Symposium: Use of force, territorial integrity, and world order: continuing the debate
Unpacking the comparison between Ukraine and Iraq
by Professor Alejandro Chehtman
Published on 20 March 2023
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.
This thesis requires addressing an obvious objection, namely, that other recent instances of use of force have been relevantly similar in kind. The obvious candidate is the US-led attack on Iraq in 2003. However, Brunk and Hakimi note that military operation was not intended to change international boundaries by force. In that situation, Iraq had invaded Kuwait (albeit in 1990), and perhaps more relevantly, the United Nations (UN) Security Council had condemned Iraq on multiple occasions going as far as to ascertain that it remained in ‘material breach’ of its obligations. Additionally, Brunk and Hakimi recall, resort to force was justified by the US-led coalition through an argument that had a ‘limiting principle built into it’ (at 690). This second feature, they suggest, can be further extended to other deeply controversial uses of force, such as the North Atlantic Treaty Organisation bombing of Serbia during the crisis in Kosovo (an impending humanitarian catastrophe), as well as US’s airstrikes in Syria amidst the use of chemical weapons by the Syrian forces. Ultimately, each of these operations is compatible with ‘the core norm against forcible annexations of foreign territory’ (at 691).
In the same pages of AJIL, Anastasiya Kotova and Ntina Tzouvala disagree with this sharp distinction. They concede that the justification of Russia’s invasion of Ukraine has been overwhelmingly considered more implausible than the justifications made by Western powers in their own resorts to force. However, they suggest that this says little about any substantial difference between them. The fact that they have been less persuasive has to do—they claim—with two main reasons. First, that Russian justifications were largely intended for a domestic audience, rather than to an international one (at 717). They were, thereby, less adequately framed within international legal parlance and its conceptual framework. Second, that Western states have been ‘more successful in making their international legal practices and ideologies’ (revolving around statehood, sovereignty and human rights) hegemonic. By contrast, they suggest that there is far more continuity than rupture between this year’s Russian invasion of Ukraine and Western resort to force during the 1990s and early 2000s. The reason for this is that non-Western imperialism such as that characterizing the invasion of Ukraine is analogous to Western forms of imperialism in its ‘material underpinnings’ (at 712). Although non-Western imperialism may be argumentatively distinct, they conclude, it replicates Western imperialism’s ‘patterns of extraction exploitation, and violence’ (at 713).
As it may be apparent, the disagreement between these two positions is not about specific facts or the underlying values at play. Nor is it about the way in which international legal discourse—at least its mainstream version(s)—appraises each of these situations. Rather, they ultimately disagree about the terms we should use to compare them. In this post, I want to unpack the terms of each of their positions as a way to move the discussion forward.
Let us start with Kotova and Tzouvala’s analysis: they correctly identify that both the Russian invasion and Western resorts to force embody an imperialist logic. This fact, they purport, equates them if we chose this as the ‘correct’ metric of evaluation. Perhaps a bit dramatically, they conclude that ‘the international legal order will have to be anti-imperialist, or it will not be at all’ (at 719). Yet their argument is at the very least incomplete. The fact that two different acts can be criticised on the same grounds (i.e. that they are instances of imperialist drives, or logic) hardly suffices to make them relevantly analogous. There may be fundamental differences on at least a further fundamental consideration: the harm and suffering each (imperialist) action causes. Such harm, in turn, seems decisively relevant to determine their wrongfulness. Indeed, imperialist policies and actions can harm people to very different extents depending on the amount of force required to impose them, and the local policies they ultimately favour. Accordingly, any promising critical approach must be sensitive also to the different levels of harm involved to reach a persuasive conclusion about their level of wrongness. Kotova and Tzouvala’s otherwise insightful account in my view fails to do precisely this.
Similarly, I am not persuaded that Brunk and Hakimi’s approach fares much better in accounting for their preferred conclusion. Their central argument is based on the fundamental nature of the rule that has been breached (prohibition of acquisition of territory by force) and the fact that, insofar there is no limitation built into the justification for resorting to force, it risks further uses of force by other states. Let us consider, first, the claim based on the rule against forcible annexation. There are two possible interpretations regarding its centrality for the international legal order. The least plausible one is that this rule protects the rights of states to their territorial borders. Given that such borders are often the result of arbitrary and unjust historical processes —including, notably, colonialist, imperialist, and racist projects—and that states do not seem important in their own right, but only of derivative value stemming from the fundamental rights and interests of their citizens, this interpretation can be readily dismissed. The ‘holy grail’ of international law simply cannot be the defence of existing international borders for the sake of the rights of states.
A more plausible interpretation, by contrast, is likely that the prohibition of forcible annexation deters aggressive wars of conquest. Indeed, as Brunk and Hakimi acknowledge, the empirical literature has shown that disputes over territory are the most common cause for war. This interpretation explains their further claim that the invasion of Ukraine ‘might be especially dangerous in unleashing additional violent conflicts’ (at 692). Importantly, though, the fundamental consideration here is that wars are a source of egregious harm and suffering for a great number of individuals and groups (including political communities), most of whom are innocent victims. Accordingly, the importance of international borders is directly connected with the prevention of wrongful harm and the violation of fundamental rights of a vast number of people.
Put differently, Brunk’s and Hakimi’s argument ultimately rests on the normative importance of the wrongful harm and suffering caused by war. In principle, it is unclear that there is enough evidence to suggest that Ukraine and Iraq, to name but two, are different in kind on these grounds. Calculating the harm and suffering that wars bring about is extraordinarily hard. We may start, though, by taking note of the death toll. Recent estimates (here and here) suggest that the death toll of military forces in Ukraine approach 200,000, while civilian casualties may be around 16,300 (with 6,430 civilians killed). In turn, a recent study on war-related deaths in Iraq post-2003 puts the figure at 461,000. These figures exclude other direct and indirect war-related harms, including harm to third parties, to infrastructure, to nature and non-human animals, and long-term effects on the victimised populations. We must thereby treat them carefully and acknowledge that this calculus is tentative at best. In any event, it seems plausible to conclude that on this basis alone it is hard to decisively distinguish between these two operations, nor it is obvious to me that it would be appropriate to do so.
In effect, at the core of Brunk and Hakimi’s argument is the claim that the Russian argument to resort to force will ‘unleash’ additional conflicts in the future, expanding the suffering and harm that wars bring about in ways that the US-led invasion of Iraq would not. This requires showing that the Russian invasion has caused, or will cause more wars in the future than the US-led violation of the jus ad bellum in Iraq. According to their argument, the main reason for this implication, it seems, is that the Russian legal justification lacks a built-in limitation within it. Yet, I believe it pays to look a bit closer at this reasoning. As it stands, the argument assumes a causal connection between the structure of a legal rule—i.e., whether it has a sufficiently well-defined limitation built into it or not—and the future conduct of states, or at the very least with a much more volatile international order. This connection seems to place significant confidence in the way legal argumentation or the structure of legal rules—as opposed to political, economic interests or domestic politics—influences and constrains the behaviour of states. However, any such strong causal connection seems unsupported by recent research on norms’ efficacy. Both the empirical and functionalist work on the efficacy of norms seems to put greater emphasis on the legitimacy of the system and the institutional reactions that any violation generates, as research on deterrence, reciprocity and norm internalisation seems to suggest (here, here, here, and here).
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.