Rule of Law in the Time of War

The war that has been ravaging Ukraine since early 2014, and especially the brutal full-scale invasion of 24 February 2022, is a tragedy whose consequences will span generations. It is also an existential threat to the rule-bound international order: never since World War II has aggressive interstate war been considered a legitimate way to assert territorial claims. So, what is to be done?

There is no secret in how wars are waged and won. Ukraine’s resistance comes at great cost, and the Western world is above all else expected to provide—short of getting directly involved in the conflict—continuous and unwavering military, technological and economic support. That much is clear. But the basic premise of this issue of the Revue européenne du droit, as always, is that serious thought should also be given to the role of law in this crisis: What does the war in Ukraine do to the European and international rule of law? What room for action is there for legal practitioners faced with such blatant aggressions? The articles in this volume point to several avenues for legal action that warrant careful consideration, both while the war is raging and after its (hopefully swift) conclusion.

War is an extraneous disruptive factor that domestic legal systems have to tame without giving up their own constitutive rule of law principles. Consider economic sanctions. That this should be the principal lawfare tool for the US and Europe is unsurprising: once inconceivable for non-belligerents, sanctions have now become the main means of enforcing the international status quo. Still, the breadth of the latest restrictive measures imposed by the EU and the scope of their application—including their extraterritoriality—is unprecedented, if still clearly constrained by the EU’s own overriding economic interests [Bismuth]. Leveraging the economic clout of the sanctioning jurisdiction, the primary objectives of restrictive measures are uncontroversial: to create high-powered incentives for powerful individuals to pressure the aggressor state into a change of course, or at least to financially hinder the illegal war effort. The effective reach of the underlying policy is even wider. Countless European businesses voluntarily sever connections with the Russian market, often reflecting the normative expectations to which large companies are increasingly subject [Cazeneuve & Mennucci]; sometimes, under the mounting risks of litigation instigated by private parties and NGOs, as it is increasingly the case in France [Belloubet, Rebut & Pascal]. Notwithstanding, the effectiveness of sanctions is yet to be proven; arguably, their design could be significantly improved by paying closer attention to the internal organization and incentives of the Russian Federation’s kleptocracy and the private militias it relies on [Zapatero].

If restrictive measures fail in their primary objectives, the question is whether they could legitimately morph into compensatory measures. Could frozen Russian assets potentially be confiscated for the benefit of war victims or Ukrainian reconstruction? The mere prospect raises obvious challenges for the rule of law principles. Yet, as painstakingly demonstrated by our authors, these challenges may be surmountable regarding state-owned assets [Moiseienko]. Indeed, we may even be witnessing the coming of age of an international norm on this matter [Bismuth]. The idea faces more challenges regarding private assets belonging to sanctioned individuals: any proposal in this respect should pay careful attention to due process and human rights issues [Burnard & Naseer].

This leads to the second prong of reflection on the war’s legal implications: accountability for the atrocities that are now perpetrated. Since the first days of the invasion, the Ukrainian government has resorted to all the legal remedies at its disposal. At first sight, these efforts may seem superfluous: wars are not won before international courts, and the enforcement of any of their rulings is all but illusory for the foreseeable future. But the expressive and symbolic functions of well-established international norms have great strategic value. Indeed, even the Russian Federation’s government has repeatedly paid them lip service, from the principle of self-determination supposedly at work in the Eastern regions of Ukraine [Pustorino] to claims of (preventive) self-defense [Sorel]. Understandably, the Ukrainian government seeks to command a rapid consensus within the international community on the facts of the illegal aggression, war crimes and human rights violations committed since then—even if the Russian Federation’s leaders and other perpetrators are unlikely to be brought to justice in the near future. This raises the stakes for the design of appropriate accountability forums, an issue discussed by several of our authors. Multiple mechanisms have been activated to document the crimes, but the existing institutions may fall short of the job description regarding passing a final judgment. The design of an ad hoc court can draw on a long international experience in similar situations; undoubtedly, its long-term legitimacy and the efficacy of its rulings will hinge on its wide representativeness and international character [D’Alessandra]. The first step toward post-war justice will be establishing an authoritative truth about the events unfolding and the crimes being committed—by any of the parties involved in the conflict—in a forum with impeccable credentials [Calvet-Martínez]. But historical precedent teaches that the subsequent path to viable social and state institutions, healthy collective identities, and eventual reconciliation in Ukraine and Russia—and some of their battered post-Soviet neighbors—will be long and strenuous [Baylis].

The big(ger)-picture question is what the war in Ukraine means for the rule-bound international system. In a sense, the Russian Federation’s actions are just the latest in a long list of affronts to the apparent consensus on the illegality of aggressive war since 1945 (if not since the Kellogg-Briand Pact of 1928), too many of which are the deeds of Western powers and their allies. Nonetheless, it seems too early to dismiss international law altogether. Even if much remains to be done, the international community has generally reacted swiftly on issues such as assistance to displaced civilians and refugees [Mooney]. On others, the war highlighted the commitment of many states to existing principles [Chachko & Linos] and may give much-needed impetus for the reform of some of the most anachronistic features of international law [Pellet]. The current efforts within the UN General Assembly to curtail the use of the veto right by conflicted permanent members of the Security Council may not be the sweeping breakthrough many hope for, but they are a good example of a pragmatic (albeit incremental) improvement that can be realistically achieved in the near future [Peters].

But these multifaceted ramifications are merely one part of the complex web of relevant strategic and geopolitical factors that governments consider in their response to the Russian Federation’s aggression, many of which are thoroughly analyzed by our authors [Borell; Albares; Hollande]. Perhaps one of the most consequential—yet easily overlooked—is the impact that the war has on the EU’s ongoing energy transition [Viñuales], a topic to which the Revue européenne du droit will return at length in its next issue. Until then, we hope that the contributions collected in this volume will be useful in making sense of one of this century’s greatest human and geopolitical catastrophes and in preparing its aftermath.