The worst problem is a phony one. That is to say, numerous parties are using the cause of prosecuting Vladimir Putin for “war crimes” as yet another excuse to avoid ending the war — the need for “justice” for war victims as grounds for creating more war victims. This is from The New Republic:
“Inna Sovsun, a Ukrainian parliamentarian from the pro-European Golos Party, believes that the need for justice trumps negotiations to end the war. ‘My understanding is that if we get a deal, we cannot follow the legal procedure of punishing them,’ she said in an interview, noting that an agreement might neutralize such claims. ‘I want justice for kids whose parents were killed in front of them … [for] the six-year-old boy who witnessed his mom being raped for two days by Russian soldiers. And if we get a deal, that will mean that that son will never get justice for his mom, who died of her wounds.’”
If Inna Sovsun’s “understanding” were actually true, the case for continuing a war widely deemed to be risking escalation into nuclear war would be an extremely weak one. But negotiating a ceasefire and a peace agreement ought to be done by Ukraine and Russia. Given the U.S. and U.S.-led sanctions on Russia, and the U.S. influence on the Ukrainian government, such negotiating needs to be done by Ukraine, Russia, and the United States. But none of those entities ought to have the power to create or eliminate a criminal prosecution.
The thinking on “prosecuting Putin,” in dozens of Western news reports, is very much in terms of victor’s justice, with the victor as the prosecutor, or at least the victim being placed in charge of the prosecutor, as many in the United States believe domestic courts should operate. But for the International Criminal Court or the International Court of Justice to function as serious courts, they would have to do their own decision making.
Sure, most everything is under the thumb of the five permanent members of the UN Security Council and their vetoes, but there would be no point in negotiating a U.S. veto when Russia already has a veto. Perhaps the world can be made to work as Washington wants, but it could also be made to work otherwise. The war could be ended today and an agreement negotiated without any mention of criminal prosecutions.
U.S. talk of prosecution for “war crimes” is coming from many of the same people who want to avoid ending the war, want to overthrow the Russian government, want to further expand NATO, want to sell more weapons, and want to get on television. There are reasons to doubt how serious the cause of upholding the rule of law is for them when talking it up also advances each of those other causes — even if it could be done hypocritically against only Russia. There are also reasons to doubt whether the rest of us would be better off if it were done hypocritically against only Russia.
According to a unanimous vote in the U.S. Senate, Putin and his subordinates should be prosecuted for “war crimes” and for the crime of war (known as “the crime of aggression”). Typically “war crimes” talk serves as a mask for the fact that war itself is a crime. Western human rights groups usually operate with a strict ban on noticing that the UN Charter and numerous other laws ban war itself, limiting themselves to picking around the edges at the war crimes. It would be a breakthrough to finally have a prosecution for “the crime of aggression” if not for the hypocrisy problem. Even if you could proclaim proper jurisdiction and make it happen, and even if you could get past the multi-party escalation that built up to the invasion, and even if you could proclaim all wars launched before 2018 out of reach for ICC prosecution for the most serious crime, what would it do for global justice to have the United States and allies widely understood to be free to invade Libya or Iraq or Afghanistan or anywhere else, but Russians now prosecutable along with Africans?
Well, what if the ICC were to prosecute the launchings of new wars since 2018, and particular crimes within wars going back over the decades? I’d be for that. But the U.S. government would not. One of the most prominent outrages in current discussions of Russia is the use of cluster bombs. The U.S. government uses them in its wars and provides them to its allies, such as Saudi Arabia, for wars it partners on. You could just go with the hypocrisy approach, except that even in the current war Ukraine uses cluster bombs against Russian invaders and, of course, its own people. Going back to WWII, it’s common victor’s justice practice to prosecute only things the victors didn’t also do.
So, you’d have to find things that Russia did and Ukraine did not do. That’s possible, of course. You could pick those out and prosecute them, and declare it better than nothing. But whether it would be better than nothing is an open question, as is whether the U.S. government would really stand for it. These are the people who’ve punished other nations for supporting the ICC, put sanctions on ICC officials, and shut down an ICC investigation into crimes by all sides in Afghanistan, and effectively stalled one into Palestine. The ICC seems eager to sit, stay, fetch, and roll over on Russia, but will it obediently navigate all the intricacies, identify only the acceptable topics, avoid all the inconvenient complications, and come out able to persuade anyone that its offices are not headquartered in the Pentagon?
Some weeks back Ukraine was represented at the International Court of Justice, not by any Ukrainian, but by a U.S. lawyer, the same one employed by then-President Barack Obama to tell Congress it would have no power to prevent a U.S. attack on Libya. And this same lawyer now has the Obamanesque audacity to question whether there are two standards of justice in the world — one for small countries and one for big countries like Russia (even while admitting that the ICJ once ruled against the U.S. government for its crimes in Nicaragua, but not mentioning that the U.S. government has never complied with the court’s ruling). He also proposes that the court evade the UN Security Council by going through the General Assembly — a precedent that would evade U.S. vetoes as well.
The ICJ has ordered an end to the war in Ukraine. That’s what we should all want, an end to the war. But an institution opposed for years by the world’s powerful governments just makes the rule of law look weak. An institution that consistently stood up against the world’s top warmongers and weapons dealers, that could be counted on to prosecute the horrors committed by both sides in Ukraine — and to prosecute them to a greater extent as they piled up over time — would actually help end the war without even having to demand it.
