After Russia invaded Ukraine earlier this year and as the war has been waged between the two sides, many people – including the president of the United States – called for Russian leaders and military officials to be prosecuted for war crimes and for violations of international law. Coincidentally, there is an UN-related body responsible for prosecuting state actors who have perpetrated war crimes, namely, the ‘International Criminal Court’ or the “ICC” located in The Hague, Netherlands.
The central issue, however, is the enforcement of the ICC’s jurisdiction. Neither the United States nor Russia recognizes the jurisdiction of the court. The court has investigated American officials and soldiers in the past for war crimes over the last couple of decades, and there is the prospect that the court will investigate Russian officials and soldiers as well for their actions in Ukraine. But if the court were to order that Americans or Russians be tried in The Hague for war crimes, there is perhaps zero possibility that either the Russians or the Americans would comply with such an order from the court.
Thus, despite the “rules-based” system of the international community, the two major powers responsible for its enforcement – namely, the United States and Russia – refuse to enforce the rules. Moreover, and as Henry Kissinger argued: “The frequent exhortations for countries to do their ‘fair share,’ play by ‘twenty-first century rules,’ or be ‘responsible stakeholders’ in a common system reflect the fact that there is no shared definition of the system or understanding of what a ‘fair’ contribution would be.” Kissinger added that “while ‘the international community’ is invoked perhaps more insistently now than in any other era, it presents no clear or agreed set of goals, methods, or limits.”
Nevertheless, and as Kissinger highlighted, the “rules-based” system of the international community “has striven to curtail the anarchical nature of the world with an extensive network of international legal and organizational structures designed to foster open trade and a stable international financial system, establish accepted principles of resolving international disputes, and set limits on the conduct of wars when they do occur.” The two basic requirements of international order are “a set of commonly accepted rules that define the limits of permissible action and a balance of power that enforces restraint where rules break down, preventing one political unit from subjugating all others.”
At the moment, however, both the rules of international order have broken down as a result of American and Russian wars over the past couple of decades and the global ‘balance of power’ has also shifted as a result of China’s rise. Hence, the international order now stands “at a turning point.” As Kissinger argued: “Its nostrums are understood globally, but there is no consensus about their application.” Kissinger also noted that the basic concepts of international order such as “democracy” and “human rights” and “international law” are acknowledged and recognized by everyone and “are given such divergent interpretations that warring parties regularly invoke them against each other as battle cries.”
But as Hans Morgenthau argued, the international system is such that every nation “is its own legislator and the creator of its own tribunals and of their jurisdiction, it is also its own sheriff and policeman.” The international system also “makes it easy for the strong both to violate the law and to enforce it, and consequently puts the rights of the weak in jeopardy.” Thus, in order for weak states to survive in the international system, they must somehow come under the protection of stronger states. The fact and the reality of life is that there are major powers on one hand, and there are small powers on the other hand. Morgenthau also made what is perhaps the most important point of all regarding international law, which is that both the attempt and the success of enforcing international law “depend upon political considerations and the actual distribution of power in a particular case.”
In turn, both the breakdown of the rules-based system and the change in the global balance of power can be dealt with in one of three ways, namely, to perpetuate the anarchical “state of nature” which has arisen, which one must note is an unsustainable course of action, given that the means of perpetuating this “state of nature” fall short of the “obstacles” posed by such a state of nature. Second, there is a political solution between the major powers which can perhaps address the breakdown of international order. And third, the state of nature can continue until one major power ends up dominating and winning over the others. Which one of these three possible courses of action is ultimately taken up by the world’s major powers remains to be seen.