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.