Respect for the sovereignty, territorial integrity, and political independence of other countries is one foundation of the long, relative peace that the world has enjoyed for the past seventy-five years. For many centuries before 1945, war was a common and lawful tool, whether for colonising land or seizing resources, enslaving peoples, punishing enemies, or inflicting religious dogma.

It is tempting to view Russia’s aggression as the death-knell of the international ban on war and a return to the pre-modern law of the jungle. A permanent member of the Security Council, responsible for maintaining world peace under the UN Charter, is seeking to rebuild its empire by using overwhelming, indiscriminate, and barbaric force.

That view is too pessimistic. Russia’s aggression is a rare exception to the rule against war that holds fast in most places, most of the time, occasional crises notwithstanding. Whereas international wars occurred on average every year from the Middle Ages through to 1945, they are now remarkably infrequent. In part, this is why they are so confronting when they occur. The world – now a stable community of 193 independent countries – is no longer a shifting mosaic of empires and colonies.

Of course, historical perspective is cold comfort to Ukraine under fire. What is more encouraging is the effort by the international community to enforce international law, using the range of legal tools available. Law breaking is normal in every legal system: what matters is how the system responds. Russia has been met with heavy economic sanctions, corporate divestment, global condemnation, coalition building in the UN General Assembly, war crimes prosecutions, and numerous other legal proceedings in international and national courts.

Most pointedly, Ukraine’s international right of self-defence includes the right to request foreign assistance to repel Russia. Many Western states are heeding the call by lawfully providing heavy military weapons and ammunition and even tactical intelligence on Russian targets. All of this has assisted Ukraine to weather Russia’s attack.

That more is not being done is largely a political, not a legal, problem. The law allows foreign countries to throw their own forces into battle against Russia, but no one is willing to do this, unlike in the First Gulf War, when a US-led coalition repelled Iraq’s occupation of Kuwait. Nuclear weapons are not universally banned under international law; as long as they exist, they will powerfully deter those contemplating using force against states that possess them. Australia, too, is not among the sixty-two countries that agreed to ban them in a 2017 treaty.

Sanctions not being stronger or broader is likewise due to the thresholds of economic and political pain that Western governments are willing to bear – not due to any legal limits. More troubling is that most non-Western states, throughout Asia, Africa, and Latin America, are not willing to impose sanctions at all. These notably include large democracies like India, Bangladesh, Mexico, Brazil, and South Africa. Some are even taking advantage of cut-price Russian oil and gas deals, undermining the sanctions of others, or are otherwise prioritising their military or trade links with Russia.

These countries erode the capacity of international law to credibly constrain aggressors. They also freeload off the international security system, expecting to benefit from the ban on military force without shouldering any burden to maintain it. While legitimate human rights questions should be asked about who should wear the pain of sanctions, these concern the targeting of sanctions and do not justify inaction. Simply calling for negotiations, as some of these states do, is also unconscionable, since this inevitably expects the victim of aggression to make concessions to the aggressor, in violation of international law. The modern law insists that Ukraine should not be pressured to give an inch of its territory.

The Security Council’s paralysis due to the Russian veto does not in any way preclude the right of countries to collectively defend Ukraine or to unilaterally impose sanctions. To be sure, the veto is a curse, but also a blessing. Giving them the discretion to act, or to block action, was the price the world had to pay for the great powers to agree not only to be part of the United Nations at all, but also to agree to be responsible for providing, and financing, the global public good of peace and security. Their selective provision of, or failure to provide, security evidently damages international law’s legitimacy in large swaths of the world. But having no entity capable of ever providing it would be far worse. It is hard to imagine the great powers willingly surrendering their veto in our lifetime, absent some seismic event like a world war. They should be scorned whenever they arbitrarily exercise their veto and shamed into more faithfully discharging their responsibilities.

Legal solidarity with Ukraine is just and necessary, and more should be done by more countries. Yet, the relatively muscular international response to Russia itself exposes Western self-interest and double standards in not enforcing international law in other grave situations. Engaging in ‘whataboutism’ is not a cheap rhetorical deflection of criticism of Russia. There is a direct line between Western disrespect for international law and Russia’s belief that power trumps law, as well as the view of many non-Western states that they should put immediate self-interest ahead of enforcing the law against violators like Russia.

The US-led invasion of Iraq in 2003 was a dagger to the heart of the most fundamental rule of world order, by the supposed leader of the ‘free world’. It was backed by another permanent member of the Security Council, the United Kingdom, and supplicant democracies like Australia. It followed the earlier lawless shock of the NATO ‘humanitarian intervention’ in Kosovo in 1999, leading to its forcible separation from Yugoslav sovereignty. These rule-breaking precedents, and the impunity that followed, reverberated from Moscow to Beijing and beyond.

There are many other stark examples where the West or its allies have used, encouraged or tolerated illegal military force. Just as Russia has illegally annexed Crimea as part of Russia, Morocco annexed Western Sahara, Israel annexed East Jerusalem and the Golan Heights, and the United Kingdom maintains illegal colonial rule over Mauritius’s Chagos Islands. The International Court of Justice (ICJ) has ruled all of these situations to be illegal, yet the United States has formally accepted every one of them, for self-serving military, security, or political reasons.

The United States also provides extensive military aid to Israel, which helps to support its de facto annexation of large areas of Palestinian territory via illegal Israeli civilian settlements – also condemned by the ICJ, and under separate war crimes investigation by the International Criminal Court (opposed by the United States and Australia). At the same time, the United States and Western allies like Australia refuse to recognise Palestine as a state, despite most of the world doing so – 139 countries, or seventy-two per cent of all countries. That is more than recognise Western-backed Kosovo (115), or Taiwan – zero countries. Even Taiwan does not declare itself to be independent, yet the United States sabre-rattles about its defence as it if were a sovereign country entitled to collective self-defence.

For more than two decades, Australia recognised Indonesia’s illegal annexation of East Timor, until it was forced by a humanitarian crisis on its doorstep to return to the fold of international law. Even then it refused to recognise East Timor’s rightful maritime claims for many years. It has convicted one person, and is prosecuting another, for exposing Australian economic cheating in the resource negotiations (the subject of Kieran Pender’s cover story in the April 2022 issue of ABR: ‘Shooting the Messenger’).

In the global ‘war on terror’, the United States has used military force, from drones to special forces, in legally dubious circumstances on many occasions, in many countries. In recent years, Western states have generally not protested as Israel has conducted 400 ‘preventive’ military strikes on Hezbollah targets in Syria, none of which, in the absence of any armed attack on Israel, is justified as lawful self-defence. While Saudi Arabia was rightly lambasted for assassinating journalist Jamal Khashoggi, there has scarcely been a murmur as Israel conducted six separate assassination plots on Iranian scientists – not lawful military targets – in the past decade. 

These are examples of Western hypocrisy only in relation to the prohibitions on military force or acquiring foreign territory by force, and then only in recent memory. The legacy of illegal Western violence during the Cold War and decolonisation is another story, whether we think of napalm and Agent Orange in Vietnam, carpet bombing in Laos and Cambodia, or coups and interventions in Latin America and elsewhere. As Russia threatens to use nuclear weapons, recall that the United States is the only country to have ever actually used them – to kill large numbers of civilians in order to force Japan to surrender.

Then there are the flagrant recent Western violations of other fundamental rules of international law such as human rights and international humanitarian law. During the ‘war on terror’, the US government abducted, tortured, indefinitely detained, unfairly tried, and even murdered terror suspects and civilians. Accountability is largely absent. American, British, and Australian war crimes against civilians in Afghanistan and Iraq have also so far gone unpunished. The United States, United Kingdom, and France still sell weapons to Saudi Arabia, which is busy committing war crimes in Yemen. Sri Lanka is Australia’s valued partner in countering people smuggling and interdicting asylum seekers, despite total impunity for Sri Lankan war crimes against the Tamil Tigers in the twenty-five-year civil war that ended in 2009.

The United States has shown the same hostility to international accountability that Russia is showing. It has long opposed and actively undermined the International Criminal Court, including imposing sanctions on it. It withdrew entirely from the International Court of Justice when it lost a case to Nicaragua in 1986, after the Court found that the United States had been illegally using military force against that democracy. It routinely condemns the United Nations for daring to criticise it or allies like Israel. The United States comes second only to Russia in the most vetoes of Security Council resolutions.

Mass violations of the human rights of asylum seekers, including Australia’s illegal, racist detention of tens of thousands of refugees, also warrant mention. Compare that to the open arms now offered by the West to mainly white, Christian Ukrainian refugees.

An exceptionalist United States refuses to become a party to many of the world’s most basic and widely subscribed human rights treaties, including on the rights of women, children, people with disabilities, and migrant workers; against enforced disappearances; and on economic, social and cultural rights, such as rights to education, healthcare, food, water, housing, clothing, work and social security. It also refuses to sign treaties banning terrible weapons like landmines and cluster munitions. It will not even join the quasi-constitutional Convention on the Law of the Sea, despite condemning China for violating that treaty in the South China Sea.

The truth is the West often contemptuously abuses international law, though this tends to be forgotten in the conveniently amnesiac political and media debate about Russia’s current invasion of Ukraine. The West weaponises international law in pursuit of its own political ends, as a cudgel against its adversaries. Or it ignores the law when it gets in the way of American or allied interests, knowing that geopolitical power confers impunity from enforcement. 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, or when non-Western states do not rally to its cause against Russia.

The West’s attitude weakens respect for the rules everywhere. It invites other countries to play the same legal game. It is no accident that Russia has cloaked its invasion in concocted legal justifications such as self-defence, preventing genocide, or protecting Russian nationals. They learned from the West in Iraq, Kosovo, Guantánamo Bay, and Palestine. As power shifts to Asia, China too has learnt from us that power lets you create rules to suit yourself, and bend or ignore rules that don’t.

Obviously not all violations of the same rule are morally or politically the same. Russia’s invasion of Ukraine is worse than NATO’s well-intentioned intervention in Kosovo, and worse than the US invasion of Iraq, which sought to topple a regime on a legal pretext but not swallow the country. But they are nevertheless violations of the same fundamental rules of a stable, mutually agreed world order. All unilateral breaches of these rules, without consequence, weaken that order, respect for it, and the deterrent value of the rules to future aggressors.

To some degree, international law will always be hostage to power and self-interest. It is a decentralised legal system, created by countries in large part to serve their own interests, and lacking any universal ‘police’ empowered to compel obedience. It relies on countries acting in good faith, doing the right thing, and pressuring other countries to uphold their legal bargains. Only with less selectivity, and more consistency and accountability, will international law no longer languish as imperial power masquerading as law, but fulfil its promise as a genuine means of holding states to the rules they created and pledged to obey. If we expect Russia and China to be law-abiding, we must also look in the mirror.

This is one of a series of politics columns generously supported by the Judith Neilson Institute for Journalism and Ideas.