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Remarks by Sabeena Rajpal

Published online by Cambridge University Press:  24 March 2023

Rights & Permissions [Opens in a new window]

Extract

Thank you, Monica. While the cases you mentioned or previous examples have involved uses of force where maybe not all observers felt that the black letter law on when use of force was permissible was satisfied, I do think that the current case is extremely distinguishable. When it came to both Kosovo and Iraq, there was agreement in international institutions that, for Kosovo, there was a grave humanitarian situation. For Iraq, that there was a certain threat emanating from Iraq. I think those international institutions supported addressing those situations one way or another, as evidenced by relevant UN Security Council resolutions.

Type
Fractures in the Foundation: Is Waging Aggressive War Still Prohibited by International Law?
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The American Society of International Law

Thank you, Monica. While the cases you mentioned or previous examples have involved uses of force where maybe not all observers felt that the black letter law on when use of force was permissible was satisfied, I do think that the current case is extremely distinguishable. When it came to both Kosovo and Iraq, there was agreement in international institutions that, for Kosovo, there was a grave humanitarian situation. For Iraq, that there was a certain threat emanating from Iraq. I think those international institutions supported addressing those situations one way or another, as evidenced by relevant UN Security Council resolutions.

But here, you have the opposite situation. You have a democratic, peaceful government that has posed no threat to the region or to Russia, and you have a completely controversial, unprovoked case of aggression, as you said, that clearly violates the UN Charter. The qualitative difference here is really evidenced by the international community's response. Looking at the construct of the panel—the question about the relevance of international law—I think it is extremely relevant and exemplified in the response by the international community.

I want to acknowledge that, given how heartbreaking and horrific the situation on the ground is, that many might feel that international law is not doing enough. It certainly did not prevent Russia from unlawfully invading in the first place. But I do think that the response we have seen shows that international law has a place, that the prohibition on the use of force is still extremely relevant and valid. You can see this by how quickly international institutions have moved and with what unity and purpose. We do not see that often. he International Court of Justice, which I know Harold will talk about, has moved more quickly than it usually moves, or even than any courts I think generally move.

These institutions have shown the importance of the role they can play in responding to such a stark transgression of international law. International law has also given us a good framework and language for addressing this conflict. As you stated, Monica, it is a clear violation, but the rules of international law have provided a way for the international community to come together and condemn Russia's actions.

Because of the strong international legal underpinnings relevant to this conflict, the international community was able to unify its messaging from day one. And because most everybody is using the same language and operating from the same set of rules and can see very clearly the violation that Russia has committed, the response has been that much stronger. The language of international law has helped focus the international community's messaging and has lifted the discourse above the usual geopolitics.

Monica Hakimi

Thank you. Harold, I would like to ask you a version of the same question. What is your take on the legal implications of the invasion for jus ad bellum going forward? Let me also pick up on something that Sabeena mentioned. She mentioned that international institutions have really moved quite quickly in response to the invasion in Ukraine. I think we do see that, but I also want to ask what you make of the mixed response to the UN General Assembly resolution within Africa and in some sections of the Global South. In particular, what you make of China's reaction to the invasion? And what do those less robust responses reveal about this invasion and its precedent going forward? For example, what does it suggest about the strength and significance of Article 2(4), moving forward?