Below is my column in the Hill on the limits of international law in face of a “war of aggression” by Russia. Indeed, it will likely be international economics rather than international law that will drive the outcome of this conflict.
Here is the column:
As Russia continues its scorched-earth campaign across Ukraine, a rising number of governments and officials accuse Russia of war crimes. Those accusations largely concern Russia’s use of indiscriminate weapons on civilian areas and banned munitions. It notably does not include the unprovoked, unjustified invasion of a sovereign country. The reason is a long-standing blindspot in international conventions over the prosecution of “wars of aggression.”
If anything, Putin is more likely to be charged with how he prosecuted the war than he is for the war itself. In that respect, it seems like not much has changed since World War II on a legal level. Yet what has changed are the economic rather than the legal consequences of aggression.
Any war-crimes prosecution would occur many years from now, if ever. Russia is not a signatory to the International Criminal Court and holds a veto at the United Nations. Putin is a relic of the 20th century — a strongman who still believes in “victor’s justice,” by which the winning combatant defines what is a “just” war.
There is not a scintilla of support under international law for Russia’s attack on Ukraine; it has all of the legal justification of a drive-by shooting. However, violating international law does not mean accountability to international law.
When most people think of war crimes, they think of the Nuremberg trials following World War II. These tribunals were transformative moments that included U.S., British, French and Russian judges seeking to hold Axis leaders accountable for their crimes against humanity. Notably, the International Military Tribunal at Nuremberg declared that “to initiate a war of aggression 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.”
Judging from that statement, one would think Putin could be frog-marched before a Nuremberg-like tribunal if he is defeated in Ukraine. However, it is far more complicated.
“Aggression” holds an odd place in international law and what is called jus ad bellum, the law governing the use of force. For years, international law advocates have sought to give individuals, like Ukrainian citizens, viable claims as victims of aggression.
On Feb. 28, Karim Khan, the prosecutor for the International Criminal Court (ICC), announced the initiation of an investigation into potential war crimes in Ukraine. The ICC does have jurisdiction over the crime of aggression, following an amendment in 2018 to the Rome Statute. Yet neither Ukraine nor Russia are state signatories to the Rome Statute which, in 2002, established the ICC. Khan is relying on statements from Ukraine that it would accept the jurisdiction of the court for crimes committed within its territory.
There is another problem: The ICC cannot actually investigate the crime of aggression in Ukraine. The 2018 amendment specifically bars the exercise of jurisdiction over crimes of aggression by the nationals of, or on the territory of, a state that is not party to the statute. It can investigate war crimes and crimes against humanity, but other countries — including the United States — may be leery of broad interpretations of those crimes.
That is why countries are focusing on alleged crimes like targeting civilian areas, but those can be difficult to prove. The relevant articles governing attacks on civilians refer to “intentionally directing” or “intentionally launching” attacks on civilians or “civilian objects.” Again, many countries may feel uneasy about allowing a looser showing for such intentional acts on a battlefield. (There also are possible questions under the Geneva Conventions for both Russia and Ukraine.)
Many of us believe there is evidence of such war crimes. Moreover, as leaders like Vice President Kamala Harris have referred to war crimes, it may be difficult for countries to back out of such investigations or even to drop sanctions after a resolution of the conflict.
However, Russia has shown how such threats hold little influence on countries in war. That has not changed since Nuremberg. What has changed is the power of economic sanctions.
The globalization of markets has led to an interdependence which, as in the case of Russia, can threaten financial ruin for a sanctioned nation. Thus, economics — rather the law — may achieve the lofty goals of Nuremberg in creating future deterrents for wars of aggression. That may include China in its saber-rattling at Taiwan.
One of the most important economic theories is the Coase Theorem, dealing with concepts like transactional costs and perfect markets. Nobel laureate economist Ronald Coase famously used his theory to discuss the incompatibility of a neighboring farmer and a rancher. One of the most cited aspects of his work is that, in a perfect market, it does not matter which party has an “entitlement” or legal advantage to grow crops or raise cattle. In such a market, the outcome of a conflict will depend on which is more valuable — cattle, or crops.
In a strange way, the Russian invasion shows how the international entitlements or rights favoring Ukraine are, at least in the short term, immaterial to the outcome. In a perfect world (like a perfect market), Ukraine would prevail. Peace is more valuable. Yet, even with all of the legal entitlements and international rights resting with Ukraine, Russia still invaded due to the added costs for Ukraine and the world in opposing Putin.
Under the Coase Theorem, the less valuable activity can prevail because of the role of “transaction costs” (or the added costs of exchanges, trades and negotiations). No real markets are “perfect” given such additional costs.
However, it is the market rather than the law that may drive the ultimate outcomes in this or future conflicts. These have been unprecedented economic sanctions that are now adding transactional costs for tyrants. As a result, the Russian ruble has lost almost half of its value, its stock market cannot open, and virtually every major corporation has cut off the country.
Putin may be thinking strategically in the 20th century, but he is acting economically in the 21st century. Indeed, while he is unlikely to recreate the territory of the old Soviet Union, he is moving to recreate its disastrous planned economy. Faced with transnational corporations fleeing Russia, Putin is moving toward the failed Soviet example of nationalized industries and centralized economic planning.
It is possible, of course, to exist as a legal and economic pariah. You just have to be willing to reduce the Russian existence to the comparable subsistence level of your allies Syria and Iran. Even China recently refused to protect the crashing ruble in its own markets.
The costs are rising for Russia as actual trades and market transactions fall; it must try to sustain a major economy through surrogates like China. That is like trying to build a bridge while standing one that’s collapsing. The Russian economy is imploding, and Russia is rapidly approaching a disastrous loan default.
In the end, however, Putin cannot create markets through propaganda, or compel international lenders by force of arms. That is why markets may well force a conclusion to this conflict. Putin is threatening both peace and profits in his destructive actions. To use Coase’s construct, which is more valuable — Putin or peace? Putin already likely knows the answer, as he rushes blindly toward Kyiv and economic ruin.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
Why not turn Russian cities into nuclear wastelands, as a way to settle the score for what Russia has done to Ukraine?
The Russians should have just said they were saving the Ukrainians like the French, English and Americans have done in Afghanistan for centuries
Mespo likes to have his butthole scrutinized.
You seem angry or have become stuck in your anal stage. That or you’re 18 months to 3-years-old. I’m going with the latter based on your syntax. Oh and I’ve been insulted by and insulted the best. You’re a minor leaguer when it comes to that.
Why not do to Russia what Russia is doing to Ukraine?
Because we don’t want US cities to be nuclear wastelands.
We can do without sheet holes like Seattle, Portland, San Francisco, heck, the entire Left Coast and then there is term limits in Congress so drop a nuke on DC, and just for sheets and giggles, include NE states especially Martha’s Vineyard, Baltimore with their huge violent crime rates…just for starters
I’m not exactly sure where GDP fits into the equation when it comes to war. After all, GDP is a measure of money exchanging hands, not production. Most manufactured goods sold in the United States these days seems to be manufactured elsewhere, particularly China and Asia in general. Economic war is fine in theory, but it goes out the window once the shooting starts. Russia has its own industry and the capability to manufacture munitions and weapons, up to and including ICBMs. The Allies didn’t defeat Germany and Japan economically in 1945, we bombed the hell out of them!
semcgowanjr– you make a good point. What I was trying to get at is that people still need to eat and go places, both of which require money exchanging hands. As there is less and less of it, the citizens’ dissatisfaction will increase, the country will grow weaker and end up more unstable. Russia seems to be experiencing some instability already. Of course, all of this can be delayed by an economic injection from China.
Mespo should be investigated for espionage. He is a Russian spy.
Please do. I like the scrutiny.
Mespo “is a Russian spy.”
Good to know.
Can you get your hands on those Oswald files? And post them here (under a pseudonym, of course)?
Ukraine should not be coerced into staying out of NATO or being neutral. If this happens, then Putin has won.
It’s like forcing a woman to stay in a marriage she does not want to stay in.
All the tough talk of war crimes and international law, makes it harder for Putin to find a graceful exit. All the chest thumping and cries of “war criminal” only make it harder for Putin to accept anything less that total victory. What do we do if Putin withdraws? Say “just kidding about the war crimes thing” and carry on as usual?
The “adults” we were told would bring normalcy, have only brought chaos.
The only thing which will stop Russia, is 10,000 US troops on Russian border
All wars are economic. This one has an easy to see genesis. Russia used to own Ukraine. A slave state. But an important one,. All the warm water ports most of the food production. Russia had friends in Washington DC and waited for a new party election known as the socialists. NATO etc are too weak to do anything. The US population by half has refused to support it’s Constitution preferring the myth of socialism. Bottom line? Economics took a major hit as the US fell to fifth or tenth place.You got what you asked for and lost free honest elections as a bonus. SUCKERS!
International law is like God. People believe in something that doesn’t exist. Let’s go unjoin Putin.
“There is not a scintilla of support under international law for Russia’s attack on Ukraine; it has all of the legal justification of a drive-by shooting. However, violating international law does not mean accountability to international law.”
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Time changes everything. At this point, the invasion seems completely unjustified in international law. But what if it comes to light that the Ukrainians, using their 20-30 biolabs, was planning an imminent biologocal weapons attack on the Donbras region where the poplation is ethnically Russian to the tune of about 40%? Putin, learning of the attack, intervened to stop it. Would we then say that the “invasion” has all the “legal jusitifcation of a drive-by shooting”?
Yet another reason why waiting to for all the facts means getting the decision right.
One can me up “what ifs” all day long to create hypothetical justifications for anything. It is a worthless activity. There were no bio weapons work. Those were old Soviet labs that were being cleaned out.
Sammy:
That takes about 3 months. They’ve been there for 8 years. Draw your own conclusions. And unless you’ve got a line to Putin hypotheticals are all that you have for reasons, too.
Uh no. A bioweapons lab that was built an run using lax Soviet standards with crappy documentation? That would take a very long time to inventory, characterize, sterilize the items, and disinfect the entire building.
Eight years?
If world economies had not been weakened by pandemic and all world nations were sanctioning Coase theorem would work. That is not the case. There are countries such as India, China, UAE, Venezuela. Pakistan, Mexico and others that will not participate. There is also a backlash to sanctions and Americasnsd are already feeling it.
Diplomacy through trade relations.
President Trump had great success, but was mocked. Especially by a State Dept, that has massive amounts of respect, but never any results. State Dept employees are the snobs of the elite upper crust. Credentialed but rarely accomplished.
Rembember When President Trump sent N Korea, a glossy presentation about what the Nation would look like of it were a tourist destination? Nothing but mocking.
“There is not a scintilla of support under international law for Russia’s attack on Ukraine;…”
In March 1993, the US, UK, France, Germany and Russia agreed that Ukraine would be a free and independent state provided they did not join nor be entertained to join NATO. The west reneged. Play stupid games, win silly prizes.
Ukraine, NOT a member of NATO
There is not a scintilla of support under international law for Russia’s attack on Ukraine;
Lawyers will have a field day with all of the torts and wrongful deaths and injuries happening in Ukraine right now, especially because all of it is being
recorded and documented with phone cameras.
Yes, yes economics. This administration better go back to the Trump policies. Pretty soon Fauci and the CDC are going to recommend placing a mask over your eyes when you’re filling up at the pumps.
There is another Option as well….engaging the Aggressor and securing its abject defeat….occupying its territory….hunting down the Perpetrators…bringing them before a Tribunal and upon conviction of War Crimes…..execute the sentence up to and including Hanging them till Dead….as happened in WWII. Knowing how the Russian Communists deal with Losers….our involvement will probably have to go no further than securing the defeat of Russian Forces in Ukraine and forcing them to withdraw back into Russia. That Defeat and humiliation of its Military Forces shall result in Regime Change with a strong possibility of some fancy State Funerals for those culpable for that defeat.
“There is another Option as well….engaging the Aggressor and securing its abject defeat….occupying its territory….hunting down the Perpetrators…bringing them before a Tribunal and upon conviction of War Crimes…..execute the sentence up to and including Hanging them till Dead….as happened in WWII.”
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Robert DuVall couldn’t have said it better:
You are all assuming a conviction. Some were found Not Guilty at the War Crimes trials.
A process that would cause more loss of civilian life and ward crimes charges for Ukraine as well. Investigations of neo-Nazi groups that Ukraine made part of the nation’s fighting force. Azov and Aidar battalions. All this bloodshed since 2014 because the legally elected president would not sign on to the EU. I fil to see the fighting for freedom when the EU places laws on nations.
To put an economic perspective on things, according to Forbes in 2018 the gross domestic product of Texas was $400 billion larger than that of Russia. The GDPs of New York and California were even larger. The per person GDP of Russia and Texas respectively were $9,000 and $58,000. Assuming these ratios still are roughly accurate, it is hard to imagine that Russia can sustain this war against a focused economic attack, especially when its oil revenue is severely cut. Of course, this does nothing to ease the pain and suffering of the Ukraine people and the Russian soldiers.
Putin will blame Biden’s sanctions, Biden will blame Putins price increase, for everything. With FB and Twitter et al blocking “misinformation and disinformation” and Russia blocking FB and Twitter as “extremists and disinformation”, both supported by their supine press, both societies will suffer.
Each will blame shift until privation becomes the new normal in BOTH countries.