As the war in Ukraine enters its second year, crimes by Russian forces continue to shock the world: the bombing of hospitals and schools, mass graves, torture, sexual violence, and more. But will Russian leaders, including President Vladimir Putin, ever be held to account?
The massive justice mobilization has already surpassed any precedent by orders of magnitude. Ukranian prosecutors have opened sixty thousand war-crime files. The International Criminal Court, under hard-charging British prosecutor Karim Khan, has opened its largest field operation ever in Kyiv and raised unprecedented contributions from Western governments to support its probe.
A dozen other states have jumped in by opening criminal investigations in their own courts, long-arm investigations, and even more, including the United States, have sent forensic experts and financial support to Ukrainian prosecutors. The United Nations has created a commission of inquiry. Everyone, it seems, is getting into the act.
While some have complained of a “circus,” this is precisely the kind of overwhelming judicial response that all mass atrocities should elicit. Victims in places like Ethiopia and Yemen can only hope they will now get the same attention, not to mention Palestinians whose complaints to the ICC of Israeli war crimes have gotten the go-slow treatment since 2015, or the long-suffering victims of the Bush administration’s torture program in Afghanistan, which Khan has “deprioritized,” arguing “limited resources.”
What will come out of all these Ukraine probes? Kyiv is already putting captured Russian foot soldiers on trial, but Ukraine and the ICC are of course aiming higher. Even without proof that Putin directly ordered the bombing of civilian targets or torture and murder, the fact that he has not intervened to stop these atrocities, or to punish his officers who participated in them, would make him criminally liable under the well-established principle of “command responsibility,” though no one will be able to put the handcuffs on Putin as long as he’s entrenched in the Kremlin.
The big debate now is over Ukraine’s insistent call by the Ukrainian government and civil society for an international tribunal to judge Russian (and Belarusian) “aggression,” an idea first floated days after the invasion by the farsighted international lawyer Philippe Sands and that is now rapidly picking up steam with endorsements from the European Union and Germany, and nods from France, the United Kingdom and the United States. It is a compelling idea. The Nuremberg judgment convicting Nazi leaders declared, “To initiate a war of aggression…is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” And in his celebrated opening speech at Nuremberg, US prosecutor Robert Jackson said that “the ultimate step in avoiding periodic war…is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors…if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”
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Since the end of World War II, however, no one has been prosecuted for aggression, and indeed until 2018 no international court even had jurisdiction over the crime, as the big powers, despite Jackson’s admonition, were wary of having a court rule of the legality of their wars (think of the illegal 2003 invasion of Iraq). An aggression tribunal could decisively rehabilitate the criminal prohibition of illegal war, while inaction in this most egregious of cases could render it a dead letter. In addition, because aggression is by definition a “leadership crime,” it leads straight to the top table, without the need to link Putin to specific war crimes on the ground. And since international law accords certain sitting officials, including heads of state, immunity before the domestic courts of another state, only an international court could bring charges against Putin (though it would still lack the ability to actually capture him). The alternatives being discussed are a special tribunal created through an agreement between Ukraine and the United Nations, on the recommendation of the UN General Assembly, and a so-called “hybrid” international tribunal embedded within the Ukrainian court system. Without waiting for either tribunal to be established, the EU and Ukraine announced plans on February 3 to develop an International Center for the Prosecution of the Crime of Aggression in Ukraine in The Hague to coordinate investigations and collect evidence for future trials.
Ukrainians are to be admired for placing so much emphasis on the law, and the wishes of the main victims of this terrible aggression should carry weight, but the rub here, again, is double standards. The only reason the ICC cannot look at Russia’s aggression at the same time it is investigating Russian war crimes and crimes against humanity in Ukraine—some might say the only reason the ICC has not already indicted Putin—is because the United Kingdom, France, and, especially, the United States (not even a party to the ICC’s Rome Statute) prevailed against a majority of ICC states and won a key limitation which, in the absence of a Security Council referral (where they all, like Russia, have a veto), permits the ICC to prosecute aggression only by leaders whose states are ICC parties and have additionally consented to the ICC’s aggression jurisdiction over its own citizens. For Western countries to create a special tribunal to prosecute a crime by Russian and Belarusian leaders for which they are unwilling to submit their own leaders would “consecrate selective justice,” in the words of Luis Moreno Ocampo, the first ICC prosecutor, reinforcing a perception that international justice only kicks in against “enemies or outcasts.” That largely justified perception has undermined the legitimacy of the ICC and the entire justice project in the eyes of much of the world. Ocampo, like many others, proposes instead an amendment to the Rome Statute so that the ICC could prosecute aggression on the same basis as it addresses other war crimes—when it is committed by the nationals of state parties or on the territory of states that have accepted ICC jurisdiction (this is why Russian war crimes in Ukraine and US war crimes in Afghanistan can be investigated though neither is an ICC state party). Current prosecutor Khan agrees, arguing that any gaps in the accountability architecture should be filled by recourse to the ICC that “was carefully negotiated and carefully built and which we are trying to fund.” (It should be recalled that the ICC in 20 years and at the cost of some $2 billion has never sustained the atrocity conviction of any state official anywhere, but is living a renaissance thanks to the war in Ukraine.)
Amending the Rome Statute is cumbersome and will take time, however, and good-faith tribunal proponents have called for a “two-track approach”—a special tribunal now for the aggression against Ukraine and parallel efforts to amend the ICC’s jurisdiction over aggression going forward. But any amendment now could legally be given retroactive effect at least to 2018 and cover the full-scale invasion. More importantly, the Western states behind the tribunal idea have not, in the year since it was floated, made any move even to begin the amendment process, and some key players, such as the UK and France, have not even consented to the ICC’s existing aggression jurisdiction, leading critics to suspect that the two-track approach is “empty PR,” and that once a Ukraine tribunal is established, talk about amending the Rome Statute will evaporate.
Let us be clear, Putin should be prosecuted for presumptive war crimes and aggression, and even if he is not arrested today, these crimes have no statute of limitations and will hang over his head forever. The question is whether the welcome justice mobilization around the horrors he has visited on Ukraine will also be applied to crimes committed by powerful Western actors.
