12 April 22
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Washington’s long-standing hostility to the International Criminal Court undermines any future war crimes prosecutions over Ukraine. If for no other reason, the US must join the rest of the world in accepting the court’s jurisdiction.
The world’s been shocked by the news coming out of the Ukrainian city of Bucha, outside of the capital Kiev, where hundreds of corpses, some of them mutilated, were found scattered throughout the streets and buried in a mass grave after Russian forces withdrew last week. Moscow has, unsurprisingly, denied the allegations, claiming instead that the entire thing was simply “staged.”
While we should of course wait for the results of an investigation before we make any sweeping conclusions, there’s copious evidence at this point that Russia’s claim is as ludicrous as it sounds. Satellite imagery shows at least some of the bodies found on Bucha’s streets were there as early as the middle of March, video shows Russian forces killing at least one Ukrainian civilian, and German intelligence officials recently said they intercepted conversations between Russian soldiers discussing the atrocities.
Besides this, reporters and human rights organizations have talked to numerous eyewitnesses attesting to atrocities carried out by Russian troops in the city, from summary executions and casual murder to rape and torture. The Australian Broadcasting Corporation has gathered similar eyewitness testimony in a different town northwest of Kiev, and Amnesty International has likewise learned of several atrocities around the Kiev Oblast.
There is a lot of talk right now about what possible motive Russian forces would’ve had to do this. But atrocities like these are neither surprising nor do they require some grand explanation. War and war crimes unfortunately go hand in hand, even if, in theory, there are laws of war that all sides are meant to abide by.
The terrible reality is that military campaigns, particularly when they become stalled, drawn out, and increasingly costly for the invading force, as this one has turned out to be, produce miserable, angry soldiers who dehumanize the local populations to cope with the senseless horror they’re tasked with carrying out, and end up taking out their frustrations on civilians. We in the West should be well aware of this by now, having seen this exact phenomenon with our own invading troops in wars like Vietnam, Iraq, and Afghanistan.
What would be a shame is if, as with those conflicts, the only ones who face accountability for these crimes are simply low-level soldiers. While every individual is obviously responsible for their own actions, and soldiers who choose to commit such terrible crimes must face consequences for what they’ve done, when it comes to war, the ultimate responsibility lies with a country’s military and political leadership.
They are, after all, the ones directly in charge of policy, and are the ones who chose to put the grunts (in this case, some of them conscripts) in positions where they, predictably, wind up committing war crimes. This is why George W. Bush is rightly called a war criminal, and why Nazi leadership were tried and executed after World War II, even though few of them were actually out on the battlefield, mutilating enemy bodies or summarily executing civilians by their own hands. Hence, US president Joe Biden and other Western leaders are now calling Putin a war criminal, and pundits and experts are calling for him to be put on trial.
There’s only one problem: the “rules-based international order” that’s theoretically meant to make this kind of justice happen doesn’t actually exist. The international system we live in now was shaped in large part by the victors of World War II, principally the United States, and so while we’ve created the semblance of a system that’s governed by rules, laws, and institutions that enforce them, in reality we’re still all living in a relatively anarchic world order where governments that are powerful enough can, to a certain extent, do whatever they want.
The International Criminal Court (ICC) is a prime example. The ICC was expressly created by the 1998 international Rome Statute to serve as an avenue of justice for exactly these types of offenses, since the existing International Court of Justice is for settling legal disputes between countries, and the European Court of Human Rights (which Russia withdrew from last month) is meant to be a last resort for people unable to get justice for human rights violations in their own country. But unfortunately, the way the ICC is structured makes it highly unlikely anything meaningful will happen to hold Putin to account.
For one thing, three of the permanent members of the United Nations Security Council (China, Russia, and the United States, who are also three of the world’s most powerful countries) never actually ratified the Rome Statute (former president Bill Clinton signed it, but it was never ratified by the Senate). After all, if you know some kind of war is in your near-to-medium future, why open yourself to prosecution over it?
Besides denting the court’s legitimacy, it also means there’s little that can be done about Russia. The only way to get a non-signatory country into the Hague is by a Security Council vote, which Russia would simply veto. You can blame that one on the leaders left standing after World War II, who instead of creating an actual democratic governance mechanism in which they’d be outnumbered and would find it much harder to get their way, decided instead to give themselves permanent veto power. To this day, relatively friendless Libya and Sudan are the only two non-signatories that have been taken to the Hague, since they don’t hold this extraordinary privilege.
Go look at the ICC’s list of cases and you might spot a pattern: all of the defendants happen to be from the Global South, overwhelmingly Africa. Even in Libya, destroyed and plunged into murderous anarchy by a NATO war, only the Libyan perpetrators have a warrant out for their arrest. What they don’t tell you about the “rules-based international order” is that those rules only apply to countries without a whole lot of power.
Then there’s that pesky issue of legitimacy. In society, a fundamental part of the rule of law is that it’s supposed to apply to everyone. You might agree in theory that someone who committed a murder should be arrested and prosecuted, but if a rich and powerful person routinely gets away with a whole slew of murders out in the open and nothing happens to them — or worse, they’re the ones leading the prosecution — you would probably start to lose faith in that system or even see it as fundamentally unfair, hypocritical, and politically driven, undermining its legitimacy.
That’s basically what we have now, as US officials declare Putin a war criminal and call for the US government to assist a war crimes investigation into what happened in Bucha and elsewhere in Ukraine. While normally assistance in an investigation like this would be helpful, in this case, any US involvement, or even the perception there’s any, would make the process look indistinguishable from victor’s justice.
Why? Because unfortunately, the United States not only wouldn’t ratify the Rome Statute on the basis that its nationals would be vulnerable to “politicized prosecutions” — making it, like Russia, effectively immune to its jurisdiction — but it’s been implacably hostile to the idea of being accountable to an international criminal court at all.
Under George W. Bush, the US government curtailed support for the ICC, withdrew military assistance to countries that signed the Rome Statute, coerced governments into signing bilateral deals not to extradite Americans to the Hague, and most controversially, passed what some call the “Hague Invasion Act,” allowing Washington to use military force to liberate any US nationals who might be held there, a law that’s still on the books. Things got worse under Donald Trump, who sanctioned the ICC over its potential investigation and prosecution of crimes carried out by Americans and Israelis in Afghanistan and Palestine.
So in the same way that years of Western hypocrisy on the issues of war and territorial sovereignty, some going on right now, undermined a unified global response to Putin’s war, there’s a good chance US involvement in a war crimes investigation against Russia would do serious damage to not just the court’s standing, but to the entire concept of international law, if it looks like simply a tool being selectively used to settle geopolitical scores. Unfortunately, given the way Western countries have been serially let off the hook for a variety of wars of aggression, this might still happen even without US involvement.
In principle, it doesn’t have to be this way. The United States could both assist any war crimes investigation and lend it global legitimacy by finally ratifying the Rome Statute, becoming party to the ICC, and repealing the hostile stance to the body that dates all the way back to the Bush years. This would send a powerful signal that this isn’t just an opportunistic use of human rights as a geopolitical weapon, but that the United States is serious about international law. It would also neutralize Russian claims of hypocrisy, strengthen international law, and finish the nearly three-decade-old work of a Democratic administration, which played a key role in the negotiations that created the court in the first place.
Of course, this is easier said than done. But it’s telling that this isn’t even being so much as called for by anyone with a meaningful platform in US political discourse, outside of some left-wing voices like Representative Ilhan Omar and Democracy Now!’s Amy Goodman and Denis Moynihan. In urging Biden to help with a war crimes investigation in Ukraine, former Democratic senator Chris Dodd and former Bush advisor John B. Bellinger III wrote that “The United States can help the court in appropriate cases while still strongly opposing ICC investigations (including of US personnel) that do not meet the court’s strict threshold requirements.” A commitment to impunity is a bipartisan value.
It’s not hard to see why. Far from risking the prosecution of “peacekeeping” forces, as US officials claimed when justifying their refusal to submit to the court, being party to the ICC would mean US war criminals might face some actual justice. Just in recent weeks, we’ve learned the US combat strategy in Raqqa, Syria in 2017 increased civilian casualties there, that a group of Green Berets got off with a slap on the wrist after torturing an Afghan suspect to death, and that a US-targeted airstrike on an ISIS bomb factory carelessly killed eighty-five Iraqi civilians, wiping out a man’s whole family in one instance, and injured as many as more than five hundred. To put it plainly, the fear of war crimes prosecutions for things like this might force some actual restraint on the conduct of US foreign policy.
So at least for the time being, we may be cursed to live in a world where international law continues to be selectively applied and mostly theoretical. And that’s a world where, unfortunately, countries have to depend on military deterrence in the absence of an actual system of justice, and great powers can feel free to launch illegal wars and commit various outrages, knowing they’re above whatever law exists. We might be able to create a different world. But first, we must at least try to imagine it.
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