The impact of Russia’s war in Ukraine is far-reaching with some scholars arguing that the conflict threatens progress on all of the UNSDGs, especially UNSDG 16: peace, justice and strong institutions. In this episode, international law expert Oona A. Hathaway, discusses legal recourse to prosecute Vladimir Putin and other top Russian leaders for the crime of aggression, a move that many say is essential to restore international world order.
You wouldn't have the war crimes, you wouldn't have the crimes against humanity if you didn't have the war in the first place. And so that's why it's so compelling and important to have legal accountability for that core, underlying, fundamental crime (of aggression).”
– Oona A. Hathaway, JD
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Annelise Riles [00:00:03] Welcome to the Breaking Boundaries podcast. I’m Annelise Riles, executive director of Northwestern University's Roberta Buffett Institute for Global Affairs. The Northwestern Buffett Institute is dedicated to breaking through traditional silos of expertise, geography, culture and language to surface novel solutions to pressing global challenges. Today, we're talking about United Nations Sustainable Development goal number 16, which is peace, justice and strong institutions. It's been one year since Russia's full scale invasion of Ukraine began, and since that time, millions of civilians have been displaced, thousands killed, and many others subjected to sexual violence, torture and other atrocities. Vice President Kamala Harris declared that it is the official U.S. position that these acts constitute crimes against humanity. Today's guest Oona Hathaway is here to discuss legal recourse to prosecute Russian President Vladimir Putin and other top Russian leaders for the crime of aggression, a move that many say is essential to restoring the international order. Professor Hathaway is the Gerard C and Bernice La Trobe Smith, professor of international law at Yale Law School. She's one of the nation's preeminent experts on international law and the role of treaties in shaping global governance. Welcome on. It's a pleasure to have you on the show.
Oona Hathaway [00:01:31] Thank you so much for having me here.
Annelise Riles [00:01:33] I'd like for our audience to get to know you a little bit. Can you tell us how your career as an international lawyer began? Where did your interest come from?
Oona Hathaway [00:01:41] Well, I think it probably came from the fact my mother is from the Netherlands and I grew up in Portland, Oregon, But we would go visit the Netherlands most years to see my grandparents and travel during the summer after that. And I think, beginning to see the world and realizing that not everywhere is the same as the United States and cultures differ and rules differ and get curious about how these different nations got along. So I think where it all began, my interest in international law, politics relations really started there.
Annelise Riles [00:02:16] Now let's turn to Ukraine. You have written this fascinating book called The Internationalists, which is really a history of peacemaking through international law. It tells a story of the Kellog Bryant pact of 1928, known as the Pact of Paris, that sought to outlaw war. And we international lawyers are often accused of having our heads in the clouds. And people say, Oh, that's not even real law because it's not enforceable. Can you tell us in the context of the anniversary of this war on Ukraine, why does international law matter now?
Oona Hathaway [00:02:49] Well, I think the background you just gave there is part of the answer. So in the book, The Internationalist, Scott SHAPIRO, my coauthor and I tried to do, is tell the history of how we got the international legal order that we have in this era. It's common for people to take it for granted that states are not allowed to invade one another just because they want to. And we started thinking about, you know, why is that? And when did that start? And has it always been that way? And of course, it hasn't always been that way. And so what the book tries to do is it tries to go back and look at the sort of origins of international law. Often people look to someone like Hugo Grotius as sort of the father of international law, and we went back and reread his work and realized that actually his version of international law is a very different version of international law than what we think of today. His version was that if states violate another state's rights, that state can go to war to ensure that there's retribution, that they get their rights met. And so states, if they were owed money, could go to war against states that owed them money, They could go to war for interference with trade relations, all kinds of things. And in a way, what's at stake here in this war is whether we're going to have the world that was created by the outlaw or if we're at war first in the kind of brand pact, and then reinforced in the U.N. charter with Article two for the United Nations Charter, which says that states can't use force against one another. Are we going to be living in a world that is this new world where war is outlawed? Or are we going to go back to the kind of Hugo Grotius world in which states can choose to go to war against one another, that borders are not secure, that sovereignty is not necessarily respected? I think it may sound like making this bigger than it is, but I actually think it really is. At bottom, that is what really is at stake in this war. And I think that's why so many states are responding to it the way that they are.
Annelise Riles [00:04:39] Having watched this war over the last year. Do you think that the war itself is changing how international law is perceived or what the doctrines of international law will become?
Oona Hathaway [00:04:52] I think that what is interesting here is that we have this clear violation of international law, right? So the war itself is just an outright violation of the United Nations. The charter and the central prohibition on the use of force by states. And so the initial reaction that many people had is like, that's it. That's the end of the world order. You know, all bets are off. And I think what we've seen is that was too quick. And that what really has been interesting and what you often have to look to with law to understand whether the law works is what's the response? What is the response to lawbreaking? And here what the response has been has been extraordinarily broad and significant large numbers of states putting in place economic sanctions against Russia. Russia being condemned by the United Nations General Assembly by votes of over 140 states condemning its invasion and then its annexation or purported annexation of parts of Eastern Ukraine being kicked out of the Human Rights Council, being kicked out of the Council of Europe. All these things are responses to the illegal action, and I think each one of these responses helps reinforce the underlying principle that was initially broken. And I think that what you actually might see over time is that the response has this power of reinforcing the very norm that was broken and strengthening potentially the norm that was broken, so that this act that began as this kind of fundamental breakage, a real challenge to the international legal order, could, if this response is sustained, actually end up strengthening and reinforcing it.
Annelise Riles [00:06:23] That's fascinating. So now thinking about this from the flip side, from the point of view of states that are on the sidelines of this conflict, like the United States, does international law provide much guidance or guardrails about what kinds of intervention should or should not be taken in support of Ukraine.
Oona Hathaway [00:06:43] So international law is actually not what's constraining most states in terms of the response that they're providing. International law basically says you can't use force against another state unless it's authorized by the Security Council, which in this case it's the United Nations Security Council won't authorize any kind of action because Russia is one of the permanent five members and can veto any action. Or if you're acting in self-defense or collective self-defense of a state that has been attacked here, Ukraine obviously has been attacked. States that are assisting it in theory, could use military force to respond, but they're not doing so now. Why are they not doing so? They're not doing so not because of anything having to do with international law. They're not doing so because they're afraid of nuclear Armageddon. And so the reason that states are drawing the line at providing military support, economic support, other kinds of support, and then on the other hand, sanctioning Russia is a sense that that's where the red line is in terms of Russia. But there's no legal limits, really, in terms of the kind of support that could be provided to Ukraine, because Ukraine is in the right here. Ukraine has been attacked. Ukraine has the right under Article 51 to defend itself and states have the right to assist it in its defense because it's acting lawfully in using military force to defend its territory.
Annelise Riles [00:07:58] Okay. So let's talk about the crime of aggression. First of all, what is the crime of aggression? What does it mean?
Oona Hathaway [00:08:04] Yeah. So the crime of aggression is, in short, the idea of waging an illegal war. And so when a state engages in the crime of aggression or a person assists in the crime of aggression, they're assisting in waging a war that violates international law today, that means a war that violates Article two four of the United Nations Charter, which is the provision of the charter that prohibits resort to force. Now, there are different ways in which is defined and different context. The Rome Statute, which is the statute that creates the International Criminal Court, defines it more narrowly than that. So the crime of aggression in the Rome Statute is defined as what's called a leadership crime, meaning that you could only prosecute the kind of aggression against people who are responsible, really for for leading the illegal war, for causing the award happens. You wouldn't be able to, for instance, prosecute an ordinary soldier who participated in the crime of aggression.
Annelise Riles [00:08:58] So walk us through how this crime of aggression could be used to deliver some accountability for the victims in Ukraine.
Oona Hathaway [00:09:09] Well, what's challenging here is actually it's probably worthwhile to kind of back up and explain the fact that the International Criminal Court, which I mentioned before, does have jurisdiction over three crimes that are being committed right now in Ukraine, or at least potentially being committed. One is war crimes. Second is a crime against humanity, and third is potentially genocide, if that's being committed. So those three crimes right now, the International Criminal Court is investigating, is busy building cases. And the reason it can do that is because Ukraine agreed to the jurisdiction of the International Criminal Court back in 2014. So back when Russia initially annexed Crimea, Ukraine, though, was not a party to the Rome Statute, not a party to the International Criminal Court said we agree to the jurisdiction of the International Criminal Court for anything that happens in Ukraine going forward. And so that gives the International Criminal Court jurisdiction. But. And here's the rub. The International Criminal Court, though, has the crime of aggression in the statute. It cannot be used against a state that is not a party to the statute and the relevant amendments. What that means is that although the National Criminal Court has jurisdiction over events in Ukraine, and even though the crime of aggression is a crime in the Rome Statute that creates the court, it can't be prosecuted. Russians can't be prosecuted for the crime of aggression in the International Criminal Court because of this exception, which it's important to point out. The U.S. played a role in negotiating this exception. And the U.S. was an advocate for this exception because it didn't want the crime of aggression to be used against it. And the U.S. is not a state party to the International Criminal Court. So in some ways, we're responsible for this exception. Now, that means that if we're ever going to have accountability, it makes things harder. And this is why there's talk about and I've been involved in this project, to try and create a special tribunal to try the crime for aggression. So you have to create a new special court whose job would be to try this crime of aggression, because you can't do it through the International Criminal Court.
Annelise Riles [00:11:11] And who would be the defendants in the special tribunal and how would that work? Can you describe it? Yes.
Oona Hathaway [00:11:16] So the special tribunal would likely be set up in The Hague. I mean, this is obviously up to negotiation and the details will still be sorted out. But the proposal that they've been involved in helping to put together is to create a special tribunal that would be created by recommendation of the U.N. General Assembly, and then it would be negotiated in an agreement between Ukraine and the United Nations. It would be set up, likely set up in The Hague, mostly for convenient sake, because a lot of the evidence and material that's relevant to a special tribunal is also going to be much of the same evidence that's relevant to the work the International Criminal Court is undertaking. And it would be best for them to be able to work together. And the International Criminal Court is located in The Hague, but this court would be very narrow in its focus. It would be focused exclusively on the crime of aggression, which again, is the crime of waging an illegal war. And it would be focused on the leaders. It would be focused on those who are most responsible for carrying out that war, for prosecuting the war, for bringing it about, and the kinds of evidence that's relevant. Much of it is publicly open source, available evidence. And we all know Putin is responsible for the war. We all know the role that Lavrov has played in the war. And then, of course, there are many other high level government officials. Some of that evidence is going to require some of the materials that are being collected now in Ukraine. Some of it probably is going to be provided through intelligence that the U.S. and other allies are collecting. That's going to be relevant to many of these cases. So those are the kinds of materials that are being collected. And in fact, there's a new center being set up in The Hague right now. That is job is basically to begin to collect some of this evidence. So we haven't established a court yet, but there's a center that's being set up to collect the evidence and planning for a future prosecution of the crime of aggression.
Annelise Riles [00:13:01] And so concretely, what would have to happen is one of these leaders would travel overseas to a third country and then they would get extradited to The Hague. Is that correct?
Oona Hathaway [00:13:11] Yeah. Functionally, that's how it's most likely to happen that someone travels abroad and then the country that they're found in voluntarily hand some over. Obviously, there's a possibility of maybe not in the short term, but in the longer term of regime change in Russia. And that could, of course, lead to some people at higher up leadership levels being turned over to a special tribunal for prosecution. So that would be likely. It's also the case that some high level generals potentially could be found on the battlefield. We've had a remarkable number of high level Russian generals killed in the war, and that means that they're close enough to the front lines to actually in there in Ukraine, because Ukraine generally is only using military weapons within its own territory. And so they are close enough to be killed. They likely are close enough as well to be captured. So those are the kinds of people who potentially could be brought before The Hague, before the special tribunal.
Annelise Riles [00:14:03] And would Russia have to agree to the creation of the tribunal if it's a UN body?
Oona Hathaway [00:14:08] No, it does not. And this is the reason for working through the General Assembly, because if you were to try to do this through the Security Council, for instance, the International Criminal Tribunal for the former Yugoslavia and a similar tribunal for Rwanda were set up by the Security Council. But that's not an available option here because Russia clearly is going to veto any effort to create a court to try it for the crime of aggression. So that's clearly off the table. So that's why there's this effort to work through the General Assembly instead, where Russia doesn't hold a veto.
Annelise Riles [00:14:38] And once it's created, do all states have an obligation to extradite?
Oona Hathaway [00:14:43] No, that's a great question. And this is one way in which it's different. So if you're creating it through the Security Council, Security Council has enforcement powers and can compel states to comply. But if you're creating it through the U.N. General Assembly, a General assembly doesn't have those same powers. And so. The General Assembly recommends the creation of the court. The court then is created by the secretary General in cooperation with Ukraine, and they enter into an agreement and then other states can voluntarily comply. They can determine that they want to assist with the court, but no state can be compelled or forced to do so. That is one aspect that is different from those previous Security Council created tribunals.
Annelise Riles [00:15:24] I want to ask you about some of the things happening on the sidelines of the battlefield. I'm thinking in particular about the reports of so many thousands of Ukrainian children being forcibly deported to Russia. Would the leaders of programs like that also be potentially defendants for the crime of aggression, do you think?
Oona Hathaway [00:15:46] Well, that's a good question. My guess is that they're pretty clearly defendants for charges of war crimes and potentially crimes against humanity and maybe even genocide, removing children from their homes and basically, quote unquote, deprogramming them. I mean, really trying to kind of erase so Ukrainian identity and instill a Russian identity in its place. This is what's been documented by my colleagues at the Yale School of Public Health in their remarkable work that over 6000 children have been deported and put into these camps and reeducation programs. I think it's unlikely that that is going to be connected to the crime of aggression itself. Yeah, I think that probably that's a harder case for the crime of aggression. I think those are probably crimes against humanity and war crimes as opposed to the crime of aggression. Really, the crime of aggression is the kind of decision to wage the war in the first place. And these are sort of follow on events which would not exist, but for the war itself. Right. This is one of the reasons people are so interested, including myself, are so interested in the idea of prosecuting the crime of aggression, because we wouldn't have these deportations of children. You wouldn't have the war crimes, you wouldn't have the crimes against humanity if you didn't have the war in the first place. And so that's why it's so compelling and important to have legal accountability for that core underlying fundamental crime. But these other crimes, while also extraordinarily important, will probably be prosecuted, both international criminal courts and then in the Ukrainian courts as well. The Ukrainian domestic court system has already got significant war crimes investigations underway.
Annelise Riles [00:17:15] So we've been talking about accountability for war. But now I want to come back to your research interests, which is peace and prospects for peace here and on. I mean, you've been thinking about this a lot this year as a legal theorist, but you've also been very involved in a practical way with the U.S. government in various capacities. What is your best guess of a pathway to peace here? That's a hard.
Oona Hathaway [00:17:39] Question. The challenge is that Putin, I think, feels that he can't compromise and probably can't compromise in terms of giving up on achieving what he would consider to be some tangible result from this now quite costly war. And at the same time, Ukraine is not, I think, at least at present, anywhere close to conceding territory, which is, I think, precisely what Putin is going to insist on. So my best guess is that if the fighting were to stop, you'd have something more like an armistice as opposed to a peace agreement that would agree to ceding territory to Russia. Because I just don't see unless things got much more terrible for the Ukrainian side, I don't see Ukraine agreeing to give up territory and I don't see Putin agreeing to end the war without gaining territory. And so as a result, I think we're likely to have a kind of uneasy, temporary and temporary can be decades of we've learned from North Korea in South Korea, a temporary armistice that won't necessarily end the war in the sense that the two sides agree to stop fighting, but they don't agree with the results of where they are at that moment. I think that's the most likely result in the short to medium term. But there's a lot between here and there. I think there's a lot happening on the battlefield that's still to be seen. There's a big offensive about to come under way from the Russian side. On the Ukrainian side, they're getting a lot more advanced weapons in hand. And so I do think the fighting will help us get a sense of what is possible in terms of peace. And then there's always the question of what's going to happen in Russia. Does Putin manage to maintain control? Do the oligarchs get angry enough at a certain point that they get interested in a change of leadership? So there's a lot of uncertainties, but as long as the leaders who are there remain in place, I just don't see short of really devastating turn in the war one way or the other a result other than just an uneasy end to the fighting, but not necessarily peace in the sense of an agreement about the end of the conflict.
Annelise Riles [00:19:44] And of course, we're talking here about what we call negative peace, which is the absence of military conflict. But there's also this thing called positive peace, which is all the conditions that make for flourishing lives. And on that point, what do you think? Listeners to this podcast. What can they do to promote positive peace here? Well, it's a great question.
Oona Hathaway [00:20:08] And I think that that's a really important question as well, because I think we sometimes think of global geopolitics and global contests like this as something that like other people responsible for it, the leaders are responsible for it. I can't really do anything. And I think actually it's much more complex than that. And I think ordinary people can make a difference. I think you can make a difference by making it clear to your political leaders what your views are about the conflict. My own views are that Ukraine is clearly in the right and that this is important not just for Ukraine's future, but for the future of the international legal order and for the future of global peace generally. And I think of people make that clear to their representatives, to people who represent them at the United Nations, the people who represent them politically. That can be a powerful message, because while we have seen a very strong response to the war, there have been some countries that had been a little bit more reluctant. And we have seen these votes in the General Assembly, which have been overwhelmingly in favor of Ukraine, over 140 votes in favor. But when you look at the abstentions, many of them are coming from the global south, in particular from Africa and Asian countries. And I think part of the challenge that this exposes is the importance of people understanding their interests are at stake here as well. And for their leaders to articulate that their own interests are at stake here as well. And I think that's also a challenge to the global community and to those other leaders in the U.N. who favor supporting Ukraine to make the case to countries in Africa and Asia that this is in their best interest, and also to listen to the critiques which are really valid critiques that are coming from many of these countries. For instance, there seems to be a lot of double standards going on here, and I think that is a very fair critique. This is one of the reasons the United States has a hard time being a leader on these issues, because the first thing that many people will say to you as well, what about Iraq? And they're right. And they'll say, What about the US record on the International Criminal Court? It's not so great. And they're right. I think we have to admit those mistakes. But I think that everyone everywhere has a stake in the system working and in maintaining global peace and therefore has a stake at what happens in Ukraine. And I think for ordinary people to voice that view to their representatives could really make a difference.
Annelise Riles [00:22:22] Well, finally, I want to ask you a question that I ask all my guests, which is, as you look at the world right now, today, what keeps you up at night? What are you most worried about? And also, what are you most hopeful.
Oona Hathaway [00:22:37] About in the immediate term? I do think we're closer to nuclear Armageddon than we've been for a while, and I do worry about that. Putin has proven to be pretty irrational in waging this war in the first place. And so mutually assured destruction depends on a certain kind of rationality on both sides. You can't count rationality, then things get pretty scary. So that does worry me in terms of what makes me most hopeful. I think what makes me hopeful is that again, this global response to the dangers that have been exposed here and the fact that while I think many had kind of come to take for granted that we live in a world in which states can count on their neighbors not to invade them, I think now we are seeing that is something that is precious and needs to be maintained and that we all need to do the hard work to do that. And the response across the board has been hopeful that people are recognizing that and willing to take important steps to achieve that. And that's the thing that makes me hopeful is my students their commitment to a world of peace and prosperity and their enthusiasm and their confidence in the future gives me confidence in the future. So that really is what in the end makes me most hopeful.
Annelise Riles [00:23:47] Well, Oona Hathaway, thank you for all your leadership and your hard work on this issue. You're an inspiration.
Oona Hathaway [00:23:53] Oh, thank you so much.
Annelise Riles [00:23:57] For more information on this episode and on the Northwestern Buffet Institute for Global Affairs, visit us at https://buffett.northwestern.edu/.