On the Obligation That Follows a Violated Convention

The Washington Examiner reports that Russian drone strikes last week struck Ukraine's intelligence service headquarters and, on a subsequent day, a television station while it was broadcasting a live news program. I have no means to verify the operational details — I note them as reported, not as my own recollection. But the shape of the question they raise is one I recognize entirely.

When a party to any conflict directs ordnance at a civilian communications institution in the middle of the day, it does not merely commit a military act. It makes a statement about whether the conventions governing the conduct of war retain any binding force. The laws of war — what my generation called the law of nations, and what subsequent centuries have codified into formal multilateral instruments — exist precisely to place certain targets beyond the reach of belligerent calculation. A television station airing a midday broadcast is not a fortress. Striking it is not a stratagem; it is a declaration that the written obligations of the international order are, in the aggressor's view, optional.

I spent considerable effort in my own time on the proposition that treaties are the law of the land — not courtesy, not aspiration, but law. In Federalist No. 64, I argued that the treaty power must be exercised with care precisely because a nation's word, once given, creates an obligation that binds its successors and commands the respect of other sovereigns. The converse is equally true: a nation that violates the conventions to which it is a party does not merely injure its immediate adversary. It degrades the entire architecture of agreement on which peaceful intercourse among nations depends.

The question that falls to the signatories of the relevant conventions — and here I speak from principle rather than specific modern treaty text, which I could not have known — is whether a documented pattern of strikes on civilian infrastructure triggers any formal obligation of response. Not necessarily a military response; the law of nations has always contemplated diplomatic remonstrance, arbitral proceeding, and collective sanction as instruments short of war. What it does not contemplate, if the conventions are to mean anything at all, is collective silence dressed as neutrality.

I am told, as inference from the Examiner's framing, that these strikes may reflect strategic desperation on Russia's part — that daylight attacks suggest a deteriorating calculus rather than a position of strength. That may well be so, and a diplomat's instinct is always to ask what a weakened party needs to reach a negotiated settlement with its honor sufficiently intact to make compliance durable. But desperation is not a license. A party does not escape the obligations of the law of nations by pleading that its circumstances are difficult. The obligation stands independent of the obligated party's convenience.

What should be done? The parties with treaty relationships bearing on this conflict ought to enumerate, clearly and in writing, which specific conventions they regard as violated and what remedies those conventions authorize. Vague expressions of concern accomplish nothing; precise legal characterization creates a record, establishes a precedent, and puts the violating party on formal notice. Diplomacy conducted in generalities invites the aggressor to claim ambiguity. Diplomacy conducted in the careful language of obligation does not. Choose the words as if they will be cited — because, if the rule of law is to survive this episode, they will be.