Hospitals bombed, civilians with their wrists tied found murdered — just about every day, the news carries descriptions of new Russian atrocities committed in Ukraine. People are gathering evidence of war crimes – over and above the underlying crime of a war of aggression. And all this is leading . . . where? Maybe nowhere.
Let’s face it: war crimes trials are for losers. How many times have we seen a head of state or other high official put on trial while he (or she) is still in power? None. The winners try the losers. The losers may richly deserve it. But they won’t get what they deserve unless they lose a war or lose power.
The Serbian leader Slobodan Milosevic would never have been handed over to the International Criminal Tribunal for the Former Yugoslavia if he hadn’t been forced out as Yugoslavia’s president. As Max Fisher has written in The New York Times, “[m]embers of sitting governments and their militaries, no matter how horrifying the evidence against them, virtually never face international prosecution for their country’s conduct in war.”
In other words, there will be no justice without regime change and the toppling (and capture) of Putin.
Another hard truth: I doubt there has ever been a war without both sides committing war crimes. Not to excuse what Putin and his forces have been doing in Ukraine, but once the shooting starts, you don’t have to be a Russian – or a Nazi or a Bosnian Serb – to do bad things. Even in the “good war,” World War Two, the good guys weren’t blameless.
Yes, it was only officials of Nazi Germany and militaristic Japan who got convicted at the post-war tribunals and hanged. You can debate the morality of hanging them, but in terms of the convictions, they certainly deserved what they got. The world should not have let them get away with the Holocaust, the Rape of Nanking, the Bataan Death March, the shootings of prisoners, the attacks on London, and other atrocities.
But American officials should have been glad that we were the only ones deciding who was and was not guilty of such war crimes. Otherwise, someone on our side might have had to answer for the fire bombings of Dresden and Tokyo, the atomic bombings of Hiroshima and Nagasaki, the smaller acts of killing and maiming that took place in both theaters of war. (Also recall the Katyn Forest massacres in which our ally, the Soviet Union, killed more than 20,000 Polish military and intellectual leaders.)
In 2017, the BBC quoted the former Bosnian Serb parliament speaker, Momcilo Krajisnik, who said that “[e]very people, Serbs, Muslim, Croats, consider those indicted from their own people as not guilty, but they consider only the others guilty.” Krajisnik added, self-servingly, that “there is a lot of subjectivity.” Indeed.
Justice for war crimes is an issue that goes beyond the practical difficulty of arresting a head of state in his own country. There are also problems with international law, unstable as it is. “It gets increasingly difficult to make the linkage evidence [that a defendant knew or should have known that certain acts were being or would be committed] stick the further up the chain [of command] you go,” explained Tom Dannenbaum who teaches international law at the Fletcher School in an interview with Heather Stephenson for Tufts Now. “Those [higher-level] prosecutions tend to be more complicated and sometimes fail. Responsibility for starting a war of aggression – a key issue at Nuremberg – might, however, be easier to pin on people higher up the chain.” Inherently, Dannenbaum continued, “the crime of aggression—the decision to invade Ukraine, in this case—is a leadership crime.“
“There’s an additional challenge with respect to Putin,” Dannenbaum said, “which is that the head of state is immune from criminal prosecution before any other state’s courts for as long as they remain head of state. Foreign ministers can also invoke this protection. “The only exception to that,” Dannenbaum added, “and this is controversial, is that the [International Criminal Court (ICC)] would take the position that Putin’s head-of-state immunity doesn’t block a case at the International Criminal Court. . . . So the ICC could issue an arrest warrant and states would then have an obligation to arrest and transfer Putin were he in their territory. But states have not always accepted the ICC’s position on head-of-state immunity.”
Alleged war criminals have been tried in a number of ways. High-ranking Nazi officials went before the famous ad hoc Nuremberg tribunal. Over the years, lesser Nazi war criminals have been tried in regular German courts. A Tokyo tribunal tried war criminals of imperial Japan. War crimes committed during the 1990s during the battles in Yugoslavia went before the International Criminal Tribunal for the Former Yugoslavia
The 1949 Geneva Conventions govern – or are supposed to govern – a signatory nation’s treatment of another signatory nation’s uniformed soldiers. Protocols added later forbid both indiscriminate attacks and the use of indiscriminate weapons. The United Nations Office of the High Commisioner for Human Rights has explained that protocol like this: “there are two types of indiscriminate attack. The first involves a failure to identify a specific military target as an objective. An example sometimes given of such an attack is that of the mass bombing of London or Dresden during the Second World War where care was not taken to aim the attack at specifically military objectives located in inhabited areas. . . . The second type can be said to involve the use of weapons whose effects . . . cannot be controlled once released and limited solely to the disabling of the military target, such as certain types of cluster munitions, chemical or biological weapons.” The cluster munitions and timed land mines shot into populated areas of Ukraine surely qualify, and there are reports that Ukrainians are also using cluster munitions.
The ICC has already been asked to look into what Putin’s Russia has been doing in Ukraine. It has also been looking into what Russia did in the Republic of Georgia 14 years ago. Established by the 1998 Rome Treaty on the International Criminal Court, the ICC takes jurisdiction over war crimes, genocide, crimes against humanity, and “the crime of aggression.”
Russia isn’t a member, and neither is Ukraine. Nonetheless, Ukraine has referred Russia’s alleged crimes to the ICC. A member state, or a non-member state such as Ukraine that has issued a declaration accepting ICC jurisdiction over crimes committed on its territory, or the U.N. Security Council, can refer a matter to the ICC. The court’s prosecutor can also start an investigation on his or her own. At the request of more than 40 members, Russia’s current conduct is already before the ICC.
Once the court decides someone is guilty of a crime, any nation (whose laws enable it to) can claim “universal jurisdiction” — that is, it can arrest and send to the court or try itself anyone who has allegedly committed crimes against humanity whether or not the person is a citizen of that country, and whether or not the crime was committed on that country’s soil.
The idea of universal jurisdiction drew widespread attention in 1998 when the former Chilean dictator, Augusto Pinochet, was arrested in London because a Spanish judge wanted him extradited for the murder of Chilean and Spanish citizens. (He wasn’t extradited.) But until Pinochet’s arrest, most people hadn’t realized such prosecutions were even possible. But, of course, it is. Now, a German court sentenced a former Syrian colonel, Anwar Raslan, to life in prison for murders and for torturing more than 4,000 prisoners. Raslan had gotten asylum in Germany, but the crimes had been committed in Syria.
Don’t count on Putin endangering himself as Raslan and Pinochet did, but one could theoretically try him in absentia. That is the only conceivable way, without serious regime change, that he will ever be judged by an international court. Such a trial in absentia has been done to another head of state with virtually no practical result. Max Fisher writes in the Times that it “happened to Sudan’s longtime leader, Omar al-Bashir, for whom the ICC issued arrest warrants in 2009 and 2010 for war crimes. This effectively barred Bashir from visiting countries that had signaled they would comply with the warrant.
Still, this travel ban — like so much of international law — was ultimately subject to the whims of national governments. Dozens of countries that wished to host Bashir continued to do so freely.” Bashir wasn’t handed over to the ICC until last year, two years after he had been driven from power.
In general, though, the ICC hasn’t favored trials in absentia – Article 61 says “the accused shall be present.” A 2020 appellate decision may have opened the door to looser interpretation of the rules under which the tribunal operates. The treaty that established the court does allow trials in the defendant’s absence if the defendant has waived his or her right to be present. The defendant must have notice of the legal proceedings.
Most experts don’t agree with the appellate decision, according to an article in the blog of the European Journal of International Law, a British legal scholar, Caleb Wheeler, a lecturer in law at London’s Middlesex University and author of The Right To Be Present At Trial In International Criminal Law. Wheeler points out that the criteria for waiving an initial appearance don’t meet standards set by the European Court for Human Rights. He suggests that in the case the appellate court decided, waiving the right to appear in person was made a condition of the defendant’s release, so it couldn’t really be considered an uncoerced decision.
In other words, it’s complicated legally, and unlikely to result in putting Putin in the dock.
Before the ICC existed, there were several tribunals set up to try people for war crimes committed in specific conflicts. Nuremberg was the first. The next was the International Criminal Tribunal for the Former Yugoslavia, established in 1993, which ran for 24 years. It got worldwide attention by putting the Serb leader and former Yugoslavian president Slobodan Milosevic and other former leaders, including the “butcher of Bosnia,” the former Serb commander Ratko Mladic, on trial.
This tribunal didn’t pluck defendants from their seats of power. Milosevic wasn’t arrested until he was an ex-president – and until Yugoslavia was only hours away from a deadline beyond which the United States would withhold financial aid. Secretary of State Colin Powell said that unless the country kept cooperating with the Hague tribunal, the U.S. would withdraw its support of an international donors’ conference that could provide a lot more financial aid. Milosevic was originally arrested for corruption and embezzlement, for which the case was weak, and then handed over to the tribunal. He died before his trial ended.
Five years ago, when the Yugoslavia tribunal was wrapping up its work, the BBC reported that “When Mevludin Oric goes back to eastern Bosnia he sometimes spots men who he last saw in 1995 executing hundreds of his kin from Srebrenica.” Mevludin tells the BBC, “They are walking, laughing in my face, and . . . they are walking free.”
The bad actors of Bosnia aren’t the only ones walking free. Despite the chemical attacks on civilians and the bombings of hospitals, Bashar al-Assad is still very much the man in Syria, and no one has hauled him off to the Hague. No one has yet been convicted for the Sudan’s campaign of murder, rape, and the destruction of villages in Darfur, when an estimated 2.5 million people were displaced, and 300,000 killed. However, 13 years after a warrant was issued for his arrest, one man, Ali Mohammed Ali Abd-al Rahman, an alleged commander of the fearsome janjaweed militia, has recently gone on trial at the ICC for his part in it. (He says they arrested the wrong guy.)
Russia hasn’t signed the treaty that created the ICC. President Bill Clinton did sign it in the last weeks of his second term, then urged George W. Bush not to have it ratified; Bush withdrew the signature. Succeeding administrations have been more or less supportive – unsurprisingly, Trump’s was much less – but we’ve still never signed on. Why not? Basically, we don’t want other countries going after our own alleged war criminals or violators of human rights.
U.S. officials have said that they fear the process being used politically, that there are really no checks on the power of the prosecutor and judges, that the offenses for which the court can punish people are too vaguely defined, that the U.S. has soldiers in at least 100 countries around the world and it doesn’t want them vulnerable to politically-motivated arrest. The U.S. can’t avoid the court’s claims of jurisdiction, but it has concluded bilateral agreements with a number of countries that have promised not to arrest Americans for crimes against humanity or send them to the ICC.
“In the light of perceived or actual anti-Americanism around the globe,” Markus Benzing has written in the Max Planck Yearbook of United Nations Law. “the concern seems to prevail that the ICC might be used by less potent states to second-guess foreign policy decisions of the United States and ultimately as an instrument of vendetta against United States foreign policy.” Some would also argue that accepting the principle of universal jurisdiction would undermine national sovereignty.
Putin, who thinks Russia’s national sovereignty extends to Ukraine, evidently waxes nostalgic about the old Soviet empire, which was basically the Tsarist empire under new management. In Alexander Solzhenitsyn’s novel, The First Circle, the greatest of the Soviet tsars, Joseph Stalin, says repeatedly that “you can’t make an omelet without breaking eggs.” The current tsar, Putin, clearly doesn’t mind breaking a few eggs of his own. Why should we be shocked? And, as long as he remains president of Russia, who’s gonna stop him?
Arguably, the Yugoslavia tribunal, by holding people like Milosevic accountable, convinced the world that one can no longer commit war crimes with impunity. Last year, after Ratko Mladic lost an appeal of his conviction for genocide and crimes against humanity, Joe Biden said, “[t]his historic judgment shows that those who commit horrific crimes will be held accountable,”
It would be nice to think so. But to think so in the face of what we see and read about Ukraine every day, and the linternational law hurdles and muddles in place, requires a major leap of faith.