the icc.
- [35:21]
Oona Hathaway
I think that's right. And it's also, I think, meant to send a message about the value and importance of the International Criminal Court per se. Because under international law, a sitting head of state of another state can't actually be prosecuted in a foreign domestic court.
- [35:36]
Constanze Stelzenmuller
Exactly.
- [35:37]
Oona Hathaway
So even if they got their hands on Putin, they couldn't prosecute him in Ukrainian courts. Only an international court can do that. International courts don't have to observe head of state immunity. And in particular, the International Criminal Court has a provision within its statute that provides that it doesn't have to observe head of state immunity. So partially, it's also, I think, a message from the International Criminal Court that this is an important role for a court like the ICC to play is to go after those at the very top that a foreign domestic court couldn't prosecute even if they wanted to. And that's, you know, of course, we have thousands of prosecutions going on for the very lowest level offenders in the Ukrainian courts. The Prosecutor General, Ukraine, apparently is investigating something like 90,000 separate incidents within Ukraine. So there's a huge number of these cases going forward within the Ukrainian courts. The ICC is meant to play a very specific role here, which is to go after the people at the very, very top. And once you have an arrest warrant issued by the icc, all the state parties are obligated to enforce that arrest warrant. And so it makes it very difficult for anyone to travel. And that's less of an issue for Putin because, you know, he's I mean, it is an issue for Putin, but it's less of an issue for him than lower level officials. And that's why I think that going after Ms. Livova Belova is so important. She's 35 or something like that. She'll never be able to leave Russia. And I think that this is sending a message to, not just to the generals, but also to these people kind of in the mid level. Like if you're working towards these illegal ends, you potentially could be held accountable.
- [37:19]
Constanze Stelzenmuller
This also, of course, was a huge issue in Nuremberg, right? The there was clear international law to prosecute the actual perpetrators, the killers. It was much more difficult to prosecute what we, what we in German called the Schreibtisch Theta, the enablers at desks far away, the Eichmanns. In other words, that law was only developed later, not least in the Auschwitz hearings, both in Israel and in Germany. However, there is one little, shall we say, political risk here. And that is something that Rebecca Hamilton pointed out recently in an article in just security, Article 16 of the ICC's Rome Statute, its constitutive document enables the UN Security Council to put any prosecution on hold for a period of 12 months. Now, the Security Council has five members. One of those is Russia. Every member of those permanent five, the five nuclear powers, has a veto. But in theory, there is a risk, of course, even if, you know, say the US vetoed an attempt by Russia to do this, there is a risk, of course, that this kind of prosecution attempt might be used as political leverage in peace negotiations. Do you think that that's a concern, something that we should be thinking about?
- [38:40]
Oona Hathaway
You know, it's possible, though, I think unlikely. I think it would be difficult given the fundamental personal responsibility of Putin for these horrific crimes. I mean, the launching of the war itself, which has led to extraordinary damage and destruction in Ukraine, and destruction and damage to the international legal order as a whole. The horrific war crimes that we've been seeing coming out of the country, which seem to be pretty clearly, you know, directed from the top, or at least the conditions created for it from the top, crimes against humanity, which our vice president sort of declared. We've come to the conclusion that the crimes against humanity are being committed. I think it would be difficult. I mean, it's of course possible if there was a deal that was worked out with Russia, the Security Council could agree to kind of iteratively delay any proceedings from moving forward as part of a peace deal. So that is a carrot that potentially would exist. But I, I suspect that that is difficult politically for the members, the other four members of the Security Council to get behind unless it really was the only way to bring an end to the war. And there was otherwise a, you know, a really significant shift in the position that Putin has taken so far in terms of his willingness to withdraw from Ukraine.
- [40:09]
Constanze Stelzenmuller
I mean, I think it's, you know, I personally agree with you. I think that one of the significant political functions of, of this indictment, it really does completely reframe the debate about negotiations of any time of any kind. Right. And to me that's, that's a hugely important achievement regarding, of what hearings are held and who ends up in court in the end. Yeah, and that's a, that's also very different from what happened in the end in with the, how the Yugoslavia wars were ended, notably with the peace agreement, which by the way, didn't prevent the later on indictment and prosecution of some of the top perpetrators. Let me come quickly to the question of a special tribunal for the crime of aggression. And I'm going to quote your own piece in Foreign affairs in January on this where you advocate for such a tribunal and you remind us of a sentence from one of the Nuremberg Judgments where it said to initiate a war, I quote, to initiate a war of aggression, you is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole. Incredibly powerful statement. In your remarks just now, you sort of glanced at the question of the special tribunal, what do you think should happen here and is it going to happen and how?
- [41:32]
Oona Hathaway
Well, so I have come out repeatedly in support of this idea of creating a special tribunal to try the crime of aggression. So it's worth just a little bit of background. So I mentioned briefly in my speech that the International Criminal Court, though it has a crime of aggression within its statute, it can't prosecute the crime of aggression here because the way that the jurisdiction for the crime of aggression works, it's different from the other three crimes can only be brought against a state that is party to the statute and that has amended the Crime Aggression Amendments. And so Russia is not a party to the statute and therefore it can't be prosecuted for the crime aggression in the International Criminal Court. And amending the Rome Statute is probably a years long process, even if that was a realistic possibility. So that has led those like me who think that this is an extraordinarily important crime to prosecute because the crime is, as you say, it contains an accumulated evil of the whole and the war crimes, crimes against humanity and genocide, if they're prosecuted, don't address the full harm that's being done in this war. So it doesn't address, for instance, the killing of Ukrainian soldiers. That is not a war crime to kill Ukrainian soldiers, even if they were schoolteachers and, you know, and diplomats and, you know, and doing something completely different before this war began is most of these, most of the Ukrainian military, you know, were not professional, part of the professional military before the war began. They've all joined. Killing them is not a war crime. Because if you kill soldiers in a war, that is part of war, but it is part of the crime of aggression. And sending people to fight in a war, you know, there's been conscriptions throughout Russia in many of the ethnic minority communities and poorest communities of Russia, people have been sent off. You know, the stories suggest, like, as effectively is cannon fodder. Again, not a war crime, but part of the crime of aggression and the destruction that's been done. You know, when there's bombs launched that are aimed at a military target but destroy civilian, you know, buildings, that is not a war crime, but it is part of the crime of aggression. So there's a lot of harm that's not going to be captured. Even if we had accountability for all the war crimes and crimes against humanity. So this is why I think accountability for the crime regression is so important. And I do think it should be a special tribunal to try the crime of aggression for a variety of reasons. There's lots of technical legal reasons, and I'm happy to get into those. But I think the most important kind of reason that for me it's important is that it is the United nations charter that is violated. And this war that has been launched is a front, not just, not just a violation against Ukraine, it's a violation against the world. It is an assault on the international legal order. And to leave it to Ukraine to have to try the crime progression in its own courts is. Doesn't send the kind of message I think the international community should be sending, which is that this war is not just illegal, it is criminal. And there is going to be accountability for that. And as long as we can't prosecute it in the International Criminal Court, we should be creating a court that can prosecute it. And that, by the way, can get Putin, because Putin can't, as I mentioned, can't be tried in Ukraine. So you could only go after lower level people if you prosecute exclusively in Ukraine. So those are some of the reasons I support the tribunal.
- [45:02]
Constanze Stelzenmuller
Thank you so much. I just want to perhaps contextualize what we've just been discussing about the special Tribunal by saying that Russia's full scale attack on Ukraine on February 24th of last year is one of those rare cases in international affairs where you have an absolutely blatantly clear legal case. Right?
- [45:27]
Rosa Brooks
Yeah.
- [45:28]
Constanze Stelzenmuller
It was much more complicated in the random genocide. It was much more, which was also a war. It was much more, even more complicated in the case of Yugoslavia. It was very complicated in World War I, less so in World War II. So in a sense I also remember the tremendous efforts by the advocates of the Iraq war to justify it as a just war, which as we now know, was not. But this is one of those rare cases where it has become, it was clear from the outset where the legality and the illegality lay in this case. I want to end with one final quote from Sir Hirsch Lauterpacht, who was born in the waning Years of the 19th century near Lviv in Ukraine, who said that international law is at the vanishing point of law, which you quote. No, Klaus, sorry, I found that quote somewhere else in the new book. But still it's a legendary quote. And the astonishing thing about this particular incidence and this particular war is that it is actually leading to a resurgence of international law and a re legitimization of international law in a rescuing as you pointed out so eloquently in your talk of the international order at a time when we thought it was crumbling in our hands. So that I think is a good note of hope to end on. And I'm really grateful that you've come here to speak to us. I'm going to hand over to Scott Anderson now for the panel discussion. Thank you so much.
- [47:05]
Oona Hathaway
Thank you very much.
- [47:11]
Marc Maron
Hey folks, it's Marc Maron from wtf. Today I want to talk to you about Boost Mobile offering reliable nationwide coverage backed by a 30 day money back guarantee. Love your service or get your money back, no questions asked. Boost Mobile offers the coverage, network speed and service you're used to, but at more affordable prices. Why pay more if you don't have to? You can get an unlimited plan for $25 a month that will never increase in price, ever. No price hikes, no multi line requirements, no stress. Visit your nearest Boost Mobile store or find them online@boostmobile.com 30 gigabytes. Customers may experience slower speeds. Customers will pay $25 per month as long as they remain active on the Boost Unlimited plan.
- [48:01]
Oona Hathaway
Ever find yourself bored or trying to kill time we have finally found a solution for you. Royal Match.
- [48:07]
Royal Match Promoter
Don't believe me?
- [48:09]
Oona Hathaway
Let's hear what people say.
- [48:10]
Scott R. Anderson
Royal Match is such a fun puzzle game. There are over 10,000 levels. Also a bunch of mini games which.
- [48:16]
Royal Match Promoter
Makes it super exciting.
- [48:17]
Podcast Advertiser / Lawfare Announcer
My favorite part, it doesn't need wi fi. I play on my commute, on flights, even while waiting in line. And honestly, no ads.
- [48:25]
Oona Hathaway
Not a single one. That's why I'm so into it. So there you have it. A relaxing, challenging, totally ad free game that goes wherever you go. Download Royal Match and see why everyone loves it. Want to turn your timeline into a fast lane digital?
- [48:42]
Karen Landgren
Twin it to outpace the field with.
- [48:45]
Podcast Advertiser / Lawfare Announcer
Fast and confident decisions.
- [48:48]
Karen Landgren
Transform the everyday with Siemens.
- [48:55]
Scott R. Anderson
After Professor Hathaway's discussion with Constanza, I moderated a panel discussion with Professor Hathaway and a leading set of experts including Professor Rosa Brooks, Karen Landgren and Ambassador Martin Kamani. Here is the audio of our discussion.
- [49:08]
Marc Maron
Ambassador Kamani, I want to start with you for my first question, if that's okay. When the war broke out or shortly thereafter, you, in your capacity as Kenya's permanent representative, the United nations gave some really, really compelling remarks about the parallels between the post colonial experience of Kenya and many other countries in Africa and other parts of the world and what Ukraine's experience has been. And it's a very valuable perspective, I think, because particularly in the United States, we tend to see the Ukraine conflict through a very Western dominated lens. The dominant voices are European and American and maybe, maybe a couple other voices mixed in. But there is a very different perspective and historical experience through which many people in many parts of the world are viewing Ukraine. I am curious to hear how your perspective, that view informs your view of the conflict now a year later, and particularly what its ramifications have been for the international legal order that Ona has documented. Do you share a lot of her perspectives or is the post colonial experience very different experience that Kenya and other countries have had perhaps put the developments of the international legal order in a different light.
- [50:24]
Royal Match Promoter
Good morning. Well, thank you. I wish it hadn't started with me, but congratulations to Ona on that tremendous lecture. I learned a lot when Kenya made the statement at the Security Council, the particular statement that on the February 21st of 2021 or 2022, sorry, had we had more time than the about five and a half minutes or six minutes that you have to deliver your views in the Security Council, I think we would have said a lot more. But now what would we say at this particular time? First is to be clear that the Russian invasion of Ukraine breaches the UN Charter. And that is clear. One of the points we made also in the statement was that this is only the latest outrage against international law and the Charter perpetrated by a permanent member of the Security Council. And I like that ONA took that on and expanded the field of view to assess other parties. So a year later, what do we see? First is never have African votes in the General assembly or rarely have African votes in the General assembly been this important. And one wonders why. And of course, the reason is that the General assembly is providing legitimacy for the response that ONA is talking about, the response to the Russian Federation under those 141 votes. There's a lot more that's happening outside of the un, including sanctions, including the NATO operation in Ukraine, the military buildup and support to Ukraine to resist Russia. And that's very important. Imagine what if those votes were not present? What would it look like? Well, what it would look like is one, most parties would agree that the Russian breach of Ukrainian territorial integrity is against international law. But then many, especially those in Africa and parts of the so called global south, would also say that, that what they see is the ramping up of overwhelming Western power, the power of sanctions, the power of military power of NATO, the sheer power of shifting the international system to respond even in the face of a Security Council veto. So on one side is great power versus an illegal act of power. And because of the history we've had with these powers, in which, as ONA observed, many forms of colonialism, many forms of violence were in fact covered and defended and helped to be perpetrated by these very institutions of international law. So when Africa was partitioned in 1884, it was a perfectly legal setting according to those who are doing it. So inside us is a skepticism about a purely legal approach to this question, because we appreciate that law itself can reflect power, that law can cover the acts of power and impunity against freedom and independence of people. The Russians have been very clear when they're talking to us Africans that what they are facing is what we have faced as well. And they have touched on a grievance that they have and that they identify us as having. And that is broadly accurate, not the use of the grievance, but it's an accurate finger on the pulse that there is an underlying grievance and sense that the west uses the instruments of international law and the institutions that stand for international criminal justice to its own ends. So a year in, I would Say, what we would like is to go beyond the discussion on international justice and criminal justice and accountability, not because it's not important, but because we perceive it as not bringing peace any closer. Let me not say peace, but rather a ceasefire and an ending of the violent conflict and a return to an international economy that is not necessarily deeply responding to this particular trend. Africans have a lot of experience resolving conflicts. We are good mediators, and Kenya does a lot of mediation in our region. Well, one of the first things when you're mediating a conflict is that the question of accountability is one of the first questions. But when you're a mediator, you know that if you lead with accountability, you're unlikely to get a ceasefire because the perpetrators of the conflict will immediately see that if I lose this conflict, if we continue down this path, I am going to face personal consequences. So I better continue. So the first thing you do in seeking a ceasefire is to listen to the grievance and then try and create the setting for negotiating a ceasefire. And then from negotiating a ceasefire, negotiating a peace agreement, and then observers, there's a whole sequence. The sequence now is flipped. What we have is overwhelming military response to Russia and an overwhelming legal response to Russia. There is no mediating response. The only P5 country with a peace proposal on the table is China. The other three, other than Russia, of course, are determined members of NATO. So that's where we are. What we want is what our reaction today would be. Please let us stop putting all our eggs in the basket of the International Criminal Court. Let us stop believing that legalism that will deliver us from this major conflict and its escalation dangers. Having said all that, and this is my final point, is, do not get me wrong when I say that, to say that I do not see Ukrainian agency, the need for Ukraine to get its territory back, the need for whatever solution that emerges to be in conformity with the UN Charter. I see that, and I think we stand for that as well. But there's a difficulty, and it's not a difficulty that I have answers to, but it's important to realize my statement is not a statement that abrogates or diminishes Ukraine's right to exist as an independent state with all its territory. Thank you.
- [58:01]
Marc Maron
Thank you. That's an incredibly valuable perspective. I appreciate that. Karen, I want to turn to you next. The ambassador has already teed up the important role that the institutions of the UN system play in the international legal order. They are the ones tasked in many ways of mediating the power relations institutions making the principles that are supposed to balance out make the international system not just a product of power to put them into action. That's the institution's role. I think ONA has put forward a fair to say, a cautiously optimistic perspective on ways the international institutions have responded despite the paralysis or near paralysis. The challenges of having a P5 member involved in hostilities that shuts down so much what the Security Council might do if it was not involved in that way. From your perspective, both as executive director of the completely invaluable Security Council report, somebody who tracks what's happening to the UN more than just about anybody else, probably from your career in the United nations, what is your assessment of how those institutions have addressed and adapted to the challenges presented by the Ukraine conflict? Do you share that cautious optimism or might there be more cause for alarm?
- [59:11]
Karen Landgren
Thanks, Scott, and thanks Ona, for a really marvelous lecture. I want to talk a little bit about how well the institutions have performed, particularly from the perspective of reform and where the question of reform fits into the current narrative around Ukraine. I would say that a year ago the impotence of the Security Council was a big talking point, and rightly so. But the Security Council has also failed Syria, it's failed Myanmar, it failed Iraq. So because the Security Council has historically been largely incapacitated when the interests of a permanent member are directly engaged, it's hard to believe that the Council's incapacity over Ukraine is what has directly opened the US up to the idea of reform and other countries up to the idea of reform, which is very current. So I want to say a word about how I think that US Openness evolved, which is very much about where the narrative is right now in the General assembly and which may lead us to conclusions about whether we think that's really an effective counterweight, let's say, to the Security Council. It's clear that for the west, the discussion of Ukraine and how this act of aggression is resolved is really front and center in terms of preserving the rules based order and the institutions that are associated with it. But but Ukraine is not front and center for all states. And arguably the more the west has insisted on support, support for actions to isolate Russia or otherwise hold Russia accountable for the invasion and through the six GA resolutions to date.
- [61:04]
Oona Hathaway
Hey, it's Adam Grant from ted's Work Life with Adam Grant. And this message is brought to you by at&t. You know, we spend a lot of time here separating fact from claim. And when it comes to mobile networks, that distinction matters. When AT&T makes a claim, it's one you can count on. AT&T is America's fastest and most reliable wireless network. And that's not opinion, it's Data based on RootMetrics. United States Root Score Report 1H2025 tested with best commercially available smartphones on three national mobile networks across all available network types. Your experiences may vary. RootMetrics rankings are not an endorsement of AT&T.
- [61:42]
Scott R. Anderson
Hi, this is Joe from Vanta. In today's digital world, compliance regulations are changing constantly and earning customer trust has never mattered more. Vanta helps companies get compliant fast and stay secure with the most advanced AI, automation and continuous monitoring out there. So whether you're a startup going for your first SoC2 or ISO 27001 or a growing enterprise managing vendor risk, Vanta makes it quick, easy and scalable. And I'm not just saying that because I work here.
- [62:09]
Podcast Advertiser / Lawfare Announcer
Get started@vanta.com busy work weeks can leave you feeling drained. Prolon's five day fasting mimicking Diet works at the cellular level to rejuvenate you from the inside out, providing real results that include fat focused, sustainable weight loss with no injection needed. NextGen builds on the original Prolon with 100% organic soups and teas, a richer taste and ready to eat meals. Developed at USC's Longevity Institute and backed by top medical centers, Prolon supports biological age reduction, metabolic health, skin appearance, fat loss and energy. Get 15% off plus a $40 bonus gift when you subscribe at prolonlife.com start that's prolonlife.com start.
- [62:57]
Karen Landgren
I would argue that the more pushback against this has coalesced. I'm not going to say that pushback has strengthened, but I think there is now such a clear counter narrative against the West's putting Ukraine at the center of preserving international law and rules based order. And the pushback is a mix of accusations of double standards, as we've heard. And it's not just the US and Iraq. The Security Council recently traveled to the Democratic Republic of Congo and were asked what about the seizure of large tracts of the DRC by the M23 movement allegedly backed by Rwanda? Why isn't that getting the same amount of attention as the seizure of territory in Ukraine has done? The pushback also involves claims around the value of neutrality, which I'll come back to in a moment. And the pushback involves a counter narrative about issues that have equally high or higher priority for many countries. One ambassador told me recently that other problems are just as pressing as Ukraine and cited the number of deaths in Tigray contrasted with the number of deaths in Ukraine. Now, I hadn't heard that particular metric before, but it's out there. We are seeing other Global south priorities coming up in a very big way. Martin made the point about the value of African votes. Well, a lot of those priorities are around financing SDG financing, debt financing, climate financing. And Security Council reform is on that list of Global south priorities as well. Soon after the first GA resolution on Ukraine, one Council member described this as the struggle for the Global South. So that is what we're seeing. And it's that political battle, I believe, that has opened the US to reform. And a significant driver in this is also that the US is now perceived as more open to Security Council reform than are China and Russia. So this is really where I think this battle is being waged. I want to close by saying there's one positive development here and there's another development I think we should be more worried about. The positive development is, of course, that we find the US and its allies so warmly rediscovering the value of the UN Charter and in the case of the us, acknowledging double standards in a way that I haven't heard said before. So if we look back to Linda Thomas Greenfield's speech in San Francisco last September 8, she said, I'm going to quote her. This is about defending the UN Charter. This is about peace for the next generation. This is about protecting the UN's principles. It's about serving, not dominating the people of the world sentence for the ages there. Some have asked, if we are committed to these principles, will we use the UN Charter when it serves us and then abandon it when it does not. And she refers to six principles for responsible behavior for Security Council members and says about these principles, we have not always lived up to them in the past, but we are committed to them going forward. That's probably as much of an apology for Iraq as we are going to hear. So all that is very positive. But the development I would regard as alarming and maybe something of a refutation of Professor Hathaway's thesis is that so many states are not publicly on board with the argument that the Russian aggression and the breach of the Charter and the possible war crimes concern all member states. I mean, we have seen German Chancellor Olaf Scholz and Josep Borrell of the EU traveling to, among other countries, South Africa, Brazil, India, Indonesia, and seemingly leaving these countries empty handed in terms of willingness to condemn the Russian action. So my last point is there is an interpretation of neutrality out there that involves not taking a stand on the law and in some cases while enhancing trade or increasing, strengthening ties with Russia. So that is somehow neutrality, that is somehow not taking sides. And I think that should be a cause of concern.
- [67:24]
Constanze Stelzenmuller
Thank you.
- [67:26]
Marc Maron
Thank you. Karen's comments, I think, really lead into the question I want to direct towards you, Rosa, because so much of the optimism that we hear about the international legal order and institutional reform, a lot of it boils down to a fundamental change in the rhetoric and perspective, or at least espoused perspective, of the United States and U.S. officials. In the United States, we have seen a country go from sanctioning, as Owen already mentioned, ICC officials just in the last few years to having members of both political parties, including individuals who were openly skeptical of the ICC just a few months or years prior, now very openly encouraging a substantial degree of US support, I don't think signing onto it quite yet, but substantial support and engagement of a sort that had been pretty anathema. That's exceptional and I think unique and right to be noted. But it's also worth noting that a lot of other perspectives haven't necessarily changed. And the United States is, is in a little bit of a different moment here than we were five or 10 years ago. You know, we're in a much more symmetrical threat environment. There's a sense that the Biden administration is very expressive about. The United States is dealing with rising powers and near peer rivals, in particularly China, but also Russia to some degree, perhaps not quite as near peer as China. How much of what we're hearing is really an enduring change of the United States? Is this more positive vision, these rhetorical and policy changes leading towards something that's likely to be sustainable? And how bound in our strategic moment is it, is it going to be something that is here so much as we are in a multipolar system, if that's really where we're going, and how much will it endure if that multipolar system fades into some other international system 10, 20 years from now?
- [69:06]
Rosa Brooks
Thank you, Scott. And Ona, thanks for those terrific remarks. It's a really fascinating question, and I'm going to give a somewhat cynical answer. I think that, well, number one, I think that the US's relative decline as a global power is not likely to end. So I don't think that the strategic moment we're in is just going to go away and that in two years or five or 10 or even 20, suddenly the US will be the sole superpower. I very much doubt that that situation will Arise again. If anything, I think we are more likely to continue to move into a more multipolar world. If the United States is fortunate, it will be a slow slide with a soft landing in which the US Remains a major, major power. If we're less lucky, we'll be less lucky. And there's nothing inevitability, there's nothing inevitable about the continuance of empires as, as I think it is now our turn to find out. I also think that one thing, Scott, you're at Lawfare, and as you know, and most of our audience I'm sure, knows, the term lawfare was initially coined in a somewhat pejorative sense. It was coined to say, oh, look at these sympathizers with terrorists, with bad guys, who, because they lack military power in a conventional sense, are, are using law as a form of warfare. Thus lawfare. It's an asymmetrical form of combat, if you will. And the weak turn to law because they do not have the conventional militaries that enable them to blithely ignore the law. And there are some senses in which that's true, that law is often used as a weapon of the weak. And I don't actually mean that in a bad way. That ideally is the point of law, right? It's the point of the rule of law. The point of the rule of law is to say that it will constrain the powerful. It's a tool to constrain the powerful, to prevent raw power, very often in the form of raw military power, sometimes form of raw economic power, from trumping norms.
- [71:19]
Constanze Stelzenmuller
It's a.
- [71:20]
Rosa Brooks
Law is a. The rule of law is a means of ensuring that those with raw power can't trample upon those with less power. And I don't think it's particularly surprising that at a moment when the United States is confronting its own decline and relative weakness. I mean, I don't mean to overstate that the United States still remains the most powerful state at the moment. That probably won't last. We're seeing it change. But. So I don't mean to overstate it, but as we. I don't think it's particularly surprising that as we in the United States see our relative global power declining, that the apparatus of the law, the tools of the rule of law, the icc, et cetera, suddenly become somewhat more appealing to us than they were when we didn't have to care. We now have to care rather more than we used to have to care. And we're turning to institutions such as the International Criminal Court which we were happy to thumb our nose at not so very long ago. And obviously that that partly varies depending on which political party is in power and so forth. I think the Democratic administrations have always been much more warmer towards the ICC than Republican administrations, but no American administration has yet embraced the ICC fully. And we're about as close as we can get right now. Obviously, I do worry. I do share the concern. Well, I share several concerns. It's impossible to look at the war in Ukraine and not see Russia as the bad guy. Russia is the villain in this piece, no question about it. And no question about it that Russia's actions clearly violate international law, clearly have caused tremendous human suffering. At the same time, I do worry both about the perceptions of hypocrisy, of Western hypocrisy, and the impact that that has on other alignments and the alignments of other states and the ways in which that may push some states away from the rule of law, the very rule of law that we want to pull them into. I also do, you know, to use David Petraeus famous question about the Iraq war, you know, how does this end? And I do worry very much that we, the United States, we the west, we don't really have a strategy to end the war in Ukraine other than let's throw more stuff at the problem, let's try to give the Ukrainians more weapons. Never quite enough to decisively end anything, because that makes us nervous. Because we are, I think, understandably concerned about doing something that provokes an excessive reaction in Russia, in particular, the use of nuclear weapons, which Vladimir Putin has repeatedly threatened to use. I don't think he will. I hope he won't. I think the fact that his few strong allies, China, India, et cetera, have been quite clear that they would consider that unacceptable.
- [74:19]
Oona Hathaway
That.
- [74:22]
Rosa Brooks
Reassures me. But nonetheless, I think we have thrown weapons and financial assistance at the problem. We've thrown sanctions at the problem, but we don't have any. I don't think there's any obvious pathway that we have been able to articulate towards a satisfying end to this conflict. We, you know, understandably don't. We're quite reluctant, having put all of our eggs into the. Into the ICC basket, into the Russia's committing war crimes basket. And Russia is committing war crimes. No question. It makes it more and more difficult for us to even countenance the discussion of negotiated ends, because any negotiated end seems like we're conceding too much to a bunch of war criminals. And yet the way wars tend to end often involves at least tacit concessions to war criminals. And the US's recent history in the last 50 years or so does not suggest that we're particularly good at ending wars from Vietnam to Afghanistan and Iraq. We did not cover ourselves with glory in terms of our ability to bring some satisfying resolution to those conflicts. And I do worry that we are, that just as we have increasingly boxed Vladimir Putin into a corner, just as, just as our actions are arguably creating other alignments of other states that are not particularly feeling friendly towards the Western actions in Ukraine that we are boxing ourselves into more and more. I don't have a solution either, by the way. So I don't say this to say, and now I will reveal than what we really should be doing. I don't have the slightest idea. But I don't think there's a, I don't think there's going to be a good solution. I don't think that, you know, any day now Putin is going to say, I'm so sorry, I've done this terrible thing, you know, oops, I will, you know, withdraw my trips, pay reparations. No, that's not going to happen. So I think the question that all of us need to confront, and I don't think I'm not making a peace versus justice argument because I don't think it's that simplistic. I think it's more likely that whatever resolution there is is going to be some squishy, extremely unsatisfying mix of a little piece here, a little justice there, but not quite as much peace or justice as any of us would like. But I, but I do think that we need all of us to be thinking about the various unthinkable options and thinking about which of those unthinkable options are our least unthinkable and most palatable and, and most possible because the path we're going down, I don't see it ending anywhere that's good for anybody. And I wish I didn't think that. I feel like this is just a terribly depressing thing to say and I'm hoping that one of my colleagues is going to tell me why I'm wrong and why there in fact is some viable path that we are going down and things are just going to get better any second now. So please.
- [77:36]
Marc Maron
Well, I don't have an answer for that, but I do want to give the mic back to ONA to respond to these. I think we've heard some challenges on a couple different fronts, from the fronts of equity, from the fronts of institutional capacity, from durability, to which extent the trajectory that I think you've illustrated quite ably, to say that there are positive aspects of this trajectory, how far it's going to go. I want to add one thing to that too, or kind of a slightly different valence. How should we be expecting the international law system to really engage in a future world that looks like we're entering into? Where of the three major powers, let's say in the international system, two of them aren't law abiding actors necessarily. One clearly is. In the case of Russia, China has a mixed picture, but certainly you look at the South China Sea, you look at other areas, they're very willing to push unconventional views from national law. Notably, they also frame their actions in international legal view. You know, Russia has its arguments under the Genocide Convention, has its arguments about recognition. It still seems to be informed by certain international law of armed conflict principles about how it's responding or threatening to respond to the United States, to NATO, China, very much the same, still informed by international law, but a very divergent perspective. What should our expectation be when you say optimistic? What is the end state that we're measuring against? Often that can be what changes whether somebody's an optimist or a pessimist is how you view the glass. So how does that fit in here? I mean, what is it really we should be expecting out of the international legal order? How do these criticisms and the new terrain we're entering into where it's going to be operating really weigh into your assessment?
- [79:06]
Oona Hathaway
Well, that's a comprehensive question and a really important one. So this is, I think one of the challenges to the international legal order is that that two of the major states that are most militarily and economically powerful in the world have shown some reluctance to fully embrace the international legal principles and to abide by them fully. And it's easy to look at those violations and say, well, that's just a kind of recipe for disaster and maybe we should just kind of give up on this international legal order thing and sort of take what comes. And I guess I think that that is would be a rash conclusion to arrive at. And I think it's also the case that when we're saying that these countries are not fully abiding by international law, obviously there's plenty of violations that we can point to, but there's so many ways in which international law is structuring their behavior and affecting their actions. Even if states are not thinking, I am now abiding by international law, the main way in which international law structures and affects states behavior is not that they are sort of looking at the rules and saying, okay, I have to do X or Y because international law says I have to do X or Y. It's that they're looking at a set of options that are on the table and thinking about how to proceed and predicting what the consequences of those actions are likely to be. And if international law is helping to structure the responses that other states are going to take to the actions that they're engaging in, it is going to affect the choices that a state is making. Even if the state couldn't care less about international law because it changes the kinds of consequences that they're likely to face for the actions that they take. That's in part why the message of the response to the Russian invasion of Ukraine is not just about though it is about, but not just about responding to Russia's violation and having consequences for Russia, because we think that that's going to lead to a certain kind of end in this particular war. That is part of it, but that's not all of it. It's also about making clear that there are consequences for violating this fundamental prohibition on war. And that when you, if you're contemplating some other state out there, including China, violating the prohibition on war, there will be consequences. And in fact, in the months right after the invasion, a good friend of mine who's a China expert, you know, came to me and said, I now think that invasion, I thought the invasion of Taiwan was imminent. And now I think that's much less likely, not impossible, but less likely because of the significant global response to the war against a P5 member, that it's an important member of the international community that has a major role in the global economy and that there was this response to Russia suggest that there would be a price to pay and maybe a greater price than might have seemed before for a similar kind of action by China. And that's the way in which I think that's why the response is so important. This is why I was focused on that in my remarks. And that's why I think that people sometimes misunderstand international law and thinking that you have to be thinking, I believe in international law and I'm going to abide by international law. I'm going to do all these things. And only international law only works when it's working that way. And the truth is international law almost never works that way. The main way in which it works is it's shaping the consequences that states are going to face. For certain kinds of actions. And that is what is shaping their behavior. So they're engaging in kind of ends, means calculation, but that's shaped in ways that are sometimes invisible to them by international law. But nonetheless there have to be consequences that are conditioned by international law. And this is where the language of international law can make a really a big difference. And this is why I think the condemnation and the various kinds of consequences that have been brought about for the war make a difference. But you know, if, if there are many assaults over time, significant assaults on the international legal order and failures to respond to them corrode the system. And I think part of what we're seeing in the remarks that my co panelists have made, which have been, I think, very powerful and important, and I agree really with all of them, is an exposure of problems that have long existed. We're kind of seeing these problems in an now many people have seen them for a long time, but I think in the west we kind of papered them over and kind of didn't really think they were all that important. And kind of it was relatively easy to ignore them. And it's harder to ignore these problems now. It's harder to ignore the fact that the Global south has felt like the international legal system hasn't really worked in its best interest. Because when you look at the vote in the General assembly, you see that most of the abstaining states are from Africa and Asia. And I think you're completely right. Like, every one of those votes matters all of a sudden. And we care deeply that, you know, why are all these countries abstaining? Like, why aren't they on our side? Why don't they believe in the United Nations Charter? And I think it has started a conversation that hopefully is healthy, a realization that the US and other powers in the west are often willing to use the language of international law where it's convenient and ignore it where it's not. You know, and I do think that that has been that, that that that critique is a fair one and an important one and an important one to air. And when folks in the west come to countries and say, we want you to support this or that, I think it's fair to come back and say, well, wait a minute, you know, there's this confident talk about the importance of the prohibition on war and the importance of the international legal order. But, you know, have you always been consistent and what are your plans for, you know, addressing the concerns that we have more broadly about the effectiveness of the international system? And if you care about reparations for Ukraine, what about reparations in other contexts where people have suffered from illegal wars, and though that compensation has not really been on the table. And I do think that, you know, if we're going to, if we're going to salvage this international legal order, which I think is extraordinarily important and has been a source of unprecedented peace in the world for the last 70 years, that's a conversation that has to be had. I think the alternative is, I mean, coming from a historical perspective, coming from having written the internationalists and having looked at what the world looked like before the prohibition on war was a core norm of the international legal order, it's very present for me that the alternative is extraordinarily real and horrific. A world in which states can just invade their neighbors, as Russia has invaded Ukraine, is a brutal and bloody world. It's a world in which no neighbor, no state can be confident in its security and its peace. No state can engage in trade without being afraid that the gains from trade are going to be taken from it. And that is a very brutal and bloody world. And that is not the world we want to be in. And so I do think we need to have this conversation about how do we reinforce this norm, how do we address the fact that there's been inequities about how we've enforced international law and take these challenges on forcefully rather than ignoring them or pooh, poohing them or suggesting that they aren't important and valuable. And I think that they are. I do think too, it has led us to realize, like the un, there's been discussions about the UN and institutional reform at the UN and high level panel after high level panel about how to get the Security Council working again and how to make it more representative. And they haven't really gone anywhere. And part of what I'm excited about and interested in is this kind of institutional evolution, as I mentioned, towards a greater role for the General Assembly. And I think one of the values in that is that every state has one vote, so every state's vote counts. And that there's more of a sense of global equity that comes out of an institution where the General assembly has a greater role and a way for the institution to act when the P5 can't agree, which is increasingly often and has the possibility of making the United Nations a more robust and effective institution, despite the fact that we're not going to see any kind of formal institutional reform, but these informal evolutionary reforms are going to be, are maybe a way Forward as to the United States, I actually think you're more hopeful than I am about the US Discovery of the importance of international law at the moment. So look, I think the Biden administration has a much more positive approach towards international law than the Trump administration obviously did. I mean, the Trump administration was talking about withdrawing from NATO, withdrew from more Article 2 treaties than it joined, was, you know, lobbied sanctions against the International Criminal Court, like was on an all out assault on a lot of key international institutions. And so the Biden administration has obviously reversed a lot of that, has reopened conversations, was already planning on putting a kind of new footing in the relationship with the International Criminal Court. The team representing the US at the UN is willing to admit our errors and mistakes, which is an important step forward, I think, and understands the importance of working with the global community. And yet, you know, I am disheartened by some elements of the way forward. So I was at a conference on Monday on Nuremberg where Beth Van Scoch, who is in law school with us, who's now the ambassador for war crimes for the United States, gave a speech about the US Position on a special tribunal to try the crime of aggression. And there was a helpful element of it which was US endorsed the idea of criminal accountability for the crime of aggression, which is a really important step forward for the US and really valuable and a great thing, but then backed off of it by endorsing creating a court only within the Ukrainian legal system. And part of the reason for that clearly is not wanting to create a precedent that might eventually affect the United States. And I find that disheartening because I do think that we ought to be thinking more in the ways that you're suggesting, which is we are declining power, frankly. And this is our chance to make a mark on international legal institutions and create constraints that reflect our values and the things that we care deeply about. And if we're not prepared to do that now, we're not going to get a chance in 10, 15, 20 years. We really have to take that move now to move forward to create institutions that we think support our values. And we should not be sort of trying to retain some room for maneuver in the future because that room for maneuver is going to ultimately undermine us. And so I guess maybe in this respect, perhaps I'm even more concerned or cynical, I don't know is quite the right word, but want to continue to hold my colleagues in US Government's feet to the fire about maintaining a position of consistent support for the international legal order and willingness to create institutions and mechanisms that might actually constrain US action in the future, because that's the only way to create international institutions that are going to be effective for others as well. And I think we just can't get around that. And I think we still haven't gotten away from this hegemonic mindset of we can create some international legal rules that are going to be effective for others, but not necessarily for us. So that is actually something that I consider part of my ongoing project.
- [91:19]
Marc Maron
Thank you all so much for a phenomenal conversation. Iona for a phenomenal address. Thank you all for joining us as well and hope you have a good afternoon.
- [91:34]
Scott R. Anderson
The Lawfare Podcast is produced in cooperation with the Brookings Institution. Please be sure to rate and review us wherever you get your podcasts. And be sure to check out Lawfare's other podcasts including Rational Security, a casual, light hearted chat about national security news that I co host each week with my colleagues Quinta Juaresic and Alan Rosenstein. In addition, be sure to visit lawfareblog.com for extensive written coverage of national security law enforcement policy issues and consider becoming a material supporter of lawfare@patreon.com lawfair to gain access to an ad free version of this and other Lawfare podcasts, among other perks. Thank you to our colleagues at the Brookings Institution for providing us with the audio for this event. This podcast was edited by Jen Patya Howell and our music was performed by Sophia Yan. As always, thank you for listening.
- [92:23]
Podcast Advertiser / Lawfare Announcer
When you think of skyrocketing brands like Aloe, Allbirds or Skims, it's easy to credit their success to great products, sleek branding and brilliant marketing. But here's the overlooked secret. The real magic lies in the engine behind the scenes, the business powering their business. For millions of brands, that engine is Shopify, making selling seamless for them and shopping effortless for us. Upgrade your business and get the same checkout Aloe Yoga uses. Sign up for your $1 per month trial period at Shopify. Com Retail. All lowercase. Go to shopify.comretail to upgrade your selling today. Shopify.comretail.