By Julian Fisher
Over the past year, analysts have compared Russia’s “special military operation” and past U.S. and NATO operations. An explicit example of this is a recent article in The Nation titled “Twenty Years Ago, the United States was Putin.” It argues that while Russia’s actions violate an American-led “rules-based international order,” the United States themselves have broken these rules and undermined this order.
There are many occasions to choose from, including, most famously, the 2003 invasion of Iraq, which Russian President Vladimir Putin called a “mistake” at the time. In what is perhaps the Freudian slip of the decade, former U.S. President George W. Bush admitted as much himself when he lamented “the decision of one man to launch a wholly unjustified and brutal invasion of Iraq. I mean Ukraine,” while speaking at an event in May 2022.
Russia sought to justify its invasion of Ukraine by invoking Article 51 of the United Nations (UN) Charter, which provides the right to individual or collective self-defense, on the basis that the Ukrainian state threatened separatists in Eastern Ukraine. Other reasons have come up that seem to track America’s arguments going into Iraq. Russia’s language of “denazification” echoes American rhetoric about terrorists, and Russia has even cited concerns about Weapons of Mass Destruction or WMDs.
In his speech on February 24, 2022, the day Russia invaded Ukraine, Putin gave us his objectives: demilitarization and denazification. When George W. Bush announced Operation Iraqi Freedom the day before the invasion, he similarly began by saying that coalition forces were “disarming Iraq.” By then, the United States was on a crusade against “any nation that continues to harbor or support terrorism.” Russia has also invoked a “responsibility to protect” Russian speakers in Ukraine, not unlike America’s attempts to give a legal basis to “humanitarian interventions” in Iraq, Yugoslavia, Libya, and elsewhere.
International law is not immune from attempts to string together treaties, UN resolutions, and interpretive doctrines based on political fancy. According to one theorist discussing legal justifications for the 2003 invasion of Iraq, the UN use of force authorization from 1990 was dormant, “suspended but not terminated” after coalition forces pushed Iraq out of Kuwait, despite fulfilling the original mandate.
UN Security Council (UNSC) Resolution 1441 from 2002 famously gave Iraq a “final opportunity” to comply with previous resolutions. France, Russia, and others believed it was up to the UN to make any final determinations. Since the United States disagreed, UNSC 1441 was said to have revived the decade-old authorization to use force. For another theorist, the continued use of force to maintain no-fly zones over Iraq throughout the ’90s meant that, in practice, the authorization neither expired nor went dormant in the first place, allowing the United States to escalate at any moment.
Both arguments can’t be true simultaneously, but they equally muddy the waters and give leeway to American military action. Moreover, if revelations such as the Downing Street Memos—which suggested that intelligence on Iraq was being “fixed”—are accurate, then these legal “justifications” ultimately come across as mere window-dressing for an early decision to go to war.
In 2004, UN Secretary-General Kofi Annan said the U.S. invasion of Iraq was “not in conformity with the UN charter […] and from the charter point of view it was illegal.” If states can appropriate and twist international law as the United States did, then it must expect others to follow the precedent. Indeed, influential sources have asserted that Russia is “using the language of the law to defend its actions” in Ukraine. The question is whether it matters if states comply with international law, and by extension, whether we should be concerned about how states use the language of the law. What, ultimately, is the purpose of international law?
To be sure, however similar the U.S. invasion of Iraq is to Russia’s invasion of Ukraine, one wrongful act does not right another. Still, can we speak of a crisis of international law when the United States, the advocate and enforcer of the liberal order, holds back on sharing Russian war crimes evidence for fear of setting the wrong kind of precedent?
The realist school of foreign policy would argue that states comply with international law and wield it only if doing so is in their national interest. From a liberal point of view, addressing this problem requires disentangling the “liberal order” and international law, albeit in a different way than the realist does. The modern international system is undoubtedly indebted to and partly the brainchild of Enlightenment thinkers such as Immanuel Kant, who originally conceived of a League of Nations as a Commonwealth of Just Constitutions.
Enlightenment ideas and the liberal society they produce can be thought of as a society that has subjugated the state to itself, to the political will of free subjects. The French Revolution’s Declaration of the Rights of Man and Citizen and the American Bill of Rights sought to realize and enshrine this kind of society, and the foundational 1948 Universal Declaration of Human Rights is steeped in the language of these earlier documents.
But the system of international law that emerged during the Cold War, which explicitly prioritizes international peace and security, must admit some compromise and forgo discriminating between liberal and illiberal states, if such a clear distinction can even be made in the first place. It’s been over a century since Woodrow Wilson set out to make the world “safe for democracy” and over three decades since Francis Fukuyama proclaimed the “end of history,” yet “liberal” states still exist among “illiberal” states. These must convene if a broad peace is to be made.
The status quo of international law, which seeks to enshrine the basics of liberalism while impartially adjudicating disputes among states, remains seemingly at odds with itself. Insistent upon making states play by a liberal ruleset, the prevailing order relies on a “liberal” hegemon to act as its enforcer. But if the United States can enforce these rules, it can also exempt itself.
When the United States experienced its “unipolar moment” from the early 90s onwards and enforced international law against an aggressive Iraq and brought war criminals to trial in Yugoslavia, all while embarking on its own aggressive wars and committing its own war crimes, the consequences of this hypocrisy became apparent. The lasting impression in much of the world is that the international system is neither value-neutral nor necessarily liberal but merely subservient to hegemonic power.
Critically, Kant believed that a peaceful federation of free, self-legislating societies would only emerge at the end of the road, so to speak, as the outcome of a process of enlightenment rather than a vehicle of enlightenment or a state of affairs imposed through military force and coercive international norms. A long line of neoconservatives championed and attempted liberalization by regime change. Through their actions at home and abroad, American neoconservatives revealed their own illiberalism, raising questions about America’s liberal credentials and building a reputation of aggression that remains to this day.
Julian Fisher is an independent researcher of International Relations and a previous Global Politics Fellow of the Schar School of Policy and Government at George Mason University. His research focuses on the history of International Law.