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Republican hostility to international law has hurt the United States

Associated Press/Phil Nijhuis
Candles are set in the grass with the text “Putin Come Out” in front of the International Criminal Court in The Hague, Netherlands, on March 7, 2022. A representative for Kyiv urged the United Nations’ top court to order Russia to halt its devastating invasion of Ukraine.

The most fundamental war crime is to make war. Article I of the 1928 Kellogg-Briand Pact, or the Pact of Paris, binds its signatories to declare that they “condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another.” Article II commits the parties never to deal with “any dispute that may arise among them, except by pacific means.”  

The USSR was not invited to be an original signatory of the Paris pact, but Grigori Chicherin, Joseph Stalin’s foreign commissar in the 1920s, was skeptical about empty words. His successor, Maksim Litvinov, sought collective security and worked to include the Soviet Union in the family of nations. Litvinov persuaded eight neighboring states to sign what became known as the Litvinov Protocol, which became operative in March 1929.

Though the League of Nations was established in 1920 at the end of World War I, the Soviets did not join the League until 1934 — one year after Adolf Hitler’s Germany withdrew. But the Litvinov Protocol was registered with the League as the “Protocol for the Immediate Entry into Force of the Treaty of Paris of August 27, 1928, Regarding Renunciation of War as an Instrument of National Policy.” The initial signatories of the Litvinov Protocol included the Soviet Union, Poland, Latvia, Estonia and Romania. They agreed to put the Kellogg-Briand Pact into effect immediately, without waiting for other signatories to ratify it.

Four other countries later adhered to the protocol: Lithuania, Finland, Persia (Iran) and Turkey. Ukraine could not sign on to the Protocol because it was then a union-republic of the Soviet state. It lacked its own foreign ministry until 1944, when Stalin created the image of an independent Ukraine and Belarus so they could become founding members of the United Nations and give the Soviet delegation two more votes in the General Assembly.

All this means that Russian President Vladimir Putin’s invasion of Ukraine has violated not only the U.N. Charter and the Kellogg-Briand Treaty outlawing war, but also the Litvinov Protocol that was created and signed by Stalin’s foreign office. Do these long-ago commitments still bind the Kremlin? Yes. In 1991, the Russian Federation claimed to inherit all the rights and duties of the former Soviet Union.  

Critics complained that the Paris pact provided no mechanism for its enforcement. It did not prevent aggressive wars in Eurasia or the Asia-Pacific. Still, the Nuremberg Trials and Tokyo War Crimes Trial tried and executed the German and Japanese leaders believed to have been responsible for starting World War II, a crime against peace. By the logic of Nuremberg, Putin should be arrested if he enters the jurisdiction of any U.N. member and brought before the International Criminal Court, or a special tribunal, to adjudicate Russia’s war crimes in Ukraine. The Biden administration has said it is compiling information about those crimes for possible prosecution in European courts.

But there is a hitch. Neither Russia nor the United States recognizes the International Criminal Court. The Clinton administration helped to establish the ICC, but did not seek Senate ratification, and George W. Bush later “unsigned” the court’s founding document. The Bush White House rejected the ICC, it said, to protect U.S. soldiers from frivolous claims, but the administration also may have worried that top officials — including Bush, Henry Kissinger and Ronald Reagan — could be charged with war crimes and brought before the court. 

This approach surrendered U.S. influence over the ICC, thus requiring sustained brinkmanship to protect U.S. autonomy, and curtailed America’s ability to bring war criminals to justice in the future. In this, as in some other realms, Republican myopia has kept the United States from using international law to serve its own interests.

This pattern dates to the 1920s when Republican senators — ignoring William Howard Taft’s calls for a League to Enforce the Peace — kept the United States from joining the League of Nations, gutting its capacity to stop Japan’s Tōjō Hideki, Italy’s Benito Mussolini, or Hitler.

Having attacked the leftist Sandinista government in Nicaragua, the Reagan administration in 1985 renounced the U.S. commitment to the compulsory jurisdiction of the International Court of Justice, thereby weakening the foundations of world order. Republicans also kept their country from approving the law of the sea, invoked now against Beijing in the South China Sea; human rights laws to protect women and children; and climate protocols to help curtail global warming. 

Bush unilaterally abrogated the 1972 Anti-Ballistic Missile (ABM) Treaty, a cornerstone of strategic weapons arms control. Donald Trump destroyed what was meant to be another foundation for arms control and peace in the Middle East: President Obama’s 2015 Iran nuclear deal, the Joint Comprehensive Plan of Action (JCPOA). Trump’s withdrawal from the Paris climate agreement set a negative example for China and other polluters to continue endangering the health of people around the world, including Americans.

Ukraine initially did not sign the International Criminal Court’s statute, but did join the ICC in 2015 after Putin annexed Crimea and invaded Ukraine’s Donbas region. So, Kyiv now could bring charges against Putin to the court. British politician Sajid Javid has said the United Kingdom would help compile evidence.

If the United States wants to leverage its clout in global affairs, it should support world law instead of poking holes in it.

Walter C. Clemens is an associate with the Harvard University Davis Center for Russian and Eurasian Studies and professor emeritus of political science at Boston University. His books include “Can Russia Change?” and “The Republican Virus in the Body Politic.”

Tags Adolf Hitler International Criminal Court Joseph Stalin Russian invasion of Ukraine United Nations Vladimir Putin

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