Putin tried to break the international order — it will hold him accountable
Russian President Vladimir Putin has a history of manipulating international law and institutions to advance his imperial ambitions and break the post-World War II order. After the failures to stop him in Georgia and Crimea, Putin has underestimated their power and resilience. His brazen breach of the most fundamental rule prohibiting aggressive war has backfired. Today, the post-WWII international order is stronger than ever, and international law will hold Putin to account.
Law has been but a toy for Putin since he studied it in St. Petersburg during the Soviet era. In 2008, he sent Russian troops to Georgia, claiming the legal right of self-defense in response to non-existent Georgian aggression. He justified his 2014 annexation of Crimea on a twisted version of the international law rule self-determination — the same rule that gave Kosovo, East Timor and South Sudan their independence. His current conquest similarly distorts the law yet again. He recognized the separatist Ukrainian regions of Luhansk and Donetsk as independent nations and entered into “treaties” with their self-appointed leaders, to manufacture an “invitation” for Russian troops to enter Ukraine. He was well on his way to breaking the international system.
Invading Ukraine, however, is proving to be the step-too-far that the international community needed to reboot the international order and hold Putin to account. Precisely because of the flagrancy of Putin’s violation, the world has emerged united behind the United Nations Charter. Russia is surrounded. The sanctions package is the broadest, most robust in history, cutting Russia off from the international banking system, breaking the ruble, prohibiting the import of crucial technologies, freezing the assets of Putin and his allies, blocking Russian use of European Union (EU) airspace, and closing it off from the Bosporus.
These sanctions are possible because of Putin’s disregard for international law. Politically, the gravity of his breach fundamentally transformed countries, such as Germany, that last month shunned foreign policy activism but this week dispatched weapons to Kyiv. Legally, Putin’s violation allows countries to take countermeasures against Russia that otherwise would be illegal — from denying Russia use of their airspace to cutting it off from the SWIFT financial clearing system.
Last month, the post-WWII international order appeared to be decaying in the face of internal discord and a new Sino-Russian alliance of autocracies. Today, however, it is that new alliance — not the Western international order — that appears at risk. China’s Xi Jinping has been caught off guard by global unanimity, unable to either condemn or condone Putin. While the post-WWII order may have been cracking, Putin unintentionally gave it new life.
The resilience of the international order so evident this week is empowering international law to hold Putin accountable. Russia’s invasion is being challenged at the International Court of Justice. Enterprising lawyers in the Ukrainian Ministry of Justice filed a case this week in The Hague, arguing that Russia has violated the Genocide Convention by falsely claiming a genocide in Ukraine as a pretext for war. Although the court moves slowly, it likely will issue Preliminary Measures in favor of Ukraine.
Putin may well find himself prosecuted personally at the International Criminal Court. The court, established in 2002, ensures that the “most serious crimes of concern to the international community … not go unpunished.” While Russia has never joined, Ukraine has accepted its special jurisdiction, subjecting Putin — even while president of Russia — to prosecution for crimes in Ukraine The ICC Prosecutor has decided to open an investigation of the emerging evidence of Russian war crimes, including the use of cluster munitions and the targeting of civilians.
Foreign investors in Russia and Ukraine may be able to seek financial compensation through international investment law. The 1988 Russia-Ukraine Bilateral Investment Treaty opens the door to liability that could run to billions of dollars. Ukrainian investors, including the Ukrainian state-owned energy company and a Crimea-based bank, brought such cases in relation to the annexation of Crimea. Many more could follow, subjecting Russia to billions of dollars in damages.
As a legal consequence of invasion, Russia will find itself outcast or expelled from critical economic and security institutions. In 2014, Putin’s political repression led the G-8 to uninvite Russia, thereby transforming itself into the more effective G-7. That offered a precedent for moves this week by the Organization for Economic Cooperation and Development and the Council of Europe to push Russia out. In the weeks ahead, the UN Human Rights Council — of which Russia is awkwardly a member — may seek its expulsion. The UN General Assembly, which is not subject to Russia’s veto power, likely will adopt a resolution of condemnation, isolating Russia even further. While Russia’s seat on the Security Council is enshrined in the UN Charter, might its invasion present the international constitutional moment needed for Security Council reform that excludes Russia?
By abusing international law, Putin tried to break the international system. The collective global rejection of Putin’s invasion of Ukraine has actually made that system stronger, unifying it in a shared commitment to sovereignty, rights and law. Putin unwittingly has given the international order exactly what it needed to hold him to account.
William Burke-White is a professor of law at the University of Pennsylvania Law School, a nonresident senior fellow with the Brookings Institution, and was a member of the Secretary’s Policy Planning Staff, U.S. Department of State from 2009-2011.