Harold Hongju Koh, the Bacon-Kilkenny Distinguished Visiting Fellow at Fordham Law School who argued on behalf of Ukraine at the International Court of Justice in 2022, discussed the legal dimensions of the Ukraine-Russia conflict at an event on January 26, nearly a year after the start of Russia’s invasion.
Koh is a former legal adviser for the U.S. Department of State, working in various governmental positions under four US presidents. He has taught at Yale Law School since 1985, including in his current position as Sterling Professor of International Law, and previously served as dean, and has received many human rights and international law awards.
He was joined by two Fordham Law professors at the event, Thomas H. Lee, Leitner Family Professor of International Law at Fordham Law School and former special counsel at the U.S. Department of Defense, and Martin S. Flaherty, Leitner Family Professor of International Law and founding co-director of the Leitner Center for International Law and Justice.
Koh began by providing a brief history of the conflict in Ukraine, beginning with the Maidan Uprising in 2013. In February 2022, Russia launched a ground invasion of Ukraine, causing widespread violence and destruction in the process.
“Putin tried to overwhelm and intimidate the Ukrainians by massive use of war matériel. But his ‘shock and awe’ strategy failed,” said Koh. “And so he settled in for a brutal war of aggression, atrocity, and attrition focused on securing Crimea, the key ports for grain, and four eastern provinces, including the Donbas.”
Ukraine’s “legal war,” said Koh, necessitated a “full-court press lawfare strategy,” including two cases before the International Court of Justice, two cases before various tribunals under the Law of the Sea Treaty, five before the European Convention on Human Rights, efforts to launch a preliminary investigation before the International Criminal Court, a trade and transit case at the World Trade Organization, as well as several commercial arbitrations about expropriation of Ukrainian assets in Crimea.
Koh also gave the closing arguments at the March 2022 ICJ provisional measures hearing in The Hague. He described his strategy in the case as centering on one key point. “I decided to put this question at the front: when a prominent member of the Security Council decides with premeditation to commit naked aggression and war crimes by launching a brutal military campaign against an innocent neighbor—based on the false pretext that the target state is committing genocide—is this court utterly powerless to stop it?” said Koh. “The answer obviously must be ‘no.’ And the implicit message is, if you’re on this court, and you don’t stop it, why is this court here?
“The tragedy we’re witnessing was precisely what our modern international legal system was designed to prevent,” continued Koh. “If you do not act decisively against this level of aggression and atrocity, why should any permanent UN member see international law as a meaningful obstacle to what it might claim to be ’necessary military action’?”
The ICJ ruling was a crucial step in the global response to the invasion, explained Koh, establishing the legal rulings that would provide the legitimacy for the international community to act.
“No court in the world can enforce its own rulings,” replied Koh. “As the U.S. Supreme Court famously said, it is the province and duty of the judicial department to say what the law is … we needed some judicial declaration of illegality to support the many ongoing efforts to stop the aggression, sanction the perpetrators, and bring them to justice.
“What we were looking for was to brand Putin as an outlaw, isolate him and his cronies, and strengthen the case for more accountability going forward,” said Koh. “It may take time. But Putin’s short game is force, our long game is law.”