If peace in Ukraine looks depressingly far away, accountability seems beyond another galaxy.
What are the chances Vladimir Putin will appear in a courtroom to answer for the hell he’s unleashed in Ukraine? They seem vanishingly small.
And yet, national leaders, politicians, international organizations and an army of individuals are working to build the war crimes case against Putin and his regime. The International Criminal Court, the European Court of Human Rights and the International Court of Justice are all investigating crimes committed in Ukraine. Former U.K. prime ministers Gordon Brown and John Major have thrown their support behind an initiative to back a new tribunal.
Last week, U.S. Secretary of State Antony Blinken announced that the U.S. had credible evidence of war crimes committed by Russian forces in Ukraine. “We’ve seen numerous credible reports of indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities,” Blinken said. “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded.”
Drawing the paper sword of international law against Putin’s thermobaric weapons may seem like a liberal delusion, one that feels aimed at allaying the guilt over failing to mount a more robust intervention. But apart from the hope of retributive justice, these legal cases are a fundamental part of determining what kind of world we live in after the Ukraine war.
Realists will note how difficult war crimes cases are to prepare and prosecute. Only six people have so far been convicted and sentenced by the ICC. The Nuremberg trials, where the concept of war crimes was formed and put into practice, were made possible only by the total defeat of Germany in WWII. Russia is likely to remain belligerent into the foreseeable future. Later courts — such as those set up to prosecute genocide and other war crimes in the former Yugoslavia and Rwanda — had to be authorized by the United Nations Security Council, where Russia holds a veto. Fat chance that will happen now.
Yet there are still compelling reasons to pursue war crimes cases now. One is that the process offers a sliver of hope that victims will eventually see justice. Another is it may boost the morale of refugees and others facing the reality of war. As these cases build, they could eventually even encourage forces within Russia to mount a serious challenge to Putin, or high ranking officials to one day turn into witnesses. It is better to gather the evidence now, before it can be destroyed.
Prosecuting war crimes in Ukraine ought to be easier than in other wars, too. This is the most heavily documented war we’ve ever seen. Evidence is being gathered, by researchers on the ground, by those interviewing refugees and by an army of tech-savvy researchers adept at open-source intelligence-gathering who are geolocating attacks on civilians. The investigative site Bellingcat is organizing and storing masses of data. Collating this information to prepare a legal challenge also offers at least one line of defense against future disinformation.
The Right Court
There is plenty of debate about the right way to go about a war crimes case. As Brown noted last week, the ICC can pursue war crimes and crimes against humanity, but it cannot prosecute Russia for the crime of aggression since Russia hasn’t signed on to the ICC’s Rome Statute. He and many others argue a special tribunal is the answer.
That’s certainly appealing. Building cases to bring to the ICC is a painstaking process and can take years. There is a body of international law that gives a lot of leeway to combatants. Much of the evidence that might look clear to most people might not be admissible under the strict criteria of the court. It can be very difficult to connect the dots between, say, an attack on civilians and someone up the chain of command.
Bosnian Serb commander Ratko Mladic was convicted of 10 of the 11 charges against him, including the 1995 massacre in Srebrenica. But his trial began only in May 2012 and concluded only in August 2016. The case involved 592 witnesses and nearly 10,000 pieces of evidence.
By contrast, creating a tribunal to prosecute aggression can be a quicker way to connect the dots all the way to Putin himself. But there are problems with the idea. Russia would not be the only country to view it as politicized and illegitimate. “The whole reason the ICC was set up was so that we didn’t have to create special tribunals for individual conflicts,” notes David Bosco, a professor at Indiana University who has written a book on the ICC. Unless Putin somehow showed up for his trial, wouldn’t that simply highlight the weakness of the whole process?
Roger O’Keefe, a professor of international law at Bocconi University, agrees that a tribunal to try a serving head of state would have a legitimacy problem. “Many states would be exceptionally wary and I’m not even sure the ICC and others involved in international criminal justice would be thrilled because it feeds the accusation that international criminal justice is selective.”
Truth and Reconciliation
We also have to be honest about the limits of what war crimes cases can achieve. Justice and accountability is imperative, but it will take more than a few convictions to bring about lasting change. The Nuremberg trials, which Germans responded to with a nearly 80-year-long mea culpa, were in many ways an exception. Serbs long regarded the special Hague tribunal for the former Yugoslavia as anti-Serb, while Croats and others saw it as too lenient on the Serbs.
Ultimately, Russia will be a threat until it has its own national reckoning. Apart from a brief moment right after the collapse of the Soviet Union, the crimes of that era — the repression, the gulags, the injustices of many kinds — were swept under the rug. Putin, instead, glorified the past. Former world chess champion Garry Kasparov has long argued that a country so unwilling to acknowledge its past could never embrace democracy and still do horrible things. “Down the road, somewhere, the sanitized version of the Communist past will be used to deadly effect, as indeed it already has in Chechnya,” we wrote in a joint article in 2001.
The deliberate amnesia that befell post-Soviet Russia carried bloody consequences. “If the Russian people and the Russian elite remembered — viscerally, emotionally remembered — what Stalin did to the Chechens, they could not have invaded Chechnya in the 1990s, not once and not twice,” wrote Anne Applebaum in her Pulitzer-winning 2003 history of the gulags. But Russians knew little of their own history.
South Africa’s Truth and Reconciliation Commission and the trials in Cambodia of Pol Pot’s brutal Khmer Rouge offer a sense of how countries can try to come to terms with such large-scale crimes. South Africa’s post-apartheid process focused on national unity rather than retributive justice; it took the testimony of 21,000 apartheid-era victims, granted 849 amnesties and made detailed recommendations for reparations. Cambodia’s trials were watched by millions. Both took many years and received fierce criticism for their many imperfections and limitations. But at least crimes were documented and acknowledged, enabling people to try to move on.
Today, the immediate urgency is finding a way to end the war and preserve the territorial integrity of Ukraine. In parallel with that, it’s imperative both for Ukraine and for the international order that war crimes cases are prosecuted in whatever way possible, even if that process is slow, flawed or incomplete. Perhaps those hearings will spark an overdue reckoning within Russia. Because ultimately, however this conflict plays out, Russia will continue to pose a threat, to itself and others, until it not only rids itself of Putin but pulls back the curtain on its past.
Therese Raphael is a columnist for Bloomberg Opinion.