International law sometimes seems to be a forgotten authority among commentators of the Russian war against Ukraine. Often barely mentioned during Russian atrocities in Chechnya, Georgia and Syria, it is nevertheless the ultimate guide that should underpin our judgments and our ambitions. The Russian aggression was in part made possible by the slothfulness of Western governments during previous Russian operations. It requires them to change some of their narratives about the current war.
It is common for some so-called strong minds to treat international law with a certain irony. They see the international arena as an arena of power relations, lacking a real police force and where the application of the law would be de facto optional because of the prevalence of the winners. The strongest would impose their norms and make them prevail over the vanquished. The law would have to be adopted by force and force would become justice. We have even seen certain revisionists consider the Nuremberg International Military Tribunal in this way, as it only enacted the law of the victors. This relativism of the law is also often highlighted by the Russian aggressor, who aims to put down the norms enacted mainly in the aftermath of the Second World War. The perpetuation of massive war crimes and crimes against humanity in Chechnya and especially in Syria, in full sight, is an expression of this revisionist intention. Some people, without agreeing with the Kremlin, prefer to read the Russian war in the light of the conflicts of previous centuries, as if the international norms that are supposed to prevail today had suddenly become obsolete.
However, in the case of the Russian war against Ukraine and the genocidal project on which it is based — it is enough to read Putin’s text and see the deliberate and planned massacre of civilians — two fundamental principles of international law are at stake: the law of borders and what is known as international humanitarian law in its penal dimension, in other words the punishment of war crimes, crimes against humanity, the crime of genocide and the crime of aggression. The application of the rules that govern them is not an option or, to put it differently, a matter for negotiation. It is an obligation. International law is not a possible object of transaction or, if it were, it would mark both its defeat and that of the democracies. Neither borders nor penalties can be compromised. No state can give itself the right to do so.
Some speeches of even the most well-intended politicians towards Kyiv may be open to such criticism.
We can mention three categories. The first is the call for mediation. Apart from the fact that one could not decently imagine that this would come from states with an ambiguous attitude towards Ukraine, or even dictatorial states that hardly respect the principles of international law, such a mediation action could lead to questioning the law of borders or international criminal law. It would bring the world into a zone of uncertainty about the principles that democracies consider intangible. Moreover, it would be based on the implicit idea of equality between the two parties to the conflict, rendering the distinction between the aggressor and the aggrieved party inoperative, without whose understanding the facts themselves would have no value. This relativistic equalization would already be a terrible notch in the law.
The second type of discourse is captured, so to speak, by the formula, used perhaps with the best intentions in the world, by Emmanuel Macron, which consists of saying that it is up to Ukraine alone to determine when it will be willing to negotiate and on what: “It is not up to us to decide for Ukraine, we would not have accepted it from our allies.” He also stated at that time that “at some point, it will be in the interest of Ukraine and Russia to negotiate”. The French President also insisted: “The issue of Ukrainian sovereignty and territorial integrity is a matter for the Ukrainians”. At the same time, he reaffirmed his full support for Ukraine and the principle of its sovereignty and territorial integrity. This position does not call into question French support for Kyiv, which has been further intensified with new arms deliveries, but it raises questions of international law. Let’s take the absurd hypothesis that the Ukrainians decide to negotiate, which both President Zelenskyy and the vast majority of the Ukrainian population reject, should the Western democracies be satisfied? The answer is no: international law governing borders would prevent this. The same applies to the punishment of the imprescriptible crimes committed by the Russians in Ukraine. Could one even say that territorial negotiations would be possible the day Ukraine has reconquered the territories invaded since February 24, 2022? Here again, there can be no question of this: one cannot cut up the sovereignty of Ukraine by giving special consideration to this or that territory, in particular Crimea, which is Ukrainian by law. When there is an aggressor and an aggressed country, the only “red lines” that matter are not those that the criminal claims to define, but only those of the victim and, therefore, of the law. In reality, a half-victory for the Ukrainians would still be a victory for the Kremlin: if Crimea, or even parts of Luhansk and Donetsk, were to remain under Moscow’s control, it would mean that Putin would have obtained part of what he was looking for. He would certainly not have been able to destroy Ukraine entirely and put one of his henchmen in charge, but the power grab begun in 2014 would still have partly paid off. He would have succeeded in revising the borders by force and ultimately led the Allies to endorse it. He could also continue his crimes (enforced disappearances, torture, deportations) in the territories he still occupies. This is why any form of allusion to territorial negotiations must be entirely banished from the rhetoric, as well as any exclusive insistence on February 24. In a way, this narrative suggests that the problem is entirely Ukrainian and not universal. Ukraine is asked to defend itself and is helped to do so, but by not intervening and by leaving the Ukrainian army alone to defend our common freedoms and principles, the question of law is parochialized, so to speak. From being international, it would then become purely local. The collective responsibility for assaults on the law is made primarily a national responsibility. One is certainly aware of the global problems of security, hence the military aid, but one separates them from the legal question.
A third, more ambiguous type of statement consists in focusing exclusively on Ukraine when we deal with the Russian question. The Russian war against Ukraine has led, for reasons of understandable urgency, to concentrate all the talk and efforts on the current high-intensity war. But to limit ourselves to questions of international law, can we forget that 20% of Georgian territory is still occupied, that attacks on civilian populations in Syria continue to this day, that Wagner’s mercenaries are still committing massive crimes in some African countries, that Moldovan Transnistria is still under Russian control and that with Moscow’s support Alexander Lukashenka is keeping Belarus under an iron fist after the fraudulent elections of 9 August 2020? All these violations of international law cannot go unpunished. Therefore, to imagine that, after Ukraine’s total victory, we could follow a quiet course of events with today’s Russia would be not only to put off the threats it poses to collective security, but also to accept the fait accompli. When I mentioned the need for a total defeat of the Russian regime, which goes beyond the victory in Kyiv, it is also for this reason. Neither the violation of borders nor the war crimes and crimes against humanity committed by the Russian regime can be written off.
It also remains for Western leaders to look back critically at their past mistakes and to understand that forgetting the law was the first manifestation of them. They have too easily erased from their memory the crimes committed in Chechnya and in Syria, sometimes to the point of imagining that they would be able to have peaceful relations with the head of the Kremlin even though they had already been committed. They have drawn a line under Abkhazia and South Ossetia as well as Transnistria. Beyond the verbal condemnations and the non-recognition of Crimea as Russian, the sanctions were characterized by great weakness, as were those following the occupation of part of the Donbass in 2014 and 2015. They pretended to think that diplomacy could settle offenses against the law.
Without doubt, we should talk about the different dimensions of international law to be respected. This law is always active and imposes a duty to act. This is the case when a crime of genocide is established, which applies directly to Ukraine in the face of the deportation of children by Putin’s government and, more indirectly, because of the genocidal intent of the Russian war. This is also true in the context of the responsibility to protect (R2P), which was radically undermined long before 2014 in many conflicts. How can we not wonder about the overwhelming responsibility — I would be inclined to call it guilt — that we, the democracies of the West, have for not saving many more Ukrainian, and before that Syrian, lives in Mariupol and elsewhere and for continuing, in fact, to allow massive massacres to be committed because of our lack of intervention and the insufficiency of our arms deliveries? Are we going far enough in the scope of sanctions? Are we already doing everything in our power to put in place the conditions for ruthless international justice that is as complete as possible? Can we be totally credible in this desire when some, like Chancellor Olaf Scholz, still seem inclined to spare the future relationship with a Russia that is finally unchanged? We cannot in fact separate this duty to intervene from the criminal dimension of international justice. A military commitment that is still too limited — with the hope that it will be completed in a few months — indirectly raises the question of our real desire for justice, because we know that it will also require coercive means. If we finally manage to be totally coherent and resolute on these two points in Ukraine, this could augur well in other parts of the world where our attitude has been partly similar. This could also update the doctrinal framework of the “community of democracies” or “alliance for democracy” which is struggling to emerge from limbo.
Western leaders will have to understand that, historically, their actions will be judged under the law, not because it will give them a moral license, but because it will indicate their seriousness in protecting and defending democracy. There is no casuistry of the law, that is, there are areas where it can be dispensed with and others where it must be upheld. Each infringement of the law weakens the whole edifice. It undermines its coherence as well as its legitimacy. It is also the breach into which deadly threats to our security proliferate.