What I Didn’t Hear at the International Law Conference in Ukraine

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‘Are you a Russian spy?’ The question came over dinner, between the grilled vegetables and the tongue with mushrooms, in the opulent House of Scientists in Lviv, western Ukraine. At the ‘Stand Tall for the Rule of Law Summit,’ held from 8-10 December 2023, American and Ukrainian officials, legal advisers, and academics gathered to support Ukraine’s ‘lawfare’ – strategizing how to use law to help win the war and uphold the international legal order. Hillary Clinton sponsored the dinner. Was I a spy? Well, I was listening.

What I heard – and didn’t – from this group of influential American international lawyers gathered on the 75th anniversary of the Genocide Convention and the Universal Declaration of Human Rights, says a lot about the challenges confronting Ukraine, America, and the international order we’re fighting for. Correction: Ukrainians are fighting for, and Americans are funding.

Around the same time, Ukraine’s President Zelenskyy was in Washington again. The message: Ukraine needs money or Russia might win. A negotiating technique, but the rhetorical shift is telling: Before, predictions of victory; now, it’s about not losing.

Republicans are linking aid to a migration deal, but Democrats also increasingly question what America’s commitments should be. President Biden previously pledged support “as long as it takes,” now “as long as we can.” Privately, Pentagon officials talk of stalemate – and Ukrainians too – meaning a frozen conflict or negotiated peace. 

But that’s not what I heard at the conference. Instead, victory: a reaffirmed global order, Russia punished, Ukraine compensated, justice upheld. As for what the likelier outcomes require, mostly silences: about territory, negotiations, trade-offs – and what the order we’re fighting for might look like to the rest of the globe.

Territory: Besides rule of law, this is a war for territory, but practically the only discussion was how to reintegrate ‘de-occupied’ lands. It’s difficult for lawyers to admit Ukraine might not get its territory back, since Russia’s invasion so clearly violates tenets of the legal order, and any border changes resulting from the invasion would be too. But land transfers aren’t illegal as such, and any end to this conflict will probably include them. (Treaties under duress are invalid, but every peace treaty is negotiated in coercive circumstances.) Why might American lawyers – and American policy – want to consider that?

A second silence:

Negotiated Peace: Wars don’t end by fiat. Short of military victory or Putin’s political collapse, peace requires negotiation, not a fantasy football wish list. Is Russia going to capitulate? I have ‘won’ endless board games plotting my own moves, forgetting the other side gets to play too.

(Ukrainians – who are actually fighting – were the only ones I heard mention that, of course, the legal wish list depends on actually prevailing on the battlefield, but even they mostly weren’t talking about anything but inevitable victory.)

Negotiations often start with maximalist positions no one expects to be in the final, sordid deal, but drawing legal lines in conflict makes that shift harder. Sanctions and litigation can pressure the Kremlin and might need to be traded away. Indicting Putin affirmed that heads of state are subject to law – and could be an obstacle to a deal. (Or a bargaining chip – if we were willing to bargain with the enforceability of law, anathema to most international lawyers.)

I heard almost no acknowledgment that negotiations might need to take Russia’s position into account. Putin may be ready to negotiate a ceasefire – but he’ll be expecting to extract concessions on territory and Ukraine’s status. It’s not a question of recognizing ‘legitimate’ interests or conceding redlines – this is Putin’s war – but blame doesn’t change capacities, and there are limits to Ukraine’s and ours.

So, a third silence:

Trade-Offs: Even if we view this as a Manichean struggle – a new Cold War – we may still have to compromise. That’s what we did in the actual Cold War, with terrible costs for those stranded on the wrong side. For millions of displaced Ukrainians, that’s what the lines of a new less-than-victory might mean.

But there are limits to the checks America will write. Those limits will hit harder the longer we indulge the fiction that America will fund whatever war Ukraine needs to fight. America’s interests aren’t the same as Ukraine’s, or any other country’s – which raises one more thing I didn’t hear enough of…

Whose Global Order? All this might be of marginal relevance if the conference were just a bunch of American law professors bravely warming themselves over their cappuccinos in a beautiful city far from the front. But lawyers and law are relevant. America has advanced a strikingly legalized rationale for this war: defending the global rules-based order. It’s worth considering what the rest of the globe thinks about that order.

When this war started, 143 countries condemned Russia’s aggression in the UN General Assembly – meaning 50 countries didn’t ‘stand tall’ for that order’s most foundational principle. And what do those numbers mean? In 1983, 108 countries, including NATO allies, condemned the US for invading Grenada; President Reagan said it didn’t upset his breakfast. This December, 153 countries voted for a ceasefire in Gaza. Many countries in the global south aren’t convinced Ukraine is their struggle. America’s Galadrielite order frightens them as much as the alternatives.

. . .

Sometimes what you hear outside the official conference hits hardest. ‘Would you like to visit the rehabilitation clinic?’; ‘Her brother was killed at the front;’ the 9:00am minute of silence, as if a minute could count the dead. And the asides: ‘They’ should ‘go back to their own country;’ Russian ‘colonizers.’ Questions about spies.

Of course, I’m not a spy. That half-serious accusation came after I suggested Ukraine might have problems reintegrating Crimea and Donbas. That’s when I first heard someone murmur ‘They should all just leave.’ Which tells you what war does to people. Ukrainians are fighting for the rule of law and their own liberation – both worth funding – but those other things I heard are part of this war too: not just a country’s liberation or an impartial global order, but something else. Which we are also funding.

I also heard critical comments from Ukrainians, Americans, and a Chilean who reminded us that the global south saw things differently. Some Ukrainians were clearly disappointed that America’s – and the American Society of International Law’s – support wasn’t more specific. But ‘victorization’ – celebratory for the Americans, perhaps willful for the Ukrainians – was widespread.

Law matters, but doesn’t work in abstraction. How to integrate Ukraine into Western economic and security structures while still partly occupied? To deal with Russian de facto control? These are questions for which lawyers will be invaluable. And there will be work cleaning up the complications – family reunifications, contract disputes, trade relations – that a frozen conflict inevitably creates. And larger questions: If Russia’s annexation – nearly unprecedented in the postwar era – is allowed to stand, what effects could it have on territorial integrity and the design of international institutions? Serious issues for lawyers to discuss.

You might ask, is a conference really the right place to air hard questions with a bunch of fly-in foreigners? Perhaps it’s understandable that Ukrainians aren’t ready to discuss such matters openly. But maybe Americans need to hear them. Few heresies are more unforgivable than saying a true thing too soon, but it’s getting near time. 50 billion dollars might shore up Ukraine’s defenses, and that’s worth paying. But it won’t bring victory – not the kind conjured in Lviv – and it’s not clear any amount will. If not, someday we’ll have to begin planning for stalemate. Law is the servant of war, but not all wars are won. If – when – the time comes, law must serve, not victory, but peace.

. . .

During the final session, phones began chiming: an air-raid app. False alarm, and we carried on, approving a declaration reaffirming international law. Outside, sirens moaned, the rising-dropping cadence of mid-century apocalypse: rotterdamblitzberlin. . .rotterdamblitzberlin. But the streets were full, the war real but far away, so I went looking for something an informant told me about: a box of chocolates emblazoned with Ukrainian folk images of drones and missiles.

The chocolates were delicious – they tasted like victory. But we, Ukrainian fighters and American funders, aren’t winning this war, and the stakes – the dead, the displaced, the dangers still to come, the compromises Ukraine, America and their lawyers may have to make – are too important to pretend we are.

Thanks to several thoughtful reviewers who were also at the conference – at least one of whom, in an act of sensible realism of a different kind, would prefer to remain anonymous.

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Kostia Gorobets says

February 7, 2024

Dear Professor Waters,

Thank you for the insightful post! You've touched upon many difficult questions. As a Ukrainian, I understand how defensive people may get when pushed on sensitive issues such as reintegration of the occupied territories or possible concessions to Russia. To some, these are things that do not even merit a serious discussion. To some, they are things that only Ukrainians can discuss. I think neither are correct. But ultimately, many Ukrainians do indeed believe in some inevitability of victory because alternatives are morbid. This is wrong, and we do need to remind ourselves about the stakes. We may lose. In fact, now the chances that we will are higher than ever.

And yet I think that the silences you talk about do not come out of ignorance or an attempt to avoid difficult conversations. Rather, I think, they are indicators of mistrust. Trade-offs and concessions only make sense when there are at least some assurances that they will suffice. There is just no ground for such belief in relation to Russia. We may speak of trade-offs and concessions for as long as we want, but there is literally nothing that indicates that Putin is willing to let Ukraine go – not the part of it that is not occupied, note, but the whole of it. He is willing to keep this wound open for as long as it takes to crush Ukraine's spine, regardless the costs.

I believe the fundamental issue here is that to many people, especially in the "West", the basic scenario of thinking about trade-offs and concessions is something similar to Finland after it survived the Soviet invasion. Ukraine accepts the loss of territories, agrees to remain neutral, etc, and then lives on almost happily. But I think we need to think of Chechnia, rather. Every truce will be a prelude for a new expansion. Every city will be grinded into dust. Millions will die and millions more tortured. And the remaining population, forced into loyalty, will form the base for a new military force, now with the eyes on other "historic lands".

And there is another issue here, actually, that is not discussed all that often. Politically, Putin cannot accept half-measures, agree on a truce (or even more so agreed peace), because what will he do with a 600K men, hyped up to destroy Ukraine, feeling betrayed? That force must either be absorbed back into Russia which comes with enormous risks, or, quite more likely, channeled elsewhere. Kazakhstan? Baltic States? Georgia again, should it change its ways? For Putin, stopping this war is not an option, for a whole lot of reasons.

So, I am not sure what can one expect except for silence here. In a long run, divided Ukraine is quite likely defeated Ukraine. It feels to me that asking Ukrainians to break these silences is almost like inviting Ukrainians to fantasize about scenarios of their demise.

Kind regards,
Kostia Gorobets

Kai Ambos says

February 10, 2024

Well written, great read, only wondering whether the author knows that there is something called Europe (especially European Union) and some other Western powers (including Canada, the author‘s northern neighbour) which „fund“ Ukraine‘s war too. This is not mentioned once! Strange. That is what we call here, if we only talk from our perspective, Eurocentrism. Also strange how much this is about funding when everyone, especially from Ukraine and Eastern Europe, looks to Washington where Trump’s Republicans orchestrate a trade off - one not thought of by the author, apparently - between US northern border security and support of Ukraine, i.e., wholly different matters (except that South American migrants may be in a similar unfortunate situation as many Ukrainians). In the end - God forbid - the essay may have to be updated replacing US by EU - though a wholly unrealistic scenario (that the EU may be able to compensate the lack of US funding).