What was distinctive about this event is that it is not just the use of force for aggression. This is the use of blatant war crimes as a tool of naked aggression. The Russians started war crimes from day one, indiscriminate shelling from afar. We now see, in Bucha, that when they got up close, they tortured people; they bound them; in the case of women, they raped them; they summarily executed them; and they threw them into mass graves. This is one of the most blatant combinations of atrocity and aggression we have seen in many decades.
One of the most interesting things to me has been the response not just among international lawyers but among the press and others. When we got the provisional measures order, which by a vote of thirteen to two ruled that Russia should immediately suspend all military operations in the territory of Ukraine, the Washington Post, the journal of record in this town, called it a “largely symbolic ruling,” because “the International Court of Justice cannot enforce its own orders.”
But not a court in the world can enforce its own orders. When the Supreme Court of the United States ordered Richard Nixon to turn over the tapes, that was not a symbolic judgment. But as we said in the oral argument, in Marbury v. Madison, Chief Justice Marshall declared that it is emphatically the province and duty of the judicial department to say what the law is. And then when the Court has said what the law is, and declared certain conduct prima facie illegal, it then becomes everyone's duty to enforce it.
In short, we are not operating in a system of simple enforcement, where some police force arrives to enforce the local court's ruling. There will be those who help impose sanctions. There will be those who help corporations pull out of Russia. There are those who capture the ships of the oligarchs. There are those who help the refugees, et cetera.
What have we learned? International law is not usually self-executing, and this is what Ambassador Markarova meant earlier today when she said that international law and international lawyers must rise to the occasion. She said, “we are putting our faith in you,” meaning that this is a watershed moment for every single person in this room. This is not just about Russia versus Ukraine. This is about Russia versus the post-war global legal order, and every single person here should be thinking: “Am I doing what I can do to help fight for the international legal system that we have got?” Because for example, if China using its Belt and Road Initiative to buy off countries and get them to abstain on resolutions, and people here at this meeting are not doing anything about it, then the system will not work. But if you get an order that says that providing these kinds of aid to war criminals violates international law, then maybe China will back off. And the goal is extremely simple. Make Vladimir Putin an isolated outlaw in an interdependent world.
If you make it illegal, then you isolate him. When you isolate him, it will weaken his position and force him into diplomacy. When you force him into diplomacy, then the killing can stop. And then there is a possibility of a negotiated outcome, which is what law is supposed to help accomplish.
And if we as international lawyers cannot all contribute to that effort—there has not been a clearer example in my lifetime—then why did we go to law school? Why did we study international law? Why are we even at this meeting?
It is not about just thinking about it; it is doing what you can. It is about every single person thinking about “how can I use what I have learned, the contacts that I have, the forums where I can help to isolate and declare illegal what the Russians have done and start to find a way out of this slaughter for the purpose of aggression?”
Monica Hakimi
Thank you. Yanar, let me come to you. What is your perspective on the invasion, as someone who—and now I am quoting back to you the words that you said to me—“has been at the receiving end of war?” How do you see the Ukraine invasion relative to what has happened in your country, and how do you see its implications for international law and for the people on the ground?
