Serhii Lahovskyi mourns next to the grave of his friend in Bucha, Ukraine, April 6, 2022 (CNS photo/Alkis Konstantinidis, Reuters).

On April 18, President Vladimir Putin honored members of the Russian army’s 64th Motorized Brigade by elevating them to the “esteemed” status of “guards.” His decree recognized the brigade’s “mass heroism and bravery, steadfastness and fortitude…for the protection of the Fatherland and state interests.” Putin did not mention that members of the 64th Brigade committed atrocities in the Kyiv suburb of Bucha, from which they retreated in April. Left behind were the bodies of hundreds of innocent civilians, buried in mass graves or lying in the streets, many of them dismembered, some bearing signs of torture and rape. 

The world has been shocked by the extent and degree of Russia’s brutality. Western leaders, including President Biden, have vigorously condemned the atrocities, and demanded that Russia be held accountable for them. But their words carry little weight in Russia. The latest developments in Ukraine give every indication that Putin and his generals are carrying on with a coordinated strategy—previously implemented in Chechnya and Syria—to brutalize civilians. As the “Battle for Donbas” intensifies in eastern Ukraine, the world will likely see more evidence of this shameless barbarity: residential neighborhoods, hospitals, and train stations bombed; ceasefires disregarded; evacuation corridors blocked. An independent fact-finding report issued by the Organization for Security and Cooperation in Europe found “clear patterns of international humanitarian law violations by the Russian forces in their conduct of hostilities.”

While the immediate imperatives are to keep Russia from destroying Ukraine and to end the war as soon as possible, securing justice for the victims of Russian war crimes will be an urgent task in the years to come. Every Russian involved in launching this unprovoked war of aggression or carrying out atrocities in places like Bucha, Mariupol, and Lviv should be brought to justice. But where? Ukraine and a post-Putin Russia could both claim jurisdiction, but neither can be reasonably expected to hold fair and impartial trials. President Volodymyr Zelensky has called on the United Nations to create a new Nuremberg-style international tribunal, but that seems both unlikely and unnecessary. Unlikely because doing so would require a two-thirds vote by the U.N. General Assembly and somehow overriding a Russian veto in the Security Council, unnecessary because an appropriate venue for trying war crimes already exists: the International Criminal Court (ICC), headquartered in The Hague.

How can the United States demand that Putin be brought to justice in a court it refuses to recognize?

The ICC is not perfect. Since its creation in 1998 it has indicted mainly the former leaders of African countries, including Liberia’s Charles Taylor and Chad’s Hissène Habré. And even many African war criminals, including former Sudanese dictator Omar al-Bashir, have managed to elude it. There is good reason, then, to suppose that most of Russia’s war criminals, including Putin himself, would have to be tried in absentia. Complicating matters still further is the fact that neither Ukraine nor Russia is party to the ICC. Nor is the United States. For more than twenty years, five separate U.S. administrations have opposed the ICC on the grounds that it could end up trying American citizens for war crimes, a task no non-American institution could be entrusted with. Between 1999 and 2002 Congress even passed legislation restricting the U.S. government’s ability to provide assistance to the ICC. The cost of such hypocritical American exceptionalism is now obvious: how can the United States demand that Putin be brought to justice in a court it refuses to recognize?

It’s unlikely that the United States will heed the calls from some members of Congress to join the ICC immediately. But former senator Christopher J. Dodd and John B. Bellinger III have argued in the Washington Post that the United States could—and should—assist with proceedings in The Hague without becoming a party to the ICC or violating the American Service-Members’ Protection Act. Such assistance, they explain, could come in the form of funding, intelligence gathering and sharing, prosecutorial guidance, as well as law-enforcement and diplomatic personnel. U.S. aid to the ICC would help strengthen the legitimacy of the ICC and reverse two decades of erosion of international criminal law. Happily, broad political support for the ICC now exists on both sides of the aisle. Meanwhile, Senators Lindsey Graham (R–S.C.) and Dick Durbin (D–Ill.) are working to fast-track legislation that would bolster U.S. acceptance of the legal concept of universal jurisdiction.

It’s true that without a regime change in Russia, Putin and his enablers will probably never face punishment, at home or abroad. But that should not prevent the ICC from trying them for their crimes. An official conviction, based on an impartial weighing of the evidence, would at least prevent the Putin regime from rehabilitating itself in the international community. If found guilty, he and those who helped him with his war would be treated as pariahs by all who value human rights and international law. An ICC conviction would make it clear that such treatment was not the product of “Russophobia” but of universal principles applied without fear or favor. God willing, Putin will one day also have to answer to the Russian people for his many abuses of power. But even if that day never comes, he must learn that he is not above judgment.

Published in the May 2022 issue: View Contents
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