Western double standards enabled invasion of Ukraine
Ben Saul says the West should not be surprised when others treat international law as a cudgel
The response to Russia’s invasion of Ukraine is a textbook example of how international law should be enforced against violators: weapons for Ukraine. Tough sanctions on Russia. Corporate boycotts and divestment. War crimes and human rights investigations. Resounding condemnation by the United Nations General Assembly.
There are gaps, to be sure. The Security Council is paralysed by the Russian veto. Important countries, including China, India and South Africa, have refused to impose sanctions. Within realpolitik constraints, the world’s response is still far better than expected. Legal solidarity with Ukraine is certainly right. Yet it raises troubling questions about Western double standards, and how this undermines the rules-based international order the West says it champions.
The invasion of Iraq in 2003 was illegal, but George W. Bush, Tony Blair and John Howard, then the leaders of the US, the UK and Australia, are feted as elder statesmen. Impunity also followed Nato’s humanitarian but manifestly illegal intervention in Kosovo in 1999.
In the “war on terror”, the US was a serial violator of international law, abducting, torturing, indefinitely detaining, unfairly trying, and even murdering terror suspects. Serious accountability is nowhere to be seen.
US, British and Australian war crimes against civilians in Afghanistan and Iraq have also largely gone unpunished. The US and UK still sell weapons to Saudi Arabia, which uses them to commit rampant war crimes in Yemen.
Russia annexed Crimea and seeks more Ukrainian territory by force. Yet, in 2020, the US recognised Morocco’s illegal annexation of Spain’s former colony, Western Sahara, so that Morocco would recognise Israel. Spain is also moving in that direction. The International Court of Justice, in its advisory opinion, said that Western Sahara did not belong to Morocco.
In 2019, the International Court said Britain was unlawfully still colonising the Chagos Islands, which belong to Mauritius, and that all countries must cooperate to end British rule. The US and UK have vital military bases there.
The US continues to recognise Israel’s illegal annexation of Palestine’s East Jerusalem and Syria’s Golan Heights. It provides military aid which sustains Israel’s occupation of Palestine and suppresses Palestinian self-determination.
This includes protecting Israeli colonial settlements, which have been condemned by the Security Council as an obstacle to peace and are being investigated by the International Criminal Court as war crimes.
Australia notoriously recognised Indonesia’s illegal annexation of East Timor, because it suited its security and economic interests. Even today, Australia is prosecuting whistle-blowers for exposing Australia’s spying on newly independent East Timor.
UN bodies have also condemned Australia for illegally detaining refugees over the past three decades and violating its indigenous peoples’ rights. Compare that to the welcome mainly white
Ukrainian refugees have received in the West.
The US admirably pioneered international criminal justice at the Nuremberg and Tokyo trials after World War II. However, even that is tainted as victors’ justice, with the allies refusing to hold themselves to account for their own crimes, including firebombing of civilians in cities. The die was thus cast early for Western hypocrisy in the new world order.
The US Senate has now encouraged the International Criminal Court to investigate Putin. However, the US has refused to become a member of that court. The US Senate passed the Hague Invasion Act in 2002 to thwart cooperation with the court, and the Trump administration imposed sanctions on court staff. In the 1980s, the US withdrew from the International Court of Justice, where Ukraine sued Russia, when the court found that US was illegally using force in Nicaragua.
The US still refuses to accept many basic global rules, including treaties on the rights of children and people with disabilities, or prohibiting landmines and cluster munitions. It will not even join the Convention on the Law of the Sea, despite lambasting China for violating that treaty in the South China Sea.
Russian violence and nuclear threats are surely terrible. Remember, though, that the US is the only country to have used atomic bombs in a first strike that incinerated over 110,000 Japanese civilians in 1945. The US also liberally used napalm and Agent Orange in Vietnam.
The West weaponises international law in pursuit of its own political ends, as a cudgel against its adversaries, but ignores it when it gets in the way of itself or its friends. Western selectivity signals that international law is not law at all, just a smokescreen for power. The West then seems surprised when its lectures about a “rules-based international order” fall on deaf ears.
The West’s attitude invites other countries to play the same legal game. It is no accident that Russia has cloaked its invasion in concocted legal justifications.
As power shifts to Asia, China too has learned from the West that power lets you create rules to suit yourself, and bend or ignore rules that don’t. For the nonWestern world, a point comes when the enforcement of international law seems so selective, so hostage to power, and so privileging of Western interests that it no longer looks like law at all. It is just imperialism cloaked in law, for which only contempt, not respect, can be felt.
It is no accident that Russia has cloaked its invasion in concocted legal justifications
Ben Saul is Challis Chair of International Law at The University of Sydney and an Associate Fellow of Chatham House in London. He has taught law at Harvard and Oxford and is a counterterrorism adviser to the United Nations