Lauri Mälksoo: International law and morality in the Ukraine-Russia war

Lauri Mälksoo.
Lauri Mälksoo. Source: Priit Mürk/ERR

Mälksoo sheds light on a recent debate between German professors on whether Ukraine should negotiate with Russia. The position of those German intellectuals who put moral pressure on Ukraine rather than Russia constitutes an alarm for small countries, betraying willingness to sacrifice smaller nations if only others are left in peace.

Because Germany is one of the guarantors of security in Central and Eastern Europe, Estonians would do well to keep up with debates happening inside German society. As has been the case before in near history, the opinion section of the Frankfurter Allgemeine Zeitung (FAZ) is setting the mood.

Reinhard Merkel's end-of-year theses

The debate was sparked by Reinhard Merkel, professor emeritus of criminal law and legal philosophy at Hamburg University, former member of the German Ethics Council, late last year. While Merkel opens by admitting Russia's war in Ukraine constitutes a violation of international law, from there, his focus is on whether Ukraine is morally obligated to negotiate with Russia as a victim of aggression. According to Merkel, while international law deals with jus ad bellum (the start of military conflicts) and jus in bello (international law in an ongoing conflict), the field of ethics at least should also deal with exiting war (jus ex bello). Merkel's reasoning combines two connected but nevertheless separate discourses: international law and ethics. The professor admits that countries have the right to self-defense in case of armed aggression (Article 51 of the UN Charter), while also suggesting that this self-defense has moral limits. Firstly, due to the threat of nuclear war; secondly, when there is dissonance between the goals of self-defense and the number of lives and human suffering required to achieve them.

Because international law is silent on jus ex bello, Merkel believes it should fall under political ethics. Relevant argumentation grows out of the just war theory that preceded the ban of using armed force in 20th century international law and covered a wider range of casus belli, including to protect one's religion in another country, ensure balance of powers etc. Merkel admits that the ban on being the first to bring armed force to bear in modern international law has rendered all of them obsolete alongside any moral justification for starting a war. For example, if democratic countries wished to use armed force against North Korea to put an end to human rights violations, it would be contrary to international law and give other states a valid reason to support the DPRK (despite the regime's unpleasant nature). Merkel's conclusion is that modern international law has removed moral considerations from regulating the use of force; that protecting world peace takes precedence over considerations of justice. After all, international law recognizes just two grounds for use of armed force: armed self-defense and a collective decision of the UN Security Council to authorize use of such force to protect international peace and security.

One of the main conclusions in Reinhard Merkel's article is that Ukraine also has an obligation in the current war. The obligation to negotiate the end of the war with Moscow. While Merkel emphasizes that this obligation is pursuant to political ethics, not international law, according to the professor, Ukraine is indirectly participating in the continuance of the horrors of war. Despite the fact Russia unleashed the war (in violation of international law), Ukraine is responsible for its humanitarian rights violations, which it cannot fully blame on Russia. Merkel also suggests Ukraine bears a measure of responsibility when it comes to the threat of global nuclear war and loss of Ukrainian lives. The professor believes that the price of a complete Ukrainian victory would simply be too high – both for the people of Ukraine and perhaps (because of the threat of nuclear war) the world. However, Merkel rushes to add that the moral obligation to negotiate does not amount to an obligation to capitulate.

From there, Merkel moves on to Crimea, suggesting that even though Russia's 2014 annexation was contrary to international law, its borders constitute a red line for Ukraine today. He claims that most people in Crimea prefer to live under Russian rather than Ukrainian sovereignty. That there is a measure of stability, and that Ukraine should no longer be able to justify retaking Crimea through self-defense; that such a solution (which is highly favorable for Russia) defends peace. Therefore, one of Merkel's conclusions is that Ukraine moving to retake Crimea through force of arms would fundamentally amount to launching a "new" war. That it would not be a continuation of the original defense, but rather a new armed attack. Merkel urges the German government to keep this in mind when deciding whether to make future military aid available to Ukraine. Were Ukraine to try and retake Crimea (using Germans arms), according to Merkel, Germany would be an accessory to breach of international law.

Aust, Schlögel, Moellendorf and Goldmann reply

Merkel's piece in FAZ quickly merited a response from Helmut Philipp Aust, professor of international law at the Free University of Berlin. Aust begins by admitting that the sides – Russia and Ukraine – have radically different starting positions when it comes to potential talks. Aust challenges Merkel's logic in three main points. Firstly, Merkel's navigation of legal and ethical positions is unconvincing. Where the current solution proposed by international law is not to his liking, he uses his own moral argumentation to undermine it, while the law and philosophy are partisan elsewhere, in places where it does suit the author.

Secondly, Aust finds Merkel's conclusions for Crimea to be not only mistaken but also contrary to international law. While international law leaves room for interpretation in the details of this matter (for example, when to consider an armed conflict ended), Aust believes there is no reason to talk about a stable new situation in Crimea since the 2014 annexation. The Russian authorities' human rights violations against Crimean Tatars have been documented well enough. Based on Merkel's logic, aggressors could dismantle the territorial integrity of victim countries piece by piece. This would deliver a setback to the ban of using armed force in international law.

Thirdly, Aust notes that Merkel is less interested in international law banning the use of armed force than a vague notion of peace according to which a country that comes under attack should cease defensive activities in the interests of the common good and in order to avoid the destruction of its citizens. In truth, the 1966 human rights conventions also protect nations' right to self-determination. What is more, recent experience causes Ukrainian citizens to draw the correct conclusion that their lives would hardly be "protected" in Russian occupied Crimea.

Reinhard Merkel's theses also sparked a comment from historian Karl Schlögel, who has studied Eastern Europe and the Soviet Union, in another leading German paper. Schlögel criticizes Merkel for not being up to speed with the reality in Ukraine, while still taking it upon himself to urge a victim of aggression to make concessions. He suggests that Merkel's postulate according to which Ukraine would be committing a new act of aggression by seeking to retake Crimea completely upends the roles of criminal and victim. Schlögel refers to Merkel simply as "Putin's voice" in this matter. For Merkel, the legal argumentation is just a cover for betraying a courageous European nation that has decided to fight back, while Schlögel admits the train of thought finds traction in certain parts of German society.

Another response to Merkel's article in FAZ comes from Goethe University professor of international political theory and philosophy Darrel Moellendorf. Merkel also relied on Moellendorf in his article as one of the leading philosophers/authors to have coined the term jus ex bello. Moellendorf starts by making it clear that he unequivocally disagrees with Merkel's proposition that Ukraine is somehow obligated to make concessions to end the war. The author suggests he and Merkel have different interpretations of the possibilities and proportionality of Ukrainian self-defense. Moellendorf emphasizes that the human suffering Merkel is pointing to has largely been caused and created by Russia, and that urging Ukraine to yield ground because of it amounts to blaming the victim. Merkel's logic is retrograde in that the more damage the aggressor would inflict, the bigger the victim's "moral" obligation to make concessions would become, which simply cannot be the case. This could theoretically be argued were there widespread protests in Ukraine against the government's policy of continuing to fight back; but there is no such news. In summary, Moellendorf finds that Ukraine's current resistance is entirely defensible in the just war theory, while Merkel's logic amounts to moral confusion.

Finally, the debate in FAZ comes to Matthias Goldmann, a lecturer of international law from Wiesbaden. He believes that Merkel's position raises the issue of the relationship of international law and ethics. The way Merkel maneuvers between international law and ethics (morality) makes the two look like autonomous systems. In Merkel's interpretation, the ban on extensive use of armed force in international law somehow removes morality from considerations therein.

Goldmann believes that matters of war in international law have always been closely intertwined with ethics, been based on moral philosophy. Leading modern legal theories uphold a close connection between the law and morality. The ban on the use of armed force is largely based on its moral convincingness. This way, the just war theory Merkel references did not disappear with the Covenant of the League of Nations in 1919 but rather lives on in the modern ban on use of armed force. The nature of armed self-defense in international law –that Ukraine is in no way obligated to "stop" in defending itself and make concessions to the aggressor – is, according to Goldmann, both legally and ethically defensible, serving both the right of self-determination of nations and human rights. Therefore, Goldmann finds controversy between the right to self-defense in international law and moral philosophical jus ex bello, as constructed by Merkel, to be baseless.

In closing. What to think in Estonia?

The debate sparked in Germany by Reinhard Merkel could be understood as follows. Because international law makes it impossible to justify Russia's conduct in Ukraine, to reach the conclusion that Ukraine could make some concessions, Merkel – who is a lawyer, while not a specialist of international law – turns to mortality and ethics. Merkel proposes that morality and ethics are sufficiently removed from the unequivocal reactions to aggression provided by international law.

Of course, the judgments and limits of international law can and must be debated in the key of political philosophy and ethics for which purpose influential literature can be found; for example, Michael Walzer's "Just and Unjust Wars." That said, highlighting (in personal interpretation) ethics as something removed from law in order to justify a political preference – in Merkel's case putting pressure on Ukraine to engage in talks and making sure it cannot retake Crimea – inevitably undermines international law and its proposed solutions to aggression. After all, we are not quick to set ethics in contrast with the law in domestic matters when the latter's proposed solutions (for example, a parliamentary decision or a top court's judgment) are unsympathetic or clash with our interests.

While Merkel is seemingly seeking to protect the world from a nuclear conflict and Ukrainians from destruction, he also brings to mind Bertold Brecht's words in The Threepenny Opera: "First comes food, then comes morality." In other words, we cannot really be sure it is the good fate of Ukrainians that he is concerned with. For Estonia, as a small country, the positions of Merkel and other German intellectuals who mostly lay moral pressure on Ukraine and not Russia constitute an alarm bell. They are prepared to sacrifice the small [nations] if only other nations and countries are left alone. Something along those lines happened to Estonia and the other Baltic countries in World War II. We were betrayed by this very cast of mind, according to which the small being swallowed is sometimes an acceptable price to pay for peace.

The relationship of international law and ethics has been a topic of debate for centuries in which two schools collide: legal positivism and natural law. Baltic German professor of international law and legal philosophy Carl Bergbohm (1849-1927), who moved from the University of Tartu to the University of Bonn following the 19th century Russificiation campaign, was fiercely critical of the latter, suggesting that their philosophical musings work to undermine positive international law (as agreed between countries). Merkel and Moellendorf's political-philosophical difference in attaching meaning to jus ex bello seems to affirm Bergbohm's realization that "everyone has their own natural law," which is why such considerations cannot serve as basis for law.

While Reinhard Merkel received a "worthy rebuttal" from German internal law experts, the effect of such arguments and mentality in German society must not be underestimated. Chancellor Olaf Scholtz seems to be maneuvering an archipelago of such legal-ethical judgments.

Lauri Mälksoo is a professor of international law at the University of Tartu and also teaches the university's international law and human rights master's program in Tallinn. He has a PhD from the Humboldt University of Berlin.


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Editor: Urmet Kook, Marcus Turovski

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