Is the world condemned to living with an avoidable reality that makes no sense in the realms of good faith? A lesson from two world wars says no.

Russia has now invaded Ukraine, in spite of America’s spirited efforts to prevent that eventuality. As Taylor Swift and Bon Iver would sing, we think we’ve “seen this film before.” Many times, in fact. In the summer of 1914, Germany was poised to invade Belgium. Britain did her best to rally the rest of Europe to prevent that invasion. But a cascade of fatuities rolled along unrestrained, bumping into one another. And Germany invaded Belgium, and the world went to war.

During the period before that war, humankind laboured for long under one particular reality that made no sense in the realms of good faith. It was this. Any strongman at the helms of a nation was free to unleash a war of aggression and dared the world to stop him. International law was silent on the matter. All the world could do was fight him or let him have his way. It was that reality that emboldened Napoleon Bonaparte in his wars of world domination. On that occasion, the world (more accurately his European neighbours) did stop him. They banished him to Elba first, and finally to St Helena in 1815 when it became clear that he hadn’t learnt his lesson the first time.

There is something about military power that intoxicates strongman leaders into thinking they can always win wars they hadn’t yet started, despite lessons from Pericles and past wars that should urge greater care. So, it was that in August 1914 the European strongman of the day, Germany’s Emperor Wilhelm II, intent upon his own adventure in world domination, invaded Belgium en route to what he imagined would be the routing of France and Russia (of all ironies it now would seem). Britain joined arms against Germany, and the US eventually followed suit.

When that war ended—with Germany vanquished—Britain and France decided during the Paris Peace Conference of 1919 that the time had come to end the reality that made no sense in the realms of good faith. The two countries deployed their best legal brains and combined political brawn in a determined effort to revise global modus vivendi in one respect. International law had to be amended so that any head of state who unleashed a war—or fought one in an inhumane way—must be punished personally by an international court, like a common criminal.

It was a revolutionary idea at first. The amendment provoked much intellectual quibbling (as all new ideas do) about whether the change could hold. The press between all that quibbling and the staunch determination to effectuate the amendment produced the mushy formulation in the Versailles Treaty saying that the Kaiser was being arraigned for “a supreme offence against international morality and the sanctity of treaties;” and that his envisaged punishment was “with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.” But the profound point was sufficiently made: he was to stand trial personally before an international court of law. Aggression was thenceforth to join war crimes as forbidden conducts in international law.

At the end of the summer of 1939, the world had a déjà vu. Adolf Hitler, Europe’s strongman of the day, invaded Poland, just as Vladimir Putin has now done to Ukraine. And as with Putin, Hitler thought himself strong enough to soldier on, regardless of global outrage and international law’s lessons from 1919. As we know, the invasion of Poland unleashed a chain of events that led to the Second World War.

We also know that the end of that war settled more clearly that amendment to international law that was made in 1919. Aggression was confirmed as an international crime. With Hitler having killed himself as Germany’s war effort was imploding upon him, all the surviving leaders of the Third Reich—including Grand Admiral Dönitz who succeeded Hitler as head of state—were arraigned and tried before an international criminal court convened in Nuremberg. So, too, were the war time Prime Minister of Japan, Hideki Tojo, and his cabinet colleagues tried by a similar tribunal in Tokyo. They were tried for commencing a war of aggression, for crimes against humanity, and for war crimes.

For some time now, it has become clear that the clash of heedless hubris of America’s claims of having “won” the First Cold War (although there is no armistice treaty that settled that claim, let alone one that diminished the strategic ability of the “vanquished” to fight again soon) and Russia’s maudlin need to be taken seriously has thrust a creeping Cold War II upon the world. It remains tragic that the end of Cold War I presented opportunities for lasting peace which world leaders managed to squander. Then again, what else is new?

We are now left to hope that Russia’s invasion of Ukraine will end soon, will not expand the conflict, and will not provoke a third world war.

Better still, perhaps international law has a phoenix yet in the ashes of this latest conflagration. In that sense, the one thing that this invasion can do for humanity is engage the importance of adjusting international law once more, in order to save humanity from one avoidable reality that makes no sense in the realms of good faith.

It is this. Some UN members States who enjoy veto power at the Security Council now use it—or more accurately abuse it—openly and shamelessly to block that Council from exercising its power to refer to the International Criminal Court crimes committed in territories of non-ICC States or by their nationals. That is why the situation in Syria, for instance, could not be referred to the ICC. And the world seems to have accepted that oddity as “realpolitik” with which humanity must put up. It doesn’t have to be that way.

It is time to change that arrangement. The world’s strongman leaders must be forced to think twice about commencing wars of aggression that unleash incalculable misery upon children, women and men.

The needed adjustment requires amending the Rome Statute (the treaty that created the ICC) and empower the UN General Assembly to refer cases to the ICC, when it has become clear to the world that the veto power has been exercised in very bad faith to block referrals to the ICC, while insouciant military power presses a heavy boot of brutality down upon the neck of humanity.

To be sure, this proposal will provoke very stiff opposition from all those nations who have benefitted from the cynical abuse of the veto power at the UN. But such objection can only show one thing: individual criminal accountability is a dread prospect to even the most powerful strongman leaders. It is precisely for that reason that the amendment should be made. It is up to the membership of the Rome Statute to amend it. Security Council veto power cannot prevent that amendment. Humanity needs it.

Chile Eboe-Osuji was the President of the International Criminal Court from 2018 to 2021 and a judge at the Court from 2012 to 2021. He is now the Herman Phleger Visiting Professor of Law at Stanford Law School; the Distinguished International Jurist at the Lincoln Alexander School of Law of Ryerson University, Toronto, and Special Advisor to the University President; the Paul Martin Senior Professor of Political Science, International Relations and Law at the University of Windsor; and, Senior Fellow at the Carr Center at Harvard’s Kennedy School of Government.