The war in Ukraine has given the relatively unsexy field of international law a moment in the spotlight. An unprecedented global effort to probe and prosecute war crimes is underway, with local and international investigators fanning out across the war-ravaged country to gather evidence of Russian atrocities – even as the fighting grinds on.
The focus on war crimes has also renewed interest in questions about the strengths and limitations of international law in constraining aggression and imposing accountability.
Three Russian soldiers have already been convicted in Ukrainian courts. Money and resources have poured in to help Ukrainian Prosecutor General Iryna Venediktova investigate the nearly 20,000 alleged breaches of the laws of war her team has registered. The International Criminal Court, which opened its own probe in March, sent its largest-ever field deployment to Ukraine. An infusion of funding followed. And the United States dispatched Attorney General Merrick Garland to Ukraine, where he announced the creation of the Justice Department’s War Crimes Accountability Team, to be helmed by U.S. “Nazi hunter” Eli Rosenbaum.
The outpouring of international attention reflects, in part, the brazenness of Russia’s violations of the laws of war. Searing images of mass graves, bombed hospitals and children missing limbs, combined with harrowing accounts of rape, torture and forced deportation, have stirred widespread moral outrage. Some charge that racism and geopolitics play a role, too, with Western countries all too willing to ignore abuses inflicted on Black and Brown populations in other parts of the world, particularly in conflicts where the West is complicit.
The Russian invasion has breathed new life into an international justice system widely seen as toothless and ineffectual. At its center is the ICC, which celebrated its 20th birthday on Friday. The court was established to prosecute the most egregious international crimes, including genocide. In two decades, the ICC has drawn criticism for netting just three war crimes convictions and five for interfering with justice. It has proved challenging to get suspects to the court’s seat in The Hague. Leaders in Africa have for years accused the court of bias.
The refusal of Russia, China and the United States to accept the court’s jurisdiction hasn’t helped – effectively creating an international legal system that lets the most powerful countries off the hook.
The George W. Bush administration effectively withdrew the United States’ signature from the court’s founding treaty, citing fears that U.S. officials or troops could be tried. “The International Criminal Court is troubling to the United States,” Bush told reporters in July 2002, when his war in Afghanistan was almost a year old and he was laying the groundwork for an invasion of Iraq since widely condemned – including, accidentally, by Bush himself – as unjustified and illegal.
The United States stymied an ICC attempt in 2003 to investigate crimes committed in Afghanistan. Years later, the Trump administration sanctioned former ICC prosecutor Fatou Bensouda over her effort to probe possible U.S. war crimes in that conflict. Though the Biden administration lifted the sanctions, current prosecutor Karim Khan opted last year not to focus on possible crimes by U.S. troops there.
On Russia’s invasion, however, the United States has warmed up to the ICC – without going so far as to become party to it. Some experts see the war as a chance for the court to prove its worth. “This is the ICC’s moment,” David Crane, founding chief prosecutor of a special international tribunal for Sierra Leone, told the Associated Press. “They have to get this right.”
The conflict has also revived debate about possibilities for the use of international law to punish a crime for which the ICC lacks jurisdiction: the crime of war itself.
One of the 19th century’s most famous pacifists was a Russian. The writer and peace activist Leo Tolstoy serves as the antiwar hero of Yale historian Samuel Moyn’s book “Humane: How the United States Abandoned Peace and Reinvented War.” The politics of pacifism that gained prominence in Tolstoy’s era gave way to a global preoccupation with making war more humane, Moyn writes, arguing that the emphasis on waging “clean” war – fought by the book, with fewer casualties – has served ultimately to perpetuate conflict.
The Nuremberg trials of top Nazi officials after World War II focused on the newly established, fundamental crime of aggression itself, more than the war’s particular atrocities. But in the decades afterward, a war crimes paradigm focused on aberrant acts committed during the conduct of war, as defined in international agreements, took precedence in international accountability efforts – a shift Moyn warned has undermined efforts to prevent war in the first place.
The brutal conventional battles unfolding in Ukraine appear to have reawakened the West, at least, to war’s inherent horrors. Much of the shelling and airstrikes that killed soldiers and civilians and displaced more than 12 million Ukrainians is entirely legal under the laws of war. But in a chorus of condemnation, world leaders, including President Joe Biden, have decried the invasion itself as unjust and illegal. Calls are growing to prosecute Russian President Vladimir Putin for aggression.
Tolstoy “would celebrate that the Ukraine war has returned a lot of people to thinking about aggression, illegal war, in ways they might not have in the past since Vietnam,” Moyn said. Legal experts on both sides of the Atlantic see this overarching crime – the crime of illegal war – as the best chance for someday putting Putin on trial.
“Aggression is relatively provable,” James Goldston, director of the Open Society Justice Initiative, told me. “Unlike some war crimes and crimes against humanity, aggression is by definition a leadership crime.” Goldston’s team has put together a model indictment for building a case against Putin and other senior Russian officials.
Ukraine could bring charges domestically, and Venediktova’s office has compiled a list of 623 suspects for the crime of aggression. But a more powerful international court may be needed for the uphill battle of accountability, legal experts say.
European lawmakers are leading the charge to establish a special tribunal to prosecute top Russian officials for the crime of aggression. “The worst crime of all is the war itself, the groundless and brutal aggression against a peaceful neighbor,” a Parliamentary Assembly of the Council of Europe delegation said after a June visit to Kyiv.
Still, the proposal has plenty of skeptics. During a visit to the Post’s newsroom last month, European Commissioner for Justice Didier Reynders said his office had “many legal concerns” about a special tribunal.
It’s too early to say whether this moment will revive the long-dormant global pacifist movement. Calls to prosecute Putin for aggression have come in tandem with a remarkable embrace by the West of militarism in support of Ukraine, marking a pivot from the isolationist tendencies of recent years.
Germany broke with its decades-old reticence to send weapons into conflicts. NATO is scaling up its European footprint. The United States has approved tens of billions of dollars in military and humanitarian aid in Ukraine, with support for major arms shipments spanning the political spectrum. (And while the conflict’s negative economic ramifications have dominated global headlines, plenty of people profit off war, as historian Jackson Lears points out in a review of Moyn’s book.)
Some war fatigue appears to be setting in. But U.S. and European leaders have doubled down on their resolve to help Ukraine secure military victory – not only for its sovereignty, they say, but to shore up the “rules-based international order” under threat.
That justification for backing war has drawn accusations of hypocrisy. “I have certainly never seen anyone from the ‘global south’ respond to that phrase with anything approaching a straight face,” Sam Greene, a politics professor at King’s College London, wrote in a tweet thread. “We have much for which to atone.”
When the alternative is a global reality in which wars of conquest can be waged with impunity, though, supporting Ukraine’s fight may offer the best chance of securing a more lasting global peace, Greene suggests. But that will also require a more even application of justice.
As Moyn put it: “I think a lot of people are wondering, what steps can we take to make the concern with aggression applicable to more states more of the time, rather than once in a lifetime?”
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