“We’ve really seen an attempt to rewrite the fundamental rules of international society. I think we have had a world order since 1945—as imperfect as it was—that kept the world, to some extent, reasonably safe … But when you hear a nuclear power talking about the possibility of using nuclear weapons in 2022, when you hear a sitting head of state threatening other European nations … You can see that the rules we used to believe applied to everybody have really been stretched,” said clinical law professor Paolo Galizzi. 

In a Feb. 28 virtual panel moderated by law professors Jed Shugerman and Julie Suk, Galizzi joined Director of Fordham’s Center on National Security Karen J. Greenberg and Leitner Family Professor of International Law Thomas H. Lee to discuss America’s ability to de-escalate the international conflict and speculate how events could play out in the coming weeks. 

What Can the U.S. Legally Do? 

The three experts unanimously agreed that Russia had breached international law by invading Ukraine. 

Lee said that in response, the U.S. may take actions that comply with both international law and U.S. law. Under international law, U.S. use of armed force would be permitted because Ukraine invited military intervention from other countries, including specifically a no-fly zone. But U.S. law is a separate matter. Under U.S. law, the President can use armed force to rescue U.S. or allied persons in Ukraine, but Congress may have to authorize other uses of armed force in Ukraine. This includes enforcing a no-fly zone, which may involve U.S. warplanes shooting down Russian warplanes. Under U.S. law, the president can also implement economic sanctions and provide weapons to Ukraine, both of which have already occurred. 

Lee said that in theory, the U.S. may also conduct cyber operations that do not amount to “use of force.” There is a law called the covert-action statute that authorizes the President to make findings, report to some members of Congress, and take secret actions, including encouraging anti-Putin protests in Russia. However, the U.S. has likely not engaged in any covert operations to avoid escalating the dispute, said Lee. 

“And, just as important, what would happen if Putin were ousted? What’s going to happen next in Russia?” he added.

Meanwhile, Volodymyr Zelenskyy, the sixth and current president of Ukraine, has been receiving positive attention, said Greenberg. 

“He has become a hero worldwide, particularly to the younger generations. His phraseology, his way of responding to the people themselves is extraordinary, and I think he’s getting a tremendous amount of credit for it,” she said, adding that Zelenskyy, a former actor and comedian, has shown the world lessons in leadership. 

A Shadow Over Historic Solidarity

Other countries have been stepping up in extraordinary ways, said the panelists. Lee noted that Germany, in an unprecedented move, recently announced that it would supply Ukraine with critical weapons. Galizzi said that he was positively surprised by the strong resolve of not only Germany, but normally neutral Switzerland and countries within the European Union and worldwide. 

“This conflict has really touched upon European sensitivity in a way that I haven’t seen in a long time,” Galizzi said. “I think European public opinion seems to believe that this conflict is different—that this conflict is very dangerous, that this conflict really poses an existential threat to the very survival of the European ideals of democracy and identity.” 

Panel moderator Julie Suk noted that Ukraine recently applied for membership in the European Union, which would give Ukraine more security. It’s a politically smart move, but it’s unlikely that Ukraine will soon receive admission, said Galizzi. The admission process usually requires years of negotiations and requires ratification by all 26 member states, he said. 

“The European Union has been doing all sorts of things, exceptionally. They might give them emergency admission, but I truly believe this is simply not a realistic option in the short term,” he said. 

In addition to requesting membership in the European Union, Ukraine’s desire for membership in  NATO has been growing for some time now, said Greenberg. However, an ongoing conflict between Russia and NATO—and Putin’s insistence that NATO not expand—complicates potential admission. For Putin, admission to NATO is seen as a line in the sand, challenging Russia’s own security, said Greenberg. 

“NATO forces have not been invoked yet in the way they may now be called upon—in other words, to interfere actively in defending member nations—although NATO stood at the ready after 9/11,” Greenberg said. “This is therefore a test of NATO, its purpose and its strength.” 

Economic Sanctions vs. World War III

In a Q&A with the audience, law professor James Kainen asked the panelists about Putin’s motivation behind the invasion of Ukraine. Greenberg said that the answer goes beyond territorial disputes. 

“He is very much living within a Cold War framework and a Cold War mindset, determined to not just necessarily rebuild what the Soviet Union’s empire was, but to really create this larger sense of the Soviet Union … When they write the history books about this, they’re going to go back through time and look at … the many times that Putin has tried to get away with something,” she said, noting Russia’s interference in U.S. elections and the 2014 Russian invasion that led to the annexation of Crimea. “He has been testing the international order … and Ukraine has been a central part of this story.” 

At the heart of the debate is a fundamental question about nationalism and how we define ourselves, Greenberg added.

“The idea of who the Russian people are and how you define the Russian people, ethnically and nationally, is very much at the heart of how this debate is playing out: between Putin and Ukraine, between Russians in Russia and Russian-speaking people like President Volodymyr Zelenskyy who are in Ukraine,” Greenberg said. “And this is a conversation that the world is having globally, not about Russia, but about nationalism and ethnicity—about how we define ourselves and who defines who we are.” 

Lee added, “He wants to make Russia great again—and to give the United States a black eye.”

Galizzi said that it is important for this war to not be seen as a conflict between the West and Russia, but rather as a conflict “between all law-abiding nations and a country that is violating all the basic tenets of international law.” (He referenced a recent resolution by the General Assembly of the United Nations, where 141 countries voted to condemn Russia’s invasion; there were only 35 abstentions and five votes against the resolution.)

The international community as a whole must continue to put pressure on Russia with legal strategies, said Galizzi. But he warned that the options are somewhat limited, considering that Russia has threatened nuclear warfare. 

“We’re only limited in what we can do,” Galizzi said. “I think Biden put it very nicely: insider sanctions or the third world war.”

Sept. 11, 2001, represented the start of a new type of war for the United States: an armed conflict beyond the purview of the existing rules of conventional warfare.

It was not, however, the first time that America had to rethink its positions on the rules of war, according to Thomas H. Lee, the Leitner Family Professor of International Humanitarian Law.

A similar situation arose during the Civil War, Lee said. At the outset, the rules of engagement were designed for naval and land conflicts between powerful European nation states.

“Both 9/11 and the Civil War were instances in which you had armed conflicts that were odd fits to the prevailing rules of warfare,” he said. “Part of what the Bush administration did [in the war on terror]was they proffered interpretations of how the old rules fit the new conflict that were not very plausible.”

Lee is uniquely qualified to comment on the subject. After graduating from Harvard College in 1991, he was stationed in East and South Asia as a U.S. naval cryptology officer for four years. His service included four submarine deployments.

He presently holds three directorships, as the head of Fordham’s international and graduate legal studies, the Fordham-SKKU Summer Institute in International Law in Seoul, Korea, and the Center for International Security and Humanitarian Law at the Leitner Center for International Justice.

Well versed in the law as well as military history and culture, Lee has harnessed his knowledge of the national judiciary’s involvement in foreign affairs and focused in on the rules of war.

His recent work includes a chapter in an anthology about presidential powers, titled, “The Prize Cases: Executive Action and Judicial Review in Wartime.” It is an examination of an 1863 Supreme Court decision about President Abraham Lincoln’s unilateral proclamation of a naval blockade of Southern ports.

During an upcoming sabbatical, Lee plans to complete a book, The International Laws of War and the American Civil War, which will feature his analysis of the Prize Cases and other case studies of the laws of war during the Civil War.

“It’s such a strange world, the laws of war in the mid-19th century,” he said. “Some of the judicial opinions of the time are impenetrable to read, especially when dealing with maritime warfare, because they involve virtually extinct legal questions such as the conditions under which you can take prizes and the rules of blockade.”

Lee said it is worth understanding how Civil War-era American military and political leaders—both of the Union and the Confederacy—thought about the laws of war and applied them to the conflict. He suggested that this thinking is different from today’s.

“Right now, I’m working on a part of the book about prisoner-of-war camps. It’s interesting to read firsthand accounts and see the extent to which the laws of war were considered seriously. These prisoners have one dog-eared international law book, and they’re peering at it, trying to figure out if there’s any legal argument that they must be released, or they must get things,” he said.

“The lawyers, soldiers, and politicians of the time took the laws of war a lot more seriously, in an innocent, naïve kind of way. I guess today, since the legal realist revolution, the typical politician or scholar’s view is that a lot of law is politics,” Lee said. “Those guys weren’t so cynical. They might have believed it on some level, but they also seemed to believe the law was much more of a serious external constraint.”

The most important point, he said, is that the Civil War presented truly vexing legal questions for everyone involved. When Union leaders decided to enact a naval blockade of the Confederacy, one consequence they had to consider was that, according to laws at that time, a blockade could only be staged against a sovereign entity. Therefore, to enact the blockade might be an implicit acknowledgement of the Confederate States’ sovereignty. Since the South could use this to gain treaties with France and England, the North took this action very seriously.

“The United States did think that there was a lot of room to massage such laws, to construe them in a way that was within their military interests. But leaders did take them seriously in a way that’s different from today,” Lee said.

All of this ties into Lee’s work on the Supreme Court’s role in international affairs. Today, the nation’s foreign affairs are generally thought of as the president’s prerogative, in consultation with Congress. But the Supreme Court wasn’t always the domestic, civil rights-focused institution that it is now, Lee said.

“The [founders]intended the Supreme Court and the federal courts to be big foreign policy players, diplomatic courts, so to speak.” he said.

One need only look at the roster of Supreme Court justices to see how the court’s focus has changed. Lee notes that three of the first four chief justices of the United States—John Jay, Oliver Ellsworth and John Marshall—held positions in the state department or as foreign ministers of the United States.

Today, candidates for the highest court in the land are typically appellate lawyers, judges or academics.

“If we started picking people like James Baker or Bill Richardson to be Supreme Court justices, that would be consistent with the way the court was intended to operate at the founding,” Lee said. “Hillary Clinton, for example, after she finishes as secretary of state, would be the sort of Supreme Court justice the framers envisioned, regardless of whether you agree with her politics.”

The exchange program, which is currently offered as a summer institute, will bring together American and Korean students with those from several other countries. As part of the program, Fordham law students will develop Korean-language skills while learning about the country’s legal system.

“Fordham Law’s ongoing and developing relationship with SKKU gives Fordham Law students access to one of Korea’s finest law faculties and the exchange programs help U.S. students to develop contacts in and knowledge of one of Asia’s most important global economies,” said Thomas H. Lee, associate professor of law at Fordham who created the program in 2006 and serves as its director.

American students in the program will be eligible to apply for internships at South Korean companies, law firms and government agencies. After only two years in operation, the Fordham-SKKU Summer Institute of International Law has become the second largest summer study abroad program run by any U.S. law school. In its first year, the summer institute enrolled more than 120 students from six countries.

The SKKU exchange is one of many international programs at the Law School. “This new student exchange arrangement is a perfect complement to Fordham Law’s Summer Institute of International Law at SKKU,” said Toni M. Fine, assistant dean for international and non-J.D. programs

“This program gives foreign-trained lawyers and law students a wonderful opportunity to learn about U.S. law at one of the top law schools in the United States,” said Toni M. Fine, J.D., assistant dean for international and non-J.D. programs and who serves as co-director of the institute with Thomas H. Lee, J.D., associate professor of law.

The institute has enrolled 66 students from 19 countries. As part of the program, students will take courses in subjects ranging from U.S. constitutional law to intellectual property. In addition, the institute will supplement classroom instruction with numerous field trips to federal court, a New York law firm and the United Nations.