In a recent Editorial Comment in the American Journal of International Law (AJIL), Ingrid (Wuerth) Brunk and Monica Hakimi claim that the Russian invasion of Ukraine challenges the international legal order in a way we have not seen since World War II. The main reason for this, they argue, is that it entails a rejection of ‘the foundational principle of the post-World War II order’, namely, ‘that international boundaries may not be changed with force alone’ (at 688). A second connected element they highlight is that the invasion lacks, ‘baked within it, a limiting condition to explain why the use of force might be justifiable here but not in other locations where people continue to harbour historical grievances about the internationally recognized borders that they have inherited’ (689). Putin’s rejection of an independent Ukraine, they conclude, goes against the ‘holy grail’ of the post-World War II international legal order. […]
In short, it seems to me that Brunk and Hakimi got it backwards. Namely, if we are concerned with preventing war (on the grounds of all the wrongful suffering and destruction it brings about), the main problem seems to be the insufficient condemnation the US-led invasion of Iraq received by the international community in contrast to the numerous sanctions and outcasting that Russia received. In this context, claiming that the Russian invasion of Ukraine is different in kind seems to me the wrong move, for it would indicate that US-led use of force in Iraq need not be as strongly condemned. If their argument is based on some type of slippery slope, destabilization, or at least a weak causal connection between the violation and the future conduct of states, it is far from obvious that the Iraq invasion did not have a significant part in eroding the authority of the prohibition to use force in ways that may have facilitated the invasion of Ukraine (as argued, e.g., by Nico Krisch here). The lack of censure and institutionalised reactions vis-à-vis Iraq may have weakened the fundamental jus contra bellum norm in a similar way than Russia’s implausible justifications to use force against Ukraine. Läs artikel