Dublin, Dec 5 (The Conversation) Ukraine finds itself at a critical crossroads with two rather grim scenarios. For peace to be brokered with Russia, Ukraine will likely have to cede some of its territory. This would reaffirm that, in the 21st century, European borders can once again be shifted by the force of arms. If an agreement remains elusive, the war will continue with no end in sight.
No matter the outcome, the enforcement of core international laws looks uncertain. Traditionally, such principles would reject any territorial gains made through warfare and pursue legal action against those responsible for war crimes. Yet, it seems international relations have regressed to a state where raw power dominates.
The peace discussions have highlighted a willingness within parts of the US government to grant Moscow significant concessions, including avoiding accountability for war crimes. This development places Europe, particularly neutral states like Ireland and Austria, under pressure to avert what may become a severe blow to international law post-Cold War.
To gain perspective on the current state of international law, it's insightful to examine the historical evolution of warfare regulation. Hugo Grotius, a pioneering Dutch legal thinker from the 16th century, was foundational to discussions on the laws of war. He asserted that only "just" wars, those fought for self-defense or property rights, should be considered legal. However, after years of deliberation on what constitutes just and unjust causes for war, Grotius became disheartened. He concluded that every state would always justify its wars as righteous, potentially escalating violence.
Grotius noted that from an outside perspective, discerning the true reasons behind a conflict is challenging. When external powers choose sides, they often feel compelled to support the state they perceive as being morally right, which in turn could draw more nations into the fray. Eventually, Grotius came to see war and its results as an unfortunate yet accepted reality, a view that dominated for centuries according to Yale law professors Oona Hathaway and Scott Shapiro in their 2018 book, "The Internationalists."
The late 19th and early 20th centuries marked attempts to regulate war, including the formation of bodies like the International Committee of the Red Cross, which provided medical care to soldiers. Nevertheless, the belief in the legitimacy of warfare endured. Later endeavors seemed to challenge Grotius's logic, such as the 1928 Kellogg-Briand Pact in which 15 nations pledged not to use war for dispute resolution, along with the UN Charter of 1945 and the establishment of the International Criminal Court (ICC) in 2002.
Though ultimately unsuccessful, the Kellogg-Briand Pact asserted that war should be renounced as an "instrument of national policy." In 2018, the ICC made it a crime to "plan, prepare, initiate or execute" acts of aggression, with the hope of deterring invasions like Russia's incursion into Ukraine.
The Return of Grotius Given the current state of negotiations between Russia and Ukraine, one might wonder if there's a resurgence of Grotius’s idea that military conquests, once solidified, will be accepted. Could this posture be more pragmatic, recognizing Russia’s military might rather than extending – and possibly widening – the conflict? For a time, such conclusions seemed unwarranted. As Hathaway pointed out a year into the war, Russia’s blatant disregard for international law was indisputable. Yet, she underscored that the law was far from helpless.
Sanctions, extensive military aid to Ukraine, and ICC arrest warrants against Vladimir Putin and key Russian figures demonstrated that international law could retaliate. While preventing conflict altogether is challenging, coordinated international efforts can impose significant penalties on countries like Russia for waging aggressive wars.
However, maintaining this stance is increasingly challenging. The original 28-point peace plan unveiled by the Trump administration in November includes provisions that accept Russian territorial gains, lift sanctions, and grant amnesty for war crimes. Such a resolution resembles a Grotian outcome where weaker states can be attacked without repercussions, and Europe, preferring to avoid a broader conflict, has limited options. Such a compromise would essentially reward aggressors without any consequence, sending a perilous message in an already unstable global arena.
Whatever the peace talks yield, Ukraine will require steadfast European support to secure the remainder of its territory. Should a peace treaty be finalized, Europe must establish sufficient deterrence to prevent Russia from attempting further territorial expansions. With diminishing U.S. support, Europe must assume the responsibility of imposing consequences on Russia for its aggressive campaign once a peace deal is realized. This might involve utilizing frozen Russian assets to aid Ukraine’s reconstruction and demanding legal accountability.
Regardless of whether a deal is reached, these scenarios necessitate a substantial overhaul of European security and defense policies, something repeatedly aspired to but never actualized post-1945. As part of this effort, EU nations like Ireland and Austria, which uphold military neutrality, must clarify their contributions. While there’s room for neutral states within a broader European security framework, the foundation must be unity among European nations in rejecting the notion that Russia’s actions will go unpunished and that international legal standards can be disregarded.
With waning U.S. support, Ukraine looks to Europe for hope. In his recent address to the Irish parliament, Ukrainian President Volodymyr Zelensky emphasized the importance of legal accountability, urging Ireland to back “all efforts to establish a tribunal for Russian aggression.” Europe should leverage its influence to sustain this agenda, as it is in the collective interest of all European countries to avert a return to Grotius's world.
(The Conversation) AMS
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