The 1 percent chance that Putin will be prosecuted
The road to war crimes tribunals is exceedingly long—and full of dead ends.
On April 4, U.S. President Joe Biden called Russian President Vladimir Putin a “war criminal” in response to horrific images showing the corpses of civilians in the Ukrainian town of Bucha, a suburb of Kyiv. Russian troops retreating from the areas near Kyiv, Chernihiv, and Kharkiv left in their wake numerous reports of alleged war crimes. The Ukrainian government has already received more than 2,000 reports of crimes against civilians, according to Ukraine’s ambassador to the United States, Oksana Markarova.
Biden promised that such crimes will be prosecuted. But he did not comment on how he plans to ensure that happens. Understandably so, as the process, in the best-case scenario, is highly onerous and can take years from start to finish—and can easily be derailed by contingencies along the way. Given the challenges at every stage of the process, from documentation to hearings at The Hague, the probability of ultimately holding Kremlin officials to account is not high.
The first hurdle in war crimes cases is documentation and reporting. That’s a particular challenge during active hostilities and especially so in the case of Ukraine, given the sheer number, variety, scale, and geographic spread of the reported crimes, said Beatrice Godefroy, the Europe director at the Center for Civilians in Conflict. “The way you collect information—the level of detail, of granularity, for each and every incident—is very different in the context of Donbas 2021 than it is in the context of Kharkiv 2022,” she said, comparing data collection in a low-intensity conflict to the higher-intensity conflict going on now.
There are further social and political challenges to documenting war crimes cases, as Angana Chatterji, a scholar at the University of California, Berkeley and co-editor of Majoritarian State: How Hindu Nationalism Is Changing India, said via email. “A lack of domestic and international political will and infrastructure can truncate or vitiate investigative and justice efforts,” she said, adding that such conditions “can destroy or compromise evidence.”
“Access to qualified personnel and technology are equally important,” Chatterji said.
Ukraine’s civil society and political infrastructure are actually reasonably well prepared to document both the war crimes that Russian troops are allegedly committing and civilian harms due to conflict, Godefroy said. “What’s most important is what the Ukrainians are doing on this question,” she said, noting that there’s a nationwide effort being mounted around the national ombudsman and the office of Prosecutor General Iryna Venediktova to report and track incidents of humanitarian law violations and war crimes. The U.N. Human Rights Monitoring Mission in Ukraine is collecting evidence via social media platforms such as Facebook, Viber, and Telegram, according to spokesperson Tanya Tesliuchenko, and Ukrainian NGOs such as Ukraine.5am are doing the same.
But there’s a downside to the loads of documentation and reporting available both through NGOs and videos uploaded onto social media, international criminal attorney Kip Hale said. “We have tons of crime-based evidence,” or documentary evidence showing a war crime, he said. But investigators have to verify that evidence, and they don’t have the manpower to sort through all of that documentation, 95 percent of which Hale estimates is “redundant.” And the crime-based evidence isn’t what will bring Putin and other high-ranking Russian officials to justice; evidence linking higher-ups to war crimes is much more difficult to come by.
Crime-based evidence can help lead to this linkage evidence, though, Hale says; an investigator might interview Russian soldiers responsible for a war crime, which could lead to the most incriminating evidence—“his cell phone, his computer, any documents found on his person”—which might include an order to commit a war crime.
CNN’s Barbara Starr tweeted on April 6 that a senior U.S. intelligence official believed the United States “will be able to identify the Russian units” that committed the atrocities in Bucha and that the intelligence community is prioritizing finding the units responsible for what appears to be the wholesale slaughter of civilians there. “I would just tell you, just looking at the imagery, when you see individuals with their hands tied behind their backs, and evidence of being shot in the head, that certainly appears to be premeditated, appears to be planned,” another defense official reportedly told Starr. Prosecuting the soldiers who directly commit war crimes and atrocities, the so-called trigger-pullers, “is easy,” Hale said, but that’s not the goal; the goal of a war crimes prosecution is to go after the person or people who set the policy “that when you implement that policy, that leads to crime.”
But finding the units responsible could lead higher up the chain of command, helping investigators and authorities to establish linkage evidence between atrocities like those seen at Bucha and more high-profile Russian officials. However, even those insider witnesses, should international authorities interview them, “are scared as shit … and may not know everything,” Hale said.
“There are international and national mechanisms available right now with jurisdiction over those who bear individual criminal responsibility,” Jane Stromseth, an expert on post-conflict justice and accountability at Georgetown Law, said in remarks during the USIP panel in March. “I would highlight in particular the International Criminal Court and national proceedings in Ukraine and in other countries with jurisdiction.” As Stromseth noted, the ICC’s chief prosecutor, Karim Khan, has already been to Ukraine, and the ICC’s investigative team has begun collecting evidence.
But, Stromseth said, the ICC will need international support—financial as well as logistical—to carry out an effective investigation and prosecution, and even then, there will be gaps in what the ICC can prosecute. Most notably, the ICC can’t prosecute the crime of aggression in this case, since neither Russia nor Ukraine is a party to the ICC. But, she insisted, there are ways to get around these hurdles, including a special tribunal for aggression and a “web of accountability,” involving national-level war crimes prosecutions, in addition to what the ICC itself brings forth.
In Ukraine itself, says Tetiana Pechonchyk, the head of Ukraine.5am, the criminal code isn’t specific enough to appropriately prosecute war crimes. For example, the rape of a civilian by a Russian soldier wouldn’t be tried in the context of conflict—“just simple rape,” she said. Making sure that Ukraine has the systemic capacity to appropriately try war crimes will be crucial, since Pechonchyk estimates that 90 percent of the war crimes and international human rights law violations committed during the war will be tried in Ukraine.
Even assuming the ICC or the nations that have opened criminal investigations issue arrest warrants for those deemed responsible, they can still evade accountability. An arrest warrant issued by the ICC has no enforcement mechanism and depends on the cooperation of different nations’ authorities, and there are still many nations friendly enough with Putin that they could harbor war criminals. Plus, they would be safe enough in Russia itself—assuming Putin stays in power and decides he wants to protect them.
If arrested, any of the responsible parties could be tried in Ukraine, one of the nations that has opened a criminal case, or by the ICC, which “has jurisdiction to investigate and prosecute individuals responsible for crimes against humanity, war crimes, and genocide committed on the territory of Ukraine,” Stromseth said. Ukraine reaffirmed the ICC’s jurisdiction there in 2015, so even nationals of states that don’t recognize ICC jurisdiction—such as Russia—can be prosecuted for the kinds of crimes Russia is alleged to have committed in Bucha and likely elsewhere in Ukraine.
Though there is significant global attention on Russia’s alleged war crimes, and even an appetite to go after Putin himself, as Foreign Policy’s Colum Lynch noted in March, that’s not a guarantee that he’ll be prosecuted. As Hale put it, “They can throw the book at Putin, but how do you execute that arrest warrant?” It also runs the risk of politicizing the ICC or at least giving the appearance that the nations calling for Putin’s prosecution are doing so to enable regime change in Russia. Regardless of whether or not that’s actually happening, the appearance of Western politicians such as Biden calling for Putin to be prosecuted for war crimes—without reckoning with how challenging that process would be—puts the ICC in a difficult position.
Despite some notable convictions for war crimes—including former Liberian President Charles Taylor, who was convicted by the Special Court for Sierra Leone, and two former members of the Syrian security services, who were tried not by the ICC but by Germany—Hale estimated that there’s “less than a 1 percent chance of total accountability” in any given atrocity crimes case; the Nuremberg trials of participants in the Holocaust probably came the closest, he said. And the likelihood that some or most perpetrators of atrocity crimes will get away with it incentivizes continued, increased criminal behavior, as Stromseth noted in March.
“Putin’s past aggressive acts and atrocities in Ukraine and elsewhere only emboldened him. And that impunity has to stop,” she said, evoking the atrocities that Russia enacted or enabled in Chechnya and Syria. When perpetrators of atrocity crimes aren’t brought to justice, Chatterji said, “the memory of mass violence against subjugated communities and lack of justice creates turbulent conditions under which further violence against those already brutalized appears inevitable.”
However, it’s worth noting that there’s no statute of limitation for war crimes, and it’s possible that investigators will uncover strong enough evidence to connect high-level Kremlin officials, or Putin himself, to the horrors Ukrainians are suffering right now. It’s also possible that geopolitical conditions could change in such a way as to make those responsible vulnerable to international enforcement mechanisms. But even if all of those conditions align, justice is a long way off, Pechonchyk said: “We understand that this will take years.”
By Ellen Ioanes
Ellen Ioanes is a graduate of Columbia University’s Graduate School of Journalism and Davidson College. She has written for the Guardian, HuffPost India, and the Center for Public Integrity, and she was most recently the military and defense fellow at Business Insider. Twitter: @girlstothefront
Source: Foreign Policy