Over the past week, as Ukrainian troops retook the city of Bucha and found its streets littered with the bodies of bound and shot civilians, and as rockets rained down on a train station full of fleeing families, killing dozens, two words were on the lips of diplomats, world leaders and Rights Groups: War Crimes.
But as investigators scour Ukraine for evidence that could be used to bring charges, an uncomfortable fact hangs over their work.
Members of incumbent governments and their militaries, no matter how chilling the evidence against them, almost never face international prosecution for their country’s wartime conduct.
Since the groundwork for such trials was laid at the end of World War II, there have been many successful war crimes trials. But if you look closely, a pattern emerges that does not encourage hopes that the perpetrators of this war will be similarly held accountable.
In practice, war crimes justice was administered by conquerors, as in post-war Germany or American-occupied Iraq; by victors in civil wars, as in Rwanda or the Ivory Coast; or by a new government overthrowing an old one, as in Serbia or Sierra Leone.
Advocates of international law argue that the International Criminal Court and similar bodies apply judgments dispassionately and transparently. Court proceedings typically drag on for years and sometimes end in acquittals: it is hardly brutal victor’s justice.
Yet the fact remains that perpetrators almost never end up in the dock unless handed over there by the victors in a war or power struggle that deposed them.
This means that as long as a government remains in power, any war crimes charges, no matter how well established, are likely to be little more than symbolic. If those in power pretend to be immune to the laws of war, it is because in practice they often are.
This problem has long hampered the world’s efforts to monitor the war, with atrocities going largely unpunished in Syria, Myanmar and many other conflicts where the accused remain in power.
Volodymyr Zelensky, Ukraine’s president, has expressed frustration at these restrictions, telling the United Nations Security Council on Tuesday that he might as well “dissolve all together.”
He urged the council to set up a tribunal into possible Russian war crimes and said of the panel’s failure to hold Moscow accountable: “Do you think the time of international law is over?”
Maybe yes, or maybe it hasn’t quite arrived yet.
justice for some
The frontiers of international justice even stretch back to the Nuremberg tribunals established in Germany after World War II, which became the basis of the international rules of war.
The tribunal should determine that conduct in war could be punished as a crime, but that it would be done according to the principles of due process and impartiality.
Since then, worldwide treaties and international law have banned deliberate attacks on civilians or population centers, among other acts, including torture and genocide.
Still, the Nuremberg tribunal considered only atrocities committed by the defeated Nazis. The conduct of the victorious Allies was left to those countries’ own judicial systems, which, unsurprisingly, blamed some individual soldiers, not their governments.
This model has largely held up ever since.
When Rwanda’s civil war toppled its government, which was widely accused of genocide, it might have been the United Nations that set up a tribunal, but it was the new Rwandan government that decided who would be handed over. It was mostly the vanquished who stood before the court.
Slobodan Milosevic, Serbia’s war leader, was tried in The Hague only after opposition leaders deposed and extradited him. Milosevic, from Serbian soil, would be out of the picture. And outsourcing his punishment would keep the opposition’s hands clean.
The International Criminal Court (ICC), the pre-eminent body for prosecuting war crimes, has indicted around 40 people. All are from Africa. Many are leaders or rebels who have lost a war or power struggle. Many, like Milosevic, were shipped by those who shipped them off.
While the court’s verdicts are believed to be credible, they are sometimes perceived as stamping the outcome of a civil war or power struggle, helping the victors banish their opponents to a distant prison.
The reach of such courts is often limited by the countries in which they are appointed to investigate. The courts had access to Rwanda, Bosnia and Cambodia because the governments of those countries wanted it.
In 2010, the ICC launched an investigation into electoral violence that killed over 1,000 people in Kenya, and later named politician Uhuru Kenyatta and others as alleged instigators. But it dropped the case after Mr Kenyatta became the country’s president, saying it had no way of going ahead.
Before his case was dropped, Mr Kenyatta even traveled to The Hague to sit before the court investigating him, dismissing the ICC as a “toy of waning imperial powers”.
serving justice or power?
Efforts to clear the hurdles to bringing war crimes charges have struggled.
Some supporters of investigations into atrocities in Ukraine have argued that senior Russian leaders could be tried in absentia.
Such was the case with Sudan’s longtime leader, Omar al-Bashir, for whom the ICC issued arrest warrants for war crimes in 2009 and 2010. This effectively prevented Mr Bashir from visiting countries that had signaled they would comply with the arrest warrant.
Yet, like so much in international law, this travel ban was ultimately subject to the whims of national governments. Dozens of countries wishing to host Mr. Bashir continued to do so voluntarily. Those who refused him entry now had legal justification, although many had previously imposed sanctions on him that had the same effect.
The world’s major powers have consistently resisted the ability of international courts to hold them or their allies accountable, even symbolically. The United States, Russia, China and India all reject the jurisdiction of the ICC.
In 2002, a few months after the US-led invasion of Afghanistan, Congress passed legislation requiring the United States to stop aiding any country that does not agree never to send an American to court.
International judicial officials have sought ways to investigate governments still in power in recent years.
In 2016, the ICC opened an investigation into possible war crimes committed during the 2008 Russian invasion of Georgia. Since he was unable to gain access to areas that remain occupied by Russia, the court’s investigations were limited. Prosecutors applied for their first arrest warrants just last month, naming three people in Russian-controlled territory. No one is expected to be arrested.
In 2020, the ICC launched an investigation into American conduct in Afghanistan. In response, the Trump administration imposed sanctions and travel bans on some ICC officials, although the Biden administration reversed these.
Last year, the ICC announced it would investigate possible war crimes in the Israeli-occupied Palestinian territories after a decade of Palestinian lobbying. Israeli officials are expected to deny investigators entry.
But even if the perpetrators are unreachable, international courts can play a role.
For one thing, evidence of crimes in absentia under the auspices of an independent trial can help determine what happened.
After a commercial airliner was shot down over separatist-held eastern Ukraine in 2014, an international probe blamed four people, three of them with ties to Russian intelligence. Some legal scholars have called for a similar approach in the current war.
Proof of accountability or the word of a trusted international court can also be useful tools of statesmanship. Mr. Zelensky could use such accusations to keep up the pressure on western governments for military support or to sway lobbyists like India.
Such cases can also prove restorative for victims when their suffering is acknowledged.
The Georgia ICC investigation gathered testimony from 6,000 witnesses, most from communities that felt the world had forgotten them. It also led to the establishment of a fund, funded by donations from foreign governments, that would provide medical care, counseling and financial support to families displaced by the war.
Yet with a few hundred thousand euros to be distributed among thousands of victims and no power to punish Russian perpetrators, it is hardly the vision of justice conjured up by references to Nuremberg that Mr Zelensky has called for as a model.
“We heard about the ICC,” Tina Nebieridze, a 73-year-old survivor of the Russian invasion of Georgia, told Justice Info, a Switzerland-based development site, last year.
“They have been laughing at us for 12 years, the government as well as the others in Strasbourg or The Hague,” said Ms. Nebieridze. She was resettled in a ramshackle apartment building far from her home, which has now been under Russian occupation for more than a decade, and was unfazed by promises of aid to come. “I have no more hope of justice.”