Responses of international legal academia to the Russian invasion of Ukraine

1. Introduction

The largest war Europe has seen since the Second World War has entered its second year. It is the realistic, yet bitter expectation that Russia will not cease its war of aggression against Ukraine any time soon. Many people, including the international legal academic community, feel powerless. Some of us are personally affected. When rockets started hitting Kyiv in the night of 24 February 2022, my retired in-laws packed whatever belongings they could quickly gather, and started a long and exhausting journey from the panic-ridden capital out of the country. That day, they became instant refugees and we, as their immediate relatives, were reminded that a refugee is not something you are, but something that happens to you. In the weeks and months that followed, other family members had to find their way out, or, ironically, into the war. Some younger members of my extended family managed to escape abroad from hiding in shelters with their small children when their town was bombed. They still wake up at night in terror. But they are safe. Others joined the army and are fighting at the frontline, sending a sign of life at spare intervals. They are not safe. When there is a direct connection, the stories of life (and death) at the front provide an otherworldly contrast to our daily lives.

International law thus entered the lives of our family from an unexpected and practical angle: assessing your rights as a Ukrainian refugee, dealing with humanitarian law on the battlefield. Most of 2022 was a blur, attempting to best understand what was actually happening, adapting to new realities and accepting that there is little one can really do. My story is certainly not unique, and others in the international legal community may find themselves in a similar (and worse) situation. We cannot, of course, singlehandedly change the course of the war. We can, however, do what we do best: study the events as they are unfolding before our eyes and apply our knowledge of international law to them. Geopolitical developments are impossible to control, but attempting to analyse them contributes to the feeling that one can grasp what is going on and how our weapon of choice, i.e., our legal toolbox, may be optimally used.

The horrors of the war, its global and legal implications have provided the international legal academic community a fertile ground for delving into its various international legal aspects. Since the start of the invasion, numerous events, conferences, and workshops have been organized, and some articles, countless blogposts, and even books have been published. ¹ This editorial will highlight several responses of international legal academia to the Russian invasion in Ukraine, and attempt to analyse their nature, as well as their impact on how legal research is done in these times. We observe that a great variety of scholars is weighing in on the events, both senior and more junior, those that have a personal (geographical) connection and those who have not. Outlets vary from traditional journal articles, but are, due to fast-paced developments, more prolific in the blogosphere. This contribution will mainly focus on several subfields of international law and their angles in studying the war, as well as draw some broader conclusions on the mode of academic scholarship and its interaction with this ongoing, major geopolitical shift.

Before exploring the lines of research that have been developing since the invasion, it should be noted that the many practical responses by universities and research institutions around the world to help (legal) scholars from Ukraine who have been affected by the war cannot be ignored. Notably, the distinctly ‘European’ institutions, i.e., the European University Institute (EUI) and the Central European University (CEU, a known safe-haven for academics from post-Soviet countries) have quickly set up programs to integrate Ukrainian scholars. ² So have UK and US based institutions. ³ The namesake of this journal, Leiden University, did set up an emergency fund for Ukrainian students, though it does not provide for an integrated program for Ukrainian academics. ⁴ There are various initiatives that continue to link Ukrainian scholars to grants, both in Europe and abroad. ⁵ This is merely a snapshot, but the practical response has been overwhelming, though it is hard to measure its impact effectiveness.

While reaching out to affected Ukrainian academics is one side of the spectrum with regard to reactions of the international legal community to the Russian invasion, the other has been to cease co-operation with Russian and Belarussian research institutions that have not condemned the war. In the Netherlands, for example, all institutions of higher education have collectively decided to stop co-operating with these institutions. ⁶ The European Commission has likewise suspended the ongoing grant agreements with Russian public entities in research and co-operation. ⁷ The European Society of International Law (ESIL), and, on the other side of the Atlantic, the American Society of International Law (ASIL) have released statements condemning the invasion, though these societies have not officially announced terminating co-operation with Russian and Belarusian institutions. ⁸ The general opinion remains that contact with individual Russian and Belarussian students and academics should stay intact. The author was, for instance, involved in organizing a side event of the Interest Group of International Economic Law to the 2022 ESIL Conference in Utrecht, where several Russian academics participated and presented their careful assessments on the imposed sanctions regime in light of international economic law. ⁹ Careful, as they referred to the invasion as the ‘Special Military Operation’, and the application of the sanctions regime to Russia was discussed in a purely descriptive manner. No judgment or personal opinion was given, while it is in fact the core of our profession to do so. It is, of course, important that Russian scholars are not made targets for punishments for the wrongdoing of their state. And the conviction remains that contact is better than no contact: Reaching out to (young) scholars is important and prevents their further isolation. ¹⁰

2. Responses to the invasion: An overview of trends in international legal academia

It may be worth recalling the vast number of events of international legal significance that have occurred since February 2022. Just to name a few: Russia’s breach of the prohibition of the use of force, the abundant human rights violations and war crimes committed in Ukraine since then, including efforts to document these violations, the exodus of Ukrainians, who from one day to the next became refugees, Russia’s expulsion from the Council of Europe and suspension from the UN Human Rights Council, the imposition of a wave of sanctions on the Russian Federation and Belarus, the peril of nuclear disaster caused by the occupation of the Zaporizhzhia power plant, the brokering of a grain deal between Russia and Ukraine under the auspices of Turkey and the United Nations, ¹¹ Sweden, and Finland breaking with their military tradition, seeking NATO membership, the EU energy security crisis, the sabotage of the Nord Stream gas pipeline, the role of third countries as enablers Russia’s war, the use of non-state actors in the conflict, new methods of warfare as well as new methods of (open source) investigations, and, last but not least, the International Criminal Court (ICC) arrest warrant for President Vladimir Putin, in March 2023. ¹²

Understandably, the debates in the various subfields of international law each have their own point of gravity. Most academic contributions on the invasion have not (yet) appeared in the form of journal articles, but rather on blogs and online contributions (see discussion on this phenomenon in the section below). Understandably, a veritable flood of these were published during the early days of the invasion.

Debates in general public international law have focused on Russia’s breach of the prohibition to use force, various aspects of the occupation, genocide towards Ukrainians, complicity, and (state) responsibility. ¹³ More theoretical discussions and explorations in the area of public international law centre around Russia and its role in the future world order. ¹⁴ A key debate in this context is whether Russian actions vis-à-vis Ukraine represent a different kind of rule-breaking than when the United States invaded Iraq in 2003, or when NATO carried out bombardments in Kosovo, to name some examples. Some, notably Brunk and Hakimi, wish to distinguish the present from the past by attempting to construct a legal basis, going back to UN Security Council Resolutions, to argue why these cases were fundamentally different than Russia’s quest for annexation. ¹⁵ In those resolutions and the subsequent justifications of states’ actions contrary to the UN Charter, Brunk and Hakimi see an affirmation of the prohibition of annexation as the holy grail of international law. ¹⁶ While there is merit to the argument that the circumstances and justifications for interventions in breach of the UN Charter may have been different, the fact remains that these prior violations set a deeply problematic precedent, which cannot be interpreted differently than laying a basis for the Russian invasion.

Debates in related fields particularly relevant for the human dimension of the war, such as international humanitarian law, international human rights law and international criminal law mainly investigate, unsurprisingly, practical issues connected to the prosecuting and holding responsible various state and non-state actors that have violated international law following the invasion. ¹⁷ Discussions of double standards also emerge in academic and policy circles with regard to the treatment of refugees from Ukraine versus refugees from elsewhere. In international economic law, the responses to the invasion can be grouped into roughly two categories. First, the legality under international law of sanctions, the freezing and seizing of assets, and doing business with Russia, both from the trade and investment law angle. ¹⁸ Second, in international trade law in particular, the war is studied as an accelerator to the progressing geopolitical fragmentation and the demise of multilateralism, caused by, inter alia, the geopolitical rivalry between China and the United States, as well as the ensuing Appellate Body crisis. These debates include exploring Russia’s future in the WTO. ¹⁹ Since the war, the focus seems to have shifted to even more stressing of the intrinsic aspects of the various emerging geopolitical trading blocks, unilateralism in trade and the future of multilateralism, and the role of security exceptions.

There are two observations I wish to make based on the research that has been published since the invasion. The first is the division between anticipatory/speculative, reactive, and introspective academic responses. The other is about the increasing two-level mode in which we legal academics work these days, and the growing gap that is emerging between them. This concerns the contrast between in-depth scholarship published in academic journals and what I would like to call high-paced ‘academic journalism’.

3. Anticipatory, reactive, and introspective responses

International legal scholarship produced following the invasion, no matter the subfield, can be roughly divided into three broad categories: the anticipatory/speculative, the reactive, and the introspective. The anticipatory/speculative category of scholarship explores how international law may deal with the aftermath of the war and its various aspects, whilst the results are, obviously, still unknown. This includes issues of international legal responsibility, damages, setting up a tribunal to punish the perpetrators, future of Russia in the international legal order, including its role in the United Nations Security Council. Examples of these contributions have been published as the ‘Options for a Peace Settlement for Ukraine’, a series on the OpinioJuris blog. ²⁰

The most visible and outspoken example of anticipatory/speculative engagement of the international academic (and policy) community with the Russian invasion includes the discussions spearheaded by Phillippe Sands about the creation of a Ukraine tribunal in The Hague, trying the crime of aggression. ²¹ While concrete preparatory steps have indeed been taken to anticipate such a tribunal, it is unclear whether it will ever see the light of day and under what circumstances. ²² Yet, it never hurts to explore the various features and competencies of such a tribunal. Judgment day may never come, or it may come unexpectedly, after all. Another major strand of anticipatory research is, as mentioned above, how the world order will change, and what implications this may have for international law.

The anticipatory/speculative strand of research has resonated with the academic community. It is, in a sense, a ‘hopeful/idealistic’ line of research, a way to productively interact with the invasion and its global effects. Preparing and exploring the creation of a tribunal to hold accountable those responsible for mass atrocities appeals to a feeling of justice, a conviction that there will be an end to the war sooner rather than later. It allows us to work under the assumption that the global order and the rule of law stand for something and are not solely based on realpolitik and the law of the strongest. That invading another country cannot go unpunished and that the war will have consequences for its perpetrators. In addition, as stated above, it is constructive to speculate about how various scenarios may play out and how international law may apply to them. In case one of the scenarios does materialize (e.g., that Russia loses the war, and must co-operate with a tribunal on the crime of aggression), it is best to be prepared.

The reactive contributions, then, are rather studying how international law interacts with the facts and realities as they happened, and how international legal rules may be applicable to them. Reactive legal research covers issues such as the illegality of the use of force, legality of sanctions regimes, the freezing and seizure of assets of Russian oligarchs. This category also includes the application of humanitarian law to new, hybrid forms of warfare, as well as attribution issues of non-state actors such as the Wagner group to Russia. No less idealistic, this is perhaps the more pragmatic strand of research, not speculating on what may be, but rather what is.

The third group, the introspective strand of scholarship, in a way is the exact opposite of the anticipatory research strand. Rather than exploring how international law can best respond to the war and its aftermath, it instead asks the question of why the international legal order has not been able to prevent it. ²³ This strand tries to reckon with the (in)effectiveness of international law in averting what it was conceived for in the first place. I also group discussions on Westsplaining in international law in this category. As a child of Czech immigrants, I can very much identify with the critical notes by Labuda, who notes that Western European Institutions ‘find it easier to discuss more distant geographic regions while essentially ignoring their immediate neighbours to the east’. ²⁴ He argues that that is what Western scholars have done for the eight years prior to the invasion, following the Crimean annexation.

4. Academic writing v. ‘academic journalism’

Another aspect worth discussing in reaction to the invasion is part of a broader development in our increasingly digitalized, real-time societies, one that the war has perhaps exacerbated, and that has not left our profession untouched. This concerns the disconnect between the nature of traditional legal academic work on the one hand, and fast developments on the ground that demand a response on the other. It is the tension between the thorough and time-consuming research that our profession demands, paired with a delay in academic publishing, and the constant need for international law experts to be visible and available to react to current events. Legal academics these days are pulled in many directions: it is required that you produce quality work in the form of books and journal articles. But simultaneously, academics are increasingly taking on the role of investigative journalists who must comment on everything in their field on blogs and Twitter as soon as possible, in order to stay relevant (or, at least, they/we so perceive). A lucky few are able to resist this pressure (the author is unfortunately not one of them). There are arguments for both modes of academic work. Some may look with disdain at this fast-paced ‘academic journalism’, and solely be proponents of what is considered to be more rigorous academic work. Then again, major geopolitical shifts such as the Russian invasion need engagement, interpretation and explaining by experts.

The schism between these two modes of work is perhaps nowhere better visible than in the international legal academic response to the Russian invasion. It will not go unnoticed that the greater part of academic contributions in this editorial are in the form of blogs. Considering the magnitude of the invasion and the impact it will have on our geopolitical order and our professional field, it is indeed interesting to observe that the traditional top international law journals have published surprisingly little on the war so far (as of March 2023). On international law blogs and Twitter, though, contributions are sprawling and are published faster than one can read them.

The reasons for this may be obvious. Researching and writing takes time and journal issues are planned around half a year in advance. ²⁵ Second, academic debates are not always necessarily connected to legal realities (as a rule of thumb, the more theoretical the subject, the less connected to geopolitical/newsworthy events). That being said, important contributions in journals have appeared. The first mover was the American Journal of International Law (AJIL), which devoted an entire issue on the Russian invasion and a broad variety of international law issues connected to it under the title ‘Agora Essays: The War in Ukraine and the Future of the International Legal Order’. ²⁶ However, looking for instance, at International and Comparative Law Quarterly (ICLQ) or the Journal of International Economic Law (JIEL), no publications of the past year were devoted to the Russian invasion of Ukraine. Our own Leiden Journal, has, likewise been silent on the Russian invasion throughout the 2022 volume and the start of the 2023rd. Last but certainly not least, the European Journal of International Law (EJIL) has, up to this date, not published one single article on the legal aspects of the Russian invasion.

I am mentioning EJIL last, as the activity on the affiliated EJIL:Talk! blog perfectly contrasts with EJIL’s silence on the invasion, and therefore could not better illustrate the discrepancies between academic writing and ‘academic journalism’. The EJIL:Talk! blog has a prominent separate category on Ukraine, containing more than 16 pages of thematically wide-ranging blog entries. ²⁷

5. Conclusion

What can these observations tell us? First of all, that we do not see the forest for the trees, but that we as academics are doing our utmost best to better understand the realities that we are living in. The response of legal academia to the invasion of Ukraine has been one of both reevaluating the effectiveness of the system that we have ourselves created, as well as ensuring that the system we have in place can be optimally applied in reality to mitigate the effects and aftermath of the war.

In my world the professional and the personal have oddly merged. Professionally, I focus on trade and energy law and aspects of European and Ukrainian energy security providing ample food for study and thought. My area of research is a true moving target for the time to come. But I cannot follow academic debates on Ukraine without being reminded of my personal situation. I cannot follow discussions on humanitarian law in Ukraine without thinking of relatives at the frontline, on the Russian use of force that started on 24 February without remembering the stress of trying to get my in-laws out, on humanitarian corridors without thinking of my relatives and their small children, escaping shelters into safety, on the bombing of energy infrastructure without wondering how my elderly family members are doing now, living in their self-sufficient home with a big wood-stove close to the town that was badly hit.

I therefore have the hope that some of the currently anticipatory/speculative pieces on the war become responsive lines of research, i.e., that the war will end and that we can start investigating how justice can best be served. And that the introspective soul-searching taking place in legal academia right now will eventually result in fixing the bug, i.e., an ‘International Law 2.0’.

Lastly, it will be interesting to observe how the ‘academic writing’ versus ‘academic journalism’ trend will develop in general. Will these two levels of working coexist, or will, for better or worse, academic journalism take over? I remain hopeful that this will not be the case. While interpretation of current events such as the Russian invasion, and even a degree of #scholactivism is highly important, our field and the people who work in it demand in-depth research and this will likely remain a constant. My humble prediction therefore is that we can expect a flood of Ukraine related legal academic articles and special issues devoted to the invasion from the end of 2023 onwards. This editorial, may, at least for Leiden Journal of International Law, serve as a starting point.