Ukraine: will “international law matter a lot down the road”?

Erik Voeten writes in The Monkey Cage that “international law and institutions look pretty weak now, but they will matter a lot down the road.” Let’s take a look at some of these institutions.

The Council of Europe and The European Court of Human Rights. If Russia commits human rights violations in Ukraine, the victims can brings claims before the ECHR. Russia has already lost many cases before the ECHR, paid the tiny awards, but has not brought its laws into conformity with the ECHR’s interpretations of the European Convention on Human Rights. Indeed, Russia has steadily deprived its people of their freedoms since it joined the Convention in 1998. The Council of Europe “enforces” the Convention and the Court’s judgments but actually has no coercive power, as Erik notes, and history amply demonstrates.

NATO. NATO is an institution, of course, but not in the sense that law professors mean. It does not have any legal powers. It is simply an alliance of countries. NATO can certainly put pressure on Putin, far more than any legal institution like the ECHR. But Ukraine is not a member of NATO, and NATO’s own charter would thus not compel countries to come to its aid. It seems unlike that NATO will become a vehicle for countering Russia’s move to Ukraine because it’s a military alliance and no one wants to go to war with Russia.

The laws of war. Erik thinks the laws of war will influence the way Russian soldiers prosecute military hostilities if such hostilities occur. Maybe if the Ukrainians put up token resistance, but not otherwise. Russia committed numerous atrocities–the clearest possible violations of the laws of war– during the two Chechen Wars. What reason would they have for acting differently this time around if Ukraine put up stiff rather than token resistance? And don’t say those were internal conflicts and therefore not governed by the Geneva Conventions. Russia (unlike the United States) ratified Protocol II in 1989, thus subjecting itself to the laws of war for “non-international” armed conflicts. If it can disregard this international treaty with impunity, why couldn’t it disregard the rules that would apply to the interstate conflict with Ukraine?

International Criminal Court. Russia is not a member of the ICC; Ukraine seems to be thinking about joining it. But the fact is that the ICC is an extremely weak institution, and if it ever hands down any indictments, this means at most that some Russian soldiers, officers, or politicians will be unable to travel to European countries. If you read David Bosco’s fine book on the ICC, you will see that even the west would not welcome the ICC blundering into this conflict.

The European Union and multilateral sanctions. Erik is right that the EU could imaginably exert meaningful economic sanctions on Russia. I don’t know whether this is plausible; maybe it is. But the main point here is that the EU, like NATO, is not a legal institution but an alliance (or something closer to a confederation) that may be able to aggregate the power of its members so as to counter Russian influence.

Erik is right that foreign countries, acting individually or in cooperation, can make Russia pay a price for violating international law. Whether or not they do so depends on their power and interests. If they are divided, or don’t care much about Ukraine, then Russia will get away with its illegal act. I am skeptical that any free-standing international legal institution with the responsibility for enforcing international law will “matter a lot down the road.” But only time will tell.