What we have already lost in Ukraine

Guest Editorial by Paul W. Kahn

What we have already lost in Ukraine

Guest editorial by Paul W. Kahn

By the time this appears, many Ukrainians will have lost their lives; many more will have lost their homes. Theirs is the most profound tragedy, and they deserve our support. 

Many others, far from Ukraine, will bear the costs of Putin’s misadventure: oil prices will rise; so too other commodities, including wheat. The global agenda to address climate change and the pandemic will be seriously set back. Siberia will burn, but it will not be alone. 

These are tangible costs that will produce endless human suffering. Yet there is more. Putin has released a 20th century virus into the 21st century. Europe is at war again, and we have little idea of where this will lead or how far it will go. Putin’s threats have already gone nuclear. If we are not yet done with European war, we must reckon with a profound loss of hope that we had put the 20th century behind us. 

Russia’s invasion of Ukraine loudly announces an end to a global order of international law. That order was stillborn with the creation of the United Nations at the end of World War II; it was miraculously resurrected at the end of the Cold War.

There were two pillars to this new world order. The first was a prohibition on the use of force by one state against another. This was the very meaning of the United Nations. Borders were to be respected. No state could send its armies into another with the ambition of territorial or regime change. When disagreements between states arose, they were to be worked out without the threat of violence. 

The second was a requirement that every government treat its own citizens with dignity and respect. The terms of this commitment were set forth in a series of Declarations and Treaties on human rights, including an absolute prohibition on genocide. The first pillar guaranteed a space for national development; the second set limits on domestic politics. States had a right to be self-determining, but they had no right to abuse their own citizens.

This was the fundamental vision of international law for the last two generations. It was always more vision than reality. No one thought we lived in a world in which the principles were always followed. Difficult cases arose when the principles were in conflict. Should nations intervene against others when they engaged in genocide? 

Nevertheless, the twin norms were endlessly invoked as a measure of policy, of what can and should be done. States generally believed they had to justify their actions when others accused them of violating the norms. 

Some of these justifications strained credulity — for example, the claim that a threat of weapons of mass destruction justified the American invasion of Iraq and the Chinese claim that their Uyghur internment camps are re-education centers. Hypocrisy can be the tribute vice pays to virtue. At some point, however, hypocrisy undermines norms. We have reached that point with Putin’s claim that his invasion is justified by Ukrainian genocide against ethnic Russians. 

The two pillars of the international legal order are now gone. The invasion of Ukraine is not different in kind from Hitler’s invasion of Poland. Putin’s answer to those who object is to threaten their destruction. 

The foundation of the United Nations collapsed on Wednesday, as the Russian invasion went forward while the Security Council was meeting. The second pillar — human rights — collapsed some time ago in Xinjiang, when Xi set out to destroy the Uyghurs. Two of the three great powers in the world have now clearly rejected the idea that they are accountable to an international legal order. They will do what they want, meaning they will do what they can get away with.

Even were the United States committed to a global legal order, there cannot be law for some and not for others. We no longer live in a world in which that vision makes any sense. Our world remains that of the 20th century, as figures like Putin and Xi take their place alongside of Stalin and Mao. 

A world that is worried about conflict between states is not one that will address climate change. It will not address global poverty or disease. It will, instead, invest in weapons and national defense. Governments will not advance human rights but will instead quash dissent. The 20th century was a terrible time. To be condemned to repeat it is a terrible loss for all of us.

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Paul W. Kahn is Robert W. Winner Professor of Law and the Humanities and director of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School.

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