On Wednesday, US Secretary of State Antony Blinken announced that the US has credible evidence of war crimes committed by Russian forces in Ukraine. “We have seen numerous credible reports of indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities,” Blinken said. “Russia’s armed forces have destroyed homes, schools, hospitals, critical infrastructure, civilian vehicles, shopping malls and ambulances, killing or wounding thousands of innocent civilians.”
Drawing the paper sword of international law against Putin’s thermobaric weapons may seem like a liberal delusion aimed at assuaging blame for failing to undertake more robust intervention. But aside from the hope of retaliatory justice, these legal cases are a fundamental part of determining what kind of world we live in after the Ukraine war.
Realists will note the difficulty of preparing and prosecuting war crimes cases. So far, only six people have been convicted and convicted by the ICC. The Nuremberg trials, in which the concept of war crimes was formulated and put into practice, were made possible only by Germany’s total defeat in World War II. Russia is likely to remain belligerent for the foreseeable future. Subsequent courts – such as those prosecuting genocide and other war crimes in the former Yugoslavia and Rwanda – have had to be authorized by the United Nations Security Council, which Russia vetoes. Fat chance that will happen now.
Yet there are still compelling reasons to prosecute war crimes cases now. One is that the process offers a glimmer of hope that justice will eventually be found for the victims. Another reason is that it can boost the morale of refugees and others confronted with the realities of war. Eventually, if these cases pile up, they could even encourage forces within Russia to seriously challenge Putin, or high-ranking officials who will one day become witnesses. It’s better to collect the evidence now, before it can be destroyed.
The prosecution of war crimes in Ukraine should also be easier than in other wars. This is the best documented war we have ever seen. Evidence is being gathered, by researchers on the ground, by people interviewing fugitives, and by an army of tech-savvy researchers skilled at collecting open-source intelligence and geolocating attacks on civilians. The investigation site Bellingcat organizes and stores vast amounts of data. Gathering this information in preparation for a legal challenge also provides at least one line of defense against future disinformation.
There is much debate about how to properly proceed in a war crimes case. As Brown noted last week, the ICC can prosecute war crimes and crimes against humanity, but it cannot prosecute Russia for the crime of aggression because Russia has not signed the Rome Statute of the ICC. He and many others argue that a special tribunal is the answer.
That is certainly attractive. The creation of cases to be presented to the ICC is a tedious process and can take years. There is international law that gives combatants a lot of leeway. Much of the evidence that may seem clear to most people may not be admissible under the court’s strict criteria. It can be very difficult to connect the dots between, for example, an attack on civilians and someone in the chain of command.
Bosnian Serb commander Ratko Mladic was convicted of 10 of the 11 charges against him, including the 1995 Srebrenica massacre. However, his trial did not begin until May 2012 and did not end until August 2016. The case involved 592 witnesses and almost 10,000 pieces of evidence.
In contrast, creating a tribunal to prosecute aggression can be a quick 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 consider it politicized and illegitimate. “The ICC was created solely 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. If Putin somehow didn’t show up for his trial, wouldn’t that just highlight the weakness of the whole process?
Roger O’Keefe, a professor of international law at Bocconi University, agrees that a tribunal designed to try an incumbent head of state would have a legitimacy problem. “Many states would be exceptionally cautious, and I’m not even sure the ICC and others involved in international criminal justice would be thrilled because it fuels the charge that international criminal justice is selective.”
truth and reconciliation
We must also be honest about the limits of what war crimes cases can achieve. Justice and accountability are essential, but it takes more than a few beliefs to bring about lasting change. The Nuremberg trials, to which the Germans responded with a nearly 80-year mea culpa, were exceptional in many ways. Serbs have long viewed the Hague Special Tribunal for the Former Yugoslavia as anti-Serbian, while Croats and others have viewed it as overly lenient towards the Serbs.
Ultimately, Russia will be a threat until it has its own national reckoning. Except for a brief moment right after the collapse of the Soviet Union, the crimes of that era – the oppression, the gulags, injustices of all kinds – were swept under the rug. Instead, Putin 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 terrible things. “Somewhere down the street, the sanitized version of the communist past will be used to deadly effect, as indeed it has already been done in Chechnya,” we wrote in a joint article in 2001.
The willful amnesia that swept through post-Soviet Russia had bloody consequences. “If the Russian people and Russian elite remembered – instinctively, emotionally remembered – what Stalin had done to the Chechens, they could not have invaded Chechnya in the 1990s, not once and not twice,” Anne Applebaum wrote in her 2003 note the Pulitzer-winning History of the Gulags. But the Russians knew little about their own history.
South Africa’s Truth and Reconciliation Commission and Cambodia’s brutal Khmer Rouge trials of Pol Pot offer a glimpse 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 retaliatory justice; it took the testimonies of 21,000 apartheid-era victims, granted amnesties to 849 and made detailed recommendations for reparations. The trials in Cambodia were watched by millions. Both took many years and were heavily criticized for their many imperfections and limitations. But at least crimes were documented and acknowledged, which allowed people to move on.
Today, the immediate urgency is to find a way to end the war and preserve Ukraine’s territorial integrity. In parallel, it is imperative for both Ukraine and the international order that war crimes cases are prosecuted in every possible way, even if this process is slow, flawed or incomplete. Perhaps these hearings will trigger an overdue reckoning in Russia. Because ultimately, whatever the outcome of this conflict, Russia will continue to pose a threat to itself and others until it not only gets rid of Putin but also pulls back the curtain on its past.
More from the Bloomberg Opinion:
• When, why and how Putin could use nuclear weapons: Andreas Kluth
• Russia exploits two major holes in financial sanctions: Paul J. Davies
• Putin may finally be preparing for cyber war: Parmy Olson
This column does not necessarily represent the opinion of the editors or of Bloomberg LP and its owners.
Therese Raphael is a columnist for Bloomberg Opinion. She was a contributing editor to the Wall Street Journal Europe.