The failure to prosecute American officials and other powerful nations for war crimes has created a jurisdictional mess.
The United States and its NATO allies are doubling down on their support for Ukrainian President Volodymyr Zelenskyy’s assertion that Russia can and will be defeated “on the battlefield.” Over the past year, there has been an open spigot delivering tens of billions of dollars in weapons and other military hardware. As the war has dragged on, earlier hesitation expressed by leaders of NATO states, mainly in the U.S. and Germany, over transferring more potent weapons systems has been overtaken by a zealous policy of NATO escalation.
It seems clear at this point that the Biden administration’s position is that increasing Ukraine’s military capacity is a win-win scenario: Even if Kyiv does not expel Moscow’s forces and retake of all of its territory — including Crimea — as Zelenskyy has stated is the central objective, the proxy war will nonetheless deliver a series of potent punches to the vital organs that constitute Vladimir Putin’s reign. Russia will continue to sacrifice the lives of its soldiers and deplete its economic and military capacity — and Putin will be weakened internally and internationally. The goal is that one way or another, Putin loses without having to sacrifice U.S. or NATO lives.
But what if none of that happens? What if Putin survives this brutal war with his grip on power intact? What if Gen. Mark Milley, the chair of the Joint Chiefs of Staff, was right when he said last November that a Ukrainian victory “is maybe not achievable through military means”? What if Ukraine is forced to accept a negotiated solution where it formally concedes the loss of its territory? What type of accountability could then be brought to bear for Putin’s decision to invade a neighboring country?
President Joe Biden has already gone on record as saying that Putin is a “war criminal” and has said evidence needs to be gathered for “a war crime trial.” The only conceivable scenario in which Putin ends up standing trial is after a revolution or coup in Russia that deposes him. Speculative fiction could be written about what might happen at such an implausible trial, including a defense that seeks to obviate the charges by putting decades of unprosecuted U.S. war crimes, including the invasion of Iraq, in the crossfire. The fact is that short of a total defeat of Putin in Ukraine that leads to his downfall, such talk is just fantasy.
There has never been a trial of a figure as powerful as Putin. But conceding Biden’s assertion that Putin is a war criminal, in what venue would this trial be held? Under what auspices? Who would be the judges? What would give the court its legitimacy in the eyes of the world community, not just NATO nations?
The logical venue to prosecute such crimes would be at the International Criminal Court. The ICC, which was initiated in 1998 for precisely such situations, has charged or prosecuted heads of state and other senior officials from a range of nations, though it has overwhelmingly focused on African nations and has never indicted a leader of a major world power. While the ICC has launched an investigation into crimes committed during the war in Ukraine, neither Kyiv nor Moscow have ratified the treaty recognizing the jurisdiction of the court. The ICC does not have jurisdiction over the crime of aggression in Ukraine, in large part because the U.S. and its allies pressured the ICC to amend its rules to prohibit prosecuting personnel from nations that do not formally recognize the court. Given that Russia is a permanent member of the United Nations Security Council, it is unlikely a criminal referral to the court would ever pass. Moreover, the U.S., India, and China have also refused to ratify the ICC’s Rome Statute. That such powerful countries refuse to subject themselves to the court has rendered the ICC impotent in the face of their crimes, no matter how blatant.
These factors explain why Ukraine and its allies have been calling for a “special tribunal” to prosecute senior Russian officials for the crime of aggression, even if they have to do some trials in absentia. In January, the EU Parliament overwhelmingly passed a resolution asserting “the urgent need” for European nations “to push for the creation of a special international tribunal to prosecute the crime of aggression against Ukraine perpetrated by the political and military leadership of the Russian Federation and its allies.”
The resolution argued that “the establishment of this special tribunal for the crime of aggression would send a very clear signal to both Russian society and the international community that Putin and the Russian political and military leadership can be convicted for the crime of aggression in Ukraine; underscores that the establishment of this tribunal would also be a clear signal to the political and business elite in Russia and Russian allies that it is no longer feasible for the Russian Federation under Putin’s leadership to return to ‘business as usual’ with the West.”
Such a venue, established at the behest of nation states that are hostile to Russia and its president and whose lawmakers have included a guilty verdict in their demands for trials, would be summarily dismissed by Moscow as a biased court plotting a predetermined outcome. Just replace the word Ukraine with Iraq, Russia with the United States, Russian with American, and Putin with Bush, and ask if the U.S. government would have recognized the legitimacy of such a tribunal established to bring accountability for the 2003 invasion of Iraq.
The brutal war in Ukraine is once again highlighting the paltry state of affairs when it comes to international justice. In the aftermath of World War II, the most powerful nations of the world declared themselves above the law and immune from prosecution. The tone for this was set with the Nuremberg and Tokyo trials. While the public prosecutions of Nazi and Japanese war criminals were essential and justified, they set a standard that only the vanquished would be held accountable. No American ever faced an indictment before a world court for the dropping of two atomic bombs on Japan or the firebombing of Tokyo or the carpet bombing of Dresden. Stalin was never hauled before a tribunal to answer for his voluminous mass atrocities. This is also why no U.S. officials have ever been prosecuted for decades of war crimes across the globe, from Korea to Vietnam to Central America to Iraq and beyond.
The official U.S. position on the ICC and international justice is an extremist one. In 2000, President Bill Clinton signed the Rome Statute committing the U.S. to complying with the ICC, but only after the treaty was ratified by a two-thirds vote in the U.S. Senate. Under the bipartisan American exceptionalism doctrine, this would never happen. In 2002, with a sizable bipartisan majority, Congress passed the American Service-Members’ Protection Act, effectively obliterating any possibility of the U.S. ratifying the treaty.
Signed into law by President George W. Bush in August 2002, the legislation is infamously known in the human rights community as the Hague Invasion Act. That’s because the law authorizes the president of the United States “to use all means necessary and appropriate,” including military force, to liberate a U.S. official, soldier, or contractor “who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The law bluntly states, “The United States will not recognize the jurisdiction of the International Criminal Court over United States nationals.”
The drafters of the legislation argued, “In addition to exposing members of the Armed Forces of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court.” It also lists as “persons authorized to be freed,” through U.S. actions, should they find themselves facing war crimes charges: “military personnel, elected or appointed officials, and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), or Taiwan.”
To put a fine point on this codifying of double standards, the law made clear the U.S. would still support ad hoc tribunals established to prosecute nonallied war criminals. “Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic [sic], Osama bin Laden, other members of Al Queda [sic], leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.”
In 2002, Biden was one of only 19 U.S. senators to vote against the Hague Invasion Act. Democratic luminaries such as Harry Reid, Hillary Clinton, Dianne Feinstein, and Chuck Schumer all voted in favor of the Republican-sponsored amendment. But Biden’s opposition was of a tactical nature. He said that while he agreed with the thrust of the legislation, he could not support its most extreme provisions. “As a constitutional matter, I am unwilling to give the president such a blank check to invade the Netherlands — where this court will be located,” Biden said. “Only the Congress has the power to authorize such use of force, and we should not do so in advance, without knowing all the circumstances.”
In his floor speech describing his opposition, which Biden delivered as the U.S. was beginning its preparations to invade Iraq, he made clear that he did not want the U.S. subjected to the jurisdiction of the ICC “as it is currently constituted.” Among Biden’s objections was a provision that allowed for prosecuting the crime of aggression, which the ICC defines as “the use of armed force by a State against the sovereignty, integrity or independence of another State.” Biden also objected to the ICC having jurisdiction over “nonparties,” nations that have not ratified the treaty.
Two decades later, these issues are at the center of the discussion over what body would have legitimate jurisdiction over war crimes committed in Ukraine, including the crime of aggression through invasion of a sovereign nation. For years, diplomats and U.N. officials have tried to tweak the Rome Statute to satisfy more powerful nations — namely the U.S. and Britain — who do not want their own wars subjected to its jurisdiction. In 2010, its text was amended to include the following caveat: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Russia can formally utilize this to argue it is immune from ICC prosecution.
Karim Khan, the ICC prosecutor leading the investigation in Ukraine, has been quite forceful in asserting that the ICC is the proper authority to prosecute war crimes and has opposed creating a special tribunal for Ukraine. Since 2014, Kyiv has agreed to accept the ICC’s jurisdiction over war crimes committed on its territory even though Ukraine is not an official member of the court. “We should avoid fragmentation and instead prefer consolidation,” Khan said in December. “I think it’s not beyond the wit of states to look at ways of dealing with gaps that are said to exist,” regarding crimes of aggression. The most glaring gap is that the U.S. refuses to subject its own wars to the international laws it wants applied to its adversaries. When asked specifically about indicting Putin, Khan told the Associated Press, “You ask about an individual who’s the head of state of a government. No prosecutor worth his or her salt should put the cart before the horse. No prosecutor worth his or her salt should start with the target. They should start with the evidence and decide what the evidence shows.”
It seems plausible that many European Union nations and the U.S. will forge ahead with an effort to establish a “special,” ad hoc tribunal focused on prosecuting senior Russian officials for the crime of aggression. The White House has, to date, slow-walked offering formal U.S. support, in part because of concerns over the precedent such actions may create. In January, Biden signed into law legislation that would theoretically allow the U.S. to prosecute Russian officials in American courts for war crimes committed in Ukraine, but it would require that the “offender is present in the United States.”
The war crimes being committed in Ukraine, including the ongoing crime of aggression, should be prosecuted by a world body whose credibility is impeccable and jurisdiction clear.
Senior European officials have suggested they would support a “hybrid” model, which utilizes Ukrainian domestic courts to establish jurisdiction. But lingering over all of this, certainly from Russia’s perspective, will be the question of why the U.S. invasion and occupation of Iraq — a nation thousands of miles from the U.S. that posed no conceivable threat to its security — was not subjected to such prosecution through an ad hoc tribunal. That argument may not resonate with the leaders of Ukraine or NATO, but it will among many nations across the globe. When the ICC has, in a few limited cases, attempted to probe possible U.S. and British war crimes in Iraq and Afghanistan, as well as the CIA’s post-9/11 black sites, the efforts were shut down under extreme pressure and threats. Former President Donald Trump went so far as to issue an executive order imposing sanctions on ICC prosecutors.
Through its own hypocrisy and the peddling of extreme double standards on issues of international law, the U.S. has forged the path to this jurisdictional mess, which necessitates the creation of a judicial salmagundi. The war crimes being committed in Ukraine, including the ongoing crime of aggression, should be prosecuted by a world body whose credibility is impeccable and jurisdiction clear. It should preside over not just Russia’s crimes, but also those committed by Ukrainian forces and mercenaries, including those from the Wagner Group. The reality is that the militant refusal of the U.S. to subject itself to the laws it wants applied to others has played a significant role in undermining that aim. In the end, this hypocrisy subverts the cause of delivering justice to those who orchestrated the murderous campaign in Ukraine.