The Lawfare Podcast

Lawfare Archive: Russia’s Aggression Against Ukraine and the International Legal Order

Original air date: December 31, 2025 (archived content from April 4, 2023)
Host: Scott R. Anderson
Featured Speakers: Oona Hathaway, Rosa Brooks, Karen Landgren, Martin Kimani, Constanze Stelzenmuller

Episode Overview

This episode revisits a crucial discussion on how Russia’s 2022 invasion of Ukraine has both stressed and galvanized the international legal order. Yale Law School Professor Oona Hathaway delivers the annual Breyer Lecture at the Brookings Institution, arguing that international law and its institutions, far from collapsing, have mounted a surprisingly robust response to Russian aggression and might ultimately emerge strengthened. This is followed by Hathaway’s conversation with Constanze Stelzenmuller and a wide-ranging panel with Rosa Brooks, Karen Landgren, and Ambassador Martin Kimani. The discussion explores international responses—legal, diplomatic, and institutional—plus broader questions about equity, accountability, and the future of global governance.

Key Discussion Points and Insights

1. Setting the Stage: The Legal Order Tested

(03:58 – 09:00)

• Oona Hathaway recaps the bleak outlook following Russia’s February 24, 2022 invasion, highlighting the massive military imbalance and Russia’s advantage as a nuclear state and a UN Security Council (UNSC) permanent member with veto power.

• The assumption was that law would yield to brute force:

  “If there was ever a case where law would capitulate to power, this was it.”
  — Oona Hathaway (04:45)

• Yet, after more than a year, Ukraine had largely held out and “the international system has proven imperfect but robust.”

2. What Has Russia’s Aggression Taught Us about International Law?

(09:01 – 27:57)

a. Prohibition on the Use of Force

• Hathaway underscores that the contemporary legal order is rooted in the post-WWI and post-WWII prohibition against war under Article 2(4) of the UN Charter and the Kellogg-Briand Pact. War was once a legal state action; now, it's proscribed.

b. Evaluating Legal Rules by Responses, Not Violations

• The effectiveness of law is judged not solely by its breaches, but by the response:

  “We never say… there are no laws against theft because things are occasionally still stolen… It’s not just the fact that the law is violated; it's what happens next.”
  — Oona Hathaway (07:13)

c. Legal and Institutional Responses (The Four ‘A’s):

• Condemnation:
  The UN General Assembly, via the “Uniting for Peace” mechanism, overwhelmingly condemned Russia—141 states voted to condemn, and this posture was maintained in subsequent votes.

• Outcasting:
  Russia faced sweeping economic sanctions and exclusion from cooperation in multiple international fora.

• Arming:
  Legal legitimacy underpinned vast support for Ukraine’s self-defense (Article 51, UN Charter), with the U.S. alone providing $44 billion in military aid. The legal clarity emboldened broad international support.

• Accountability:
  The International Criminal Court (ICC) launched investigations days after the invasion, ultimately indicting President Putin and others. UN General Assembly discusses reparations mechanisms.

d. Lessons Learned: Strengths and Weaknesses Exposed

• General Assembly’s Growing Prominence:
  Activation of dormant mechanisms like “Uniting for Peace” and the “veto initiative,” automatically referring vetoed UNSC matters to the Assembly within 10 days, signal an institutional shift in power.

• Ineffectiveness/Limitations of Sanctions:
  Sanctions hurt Russia but did not end the war, reflecting challenges when the target is an economic giant ("too big to outcast"), and illustrating loopholes—e.g., oil profits, non-participation by countries like India, China, and Turkey.

• Double Standards and Skepticism:
  Western enthusiasm for accountability is met with doubt, given past U.S. actions (e.g., Iraq) and inconsistent enforcement elsewhere:

  “It’s very hard to take the United States seriously, frankly, when it becomes an enthusiast of international law… having just put sanctions on the ICC for investigating possible war crimes during the war in Afghanistan.”
  — Oona Hathaway (22:40)

e. Opportunities for Reform and Progress

• Criminal Justice Expansion:
  ICC’s rapid, high-level indictments may cut impunity and spur similar actions in future conflicts.

• Reparations Mechanisms:
  The war highlights weak tools for reparations; there is momentum to develop asset-freezing and compensatory frameworks.

• General Assembly’s Expanded Role:
  Institutional reforms giving the Assembly new power may be durable and hard to reverse, possibly revitalizing global governance.

3. Interview: ICC Indictment and Legal Innovations

(27:57 – 47:05)

The Audacity of the ICC

• Constanze Stelzenmuller discusses the shocking scope of the ICC indictment: Putin and the Russian Children’s Commissioner targeted for war crimes.

  “Going for the head of state while the war is ongoing… the thing that matters is the statement… that accountability can come even if somebody doesn’t actually end up being convicted.”
  — Oona Hathaway (29:26)

• Legal Innovations:

  • Trials in absentia are not allowed, but substantive investigations, evidentiary hearings, and arrest warrants are possible.
  • Civilian real-time evidence collection—satellite imagery, open-source intelligence—presents both opportunities and challenges for the quality and admissibility of evidence.

Messaging and Deterrence

• Indicting leadership from the outset is meant to deter field commanders and send a clear message about the seriousness of accountability.

Political Risks and Tribunal for Aggression

• There’s theoretical risk the UNSC could “pause” ICC prosecution for negotiations, but it’s seen as unlikely unless peace depended on it.

• Oona Hathaway makes the legal and normative case for a special tribunal for the crime of aggression, underscoring that much harm otherwise goes unaddressed.

  “…to initiate a war of aggression… is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
  — Quoting the Nuremberg Judgment, via Hathaway (41:32)

4. Panel Discussion: Global Perspectives on Law, Power, and Equity

(49:08 – 91:18)

Ambassador Martin Kimani (Kenya):

• African and post-colonial perspectives are skeptical of legalism, cautioned by history where law often served colonial violence.

  “Law itself can reflect power… can cover acts of power and impunity against freedom and independence.”
  — Martin Kimani (52:16)

• African states value ceasefire and peace over accountability-first approaches, wary that early justice demands can prolong or embitter conflict.

Karen Landgren (Security Council Report):

• UN institutions have performed notably, but the impotence of the UNSC (paralyzed by veto) is not new—has failed in Syria, Myanmar, Iraq.
• The General Assembly is more activated, but a growing Global South counter-narrative sees Western pressure on Ukraine as double standard; issues such as Tigray or DRC draw comparisons for Western inattention.

  “There is an interpretation of neutrality out there that involves not taking a stand on the law and in some cases… enhancing trade or ties with Russia. That should be a cause of concern.”
  — Karen Landgren (67:01)

Rosa Brooks (Georgetown Law):

• U.S. newfound embrace of international law and the ICC is partly situational; as U.S. power declines, law becomes more attractive to constrain others.

  “We now have to care rather more than we used to have to care. And we're turning to institutions like the ICC that we were happy to thumb our nose at not so very long ago.”
  — Rosa Brooks (71:19)

• There’s a lack of clear endgame for Ukraine; justice and peace are likely to end in an “unsatisfying mix.” Western rhetorical overcommitment to justice can box in both adversaries and policymakers.

Oona Hathaway’s Response

• Even non-abiding states are influenced by international law, as it shapes consequences and structures choices in ways states may not even recognize.

  “The main way in which [international law] works is it’s shaping the consequences that states are going to face… that is what is shaping their behavior.”
  — Oona Hathaway (80:12)

• The crisis exposes longstanding inequities and is forcing earnest debate about double standards, reparations, and representation.

• Hathaway is “disheartened” by persistent U.S. resistance to fully binding itself (e.g., limiting support for an aggression tribunal) and warns that failing to seize this reform moment will ultimately weaken U.S. influence and global order.

Select Notable Quotes & Timestamps

• On law and power:
  “If there was ever a case where law would capitulate to power, this was it.”
  — Oona Hathaway (04:45)

• On accountability:
  “The thing that matters is the statement that you’re making… that accountability can come even if somebody doesn’t actually end up being convicted.”
  — Oona Hathaway (29:26)

• On ICC’s role:
  “Only an international court can do that. International courts don’t have to observe head of state immunity.”
  — Oona Hathaway (36:00)

• On the Global South’s caution:
  “Law itself can reflect power, that law can cover the acts of power and impunity against freedom and independence of people.”
  — Martin Kimani (52:16)

• On double standards:
  “We are seeing German Chancellor Olaf Scholz… traveling to, among other countries, South Africa, Brazil, India… and seemingly leaving these countries empty handed… unwilling to condemn the Russian action.”
  — Karen Landgren (66:23)

• On U.S. relationship to law:
  “We now have to care rather more than we used to… 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.”
  — Rosa Brooks (71:19)

• On enforcement mechanism:
  “The main way in which [international law] 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.”
  — Oona Hathaway (80:12)

Important Timestamps

• 03:58 — Oona Hathaway’s Breyer Lecture begins
• 22:40 — Double standards and Western skepticism acknowledged
• 27:57 — Interview with Constanze Stelzenmuller on ICC indictment
• 41:32 — Case for a special tribunal for the crime of aggression
• 49:08 — Panel discussion with Martin Kimani, Karen Landgren, and Rosa Brooks
• 62:56 — Karen Landgren on neutrality and Global South priorities
• 69:05 — Rosa Brooks on U.S. strategic interests, lawfare, and constraints
• 77:36 — Oona Hathaway responds on legal order, reform, and U.S. policy gaps
• 91:18 — Discussion ends; closing remarks

Tone and Takeaways

The episode is serious, frank, and global in perspective—characteristic of Lawfare’s “doubling down on seriousness.” There is no shying from the hard truths: the international system’s successes come with caveats, each legal innovation brings controversy, and Global South patience for Western legalism is limited by history and double standards. Yet the tone is not defeatist. Reforms, new coalitions, and creative uses of international law are portrayed as necessary—not just for Ukraine, but for the continued relevance of a rule-based order.

Summary Table: Key Insights by Segment

| Segment/Timestamp | Main Speaker(s) | Key Insights | |----------------------|-----------------------|-------------------------------------------------------------------------------| | 03:58 – 27:57 | Oona Hathaway | Legal order tested, robust institutional response, limitations of sanctions, double standards, UN General Assembly’s rising role, accountability mechanisms | | 27:57 – 47:05 | OA, CS | ICC’s unprecedented indictment, pitfalls and innovations in evidence, legal deterrence, call for a special tribunal for aggression | | 49:08 – 58:00 | Martin Kimani | African/post-colonial skepticism of legalism, prioritizing ceasefire before justice, caution about legal responses superseding peacemaking | | 58:01 – 67:24 | Karen Landgren | UNSC’s impotence not new, General Assembly’s role, double standards, Global South priorities, neutrality as non-alignment | | 67:25 – 77:36 | Rosa Brooks | U.S. embrace of law is strategic; fear of perpetual conflict; danger of rhetorical traps, uncertain outcomes | | 77:36 – 91:18 | OA, Panelists | Law’s indirect power, importance of visible consequences, need for honest reform, General Assembly and U.S. leadership challenges |

For Listeners Who Missed It

This episode presents a nuanced, multi-voiced exploration of how the Russia-Ukraine war—often seen as the gravest test since WWII for the international legal system—has nonetheless sparked renewal and reform in global institutions. It is equally attentive to the shortfalls—ineffective sanctions, double standards, and a justice-first approach’s cost to peace negotiations—and the opportunities: empowerment of the UN General Assembly, chances for legal evolution, and the kind of institutional change that may outlast the war. For students of law, global politics, or anyone seeking to understand the deeper currents beneath daily headlines, this episode is indispensable listening.