Justice unlikely unless Russia is defeated

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Last week, as Ukrainian forces retook the town of Bucha to find its streets littered with the bodies of bound and shot civilians, and as rockets rained down on a train station crowded with fleeing families, killing dozens, two words were on the lips of diplomats, world leaders and advocacy 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 armies, no matter how horrific the evidence against them, are almost never internationally prosecuted for their country’s wartime conduct.

Many war crimes trials have been successful since the groundwork for such proceedings was laid at the end of the Second World War. But look closely, and a pattern emerges that is not encouraging to hope that the perpetrators of this war will also be held accountable.

In practice, justice for war crimes has been enforced by conquerors, as in post-war Germany or US-occupied Iraq; by the victors of the civil war, 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 say the International Criminal Court and similar bodies enforce decisions impartially and transparently. Trials usually drag on for years and sometimes end in acquittals: this is not brutal victor’s justice.

Yet the fact remains that perpetrators almost never get into the dock unless delivered there by the victors of a war or power struggle that overthrew them. This means that as long as a government remains in power, any accusation of war crimes against it, no matter how well proven, is probably little more than symbolic. If those in power act as if they were immune to the laws of war, it is because, in practice, they often are.

This problem has long hampered the world’s efforts to control war, with atrocities going largely unpunished in Syria, Myanmar and many other conflicts where the accused remain in power.

Volodymyr Zelenskiy, Ukraine’s president, has expressed frustration with those limitations, telling the United Nations Security Council on Tuesday that he might as well “disband completely.” Urging the council to establish a tribunal for possible Russian war crimes, he said of the body’s failure to hold Moscow accountable: “Do you think the time for international law is over?” Maybe so, or maybe it hasn’t happened yet.

Slobodan Milosevic, the Serbian wartime leader, was only tried in The Hague after opposition leaders deposed and extradited him

The limits of international justice go back to the Nuremberg tribunals, created in Germany after the Second World War, which became the basis of the international rules of war. The court was meant to establish that wartime conduct could be punished as a crime, but would be under the principles of due process and impartiality. Since then, global treaties and a body of international law have prohibited deliberate attacks on civilians or population centers, among other acts, including torture and genocide.

Yet the Nuremberg tribunal considered only the atrocities committed by defeated Nazis. The conduct of the victorious allies was left to those countries’ own judicial systems, which, unsurprisingly, blamed some soldiers, but not their governments.

This pattern has largely held since. When Rwanda’s civil war toppled its government, widely accused of genocide, the United Nations set up a tribunal, but Rwanda’s new government decided who was handed over. It is especially the vanquished who are judged.

Slobodan Milosevic, the Serbian wartime leader, was only tried in The Hague after opposition leaders deposed and extradited him. Milosevic, outside Serbian soil, would be offside. And externalizing his punishment would keep the opposition’s hands clean.

All from Africa

The International Criminal Court, the preeminent body for the prosecution of war crimes, has indicted about 40 people. All come from Africa. Many are leaders or rebels who have lost a war or a power struggle. Many, like Milosevic, were sent off by those who dropped them off.

While ICC decisions are seen as credible, they are sometimes seen as confirming the outcome of a civil war or power struggle by helping the victors banish their opponents to a distant prison.

The scope of these courts and tribunals is often limited by the countries in which they are called upon to investigate. The courts had access to Rwanda, Bosnia and Cambodia because the governments of those countries wanted them. In 2010, the ICC opened an investigation into election violence that killed more than 1,000 people in Kenya, later naming politician Uhuru Kenyatta and others as suspected instigators. But he dropped the case after Kenyatta became the country’s president, saying he had no way to proceed.

Kenyatta, before his case was dropped, even traveled to The Hague to sit in front of the court investigating it, dismissing the ICC as a “plaything of the declining imperial powers”.

The United States, Russia, China and India all reject the jurisdiction of the ICC

Efforts to overcome obstacles to the indictment of war crimes have been difficult. Some supporters of atrocities investigations in Ukraine have argued that senior Russian leaders could be tried in absentia. This is what happened to longtime Sudanese leader Omar al-Bashir, against whom the ICC issued arrest warrants in 2009 and 2010 for war crimes. This effectively barred al-Bashir from visiting countries that had signaled they would comply with the mandate.

Yet the travel ban – like so many international laws – was ultimately subject to the whims of national governments. Dozens of countries that wanted to welcome al-Bashir continued to do so freely. Those who barred him entry now had a legal justification, though many had previously placed him under sanctions that had the same effect.

Major world powers have consistently resisted the ability of international tribunals 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, months after the US-led invasion of Afghanistan, Congress passed a law requiring the US to cut aid to any country that would not agree to never send an American at the court. International justice officials have in recent years sought ways to investigate governments still in power.

In 2016, the ICC opened an investigation into possible war crimes committed during Russia’s 2008 invasion of Georgia. Unable to access territory that remains Russian-occupied, the court’s investigation was limited . Prosecutors only applied for their first arrest warrant last month, naming three people in Russian-held territory. None should be arrested.

United States in Afghanistan

In 2020, the ICC launched an investigation into US conduct in Afghanistan. In response, the Trump administration imposed sanctions and travel bans on some ICC officials, though the Biden administration reversed them. Last year, the ICC announced that it would, after a decade of Palestinian lobbying, investigate possible war crimes in the Israeli-occupied Palestinian territories. Israeli officials are expected to bar investigators from entering.

Even when perpetrators are out of reach, international courts may have a role to play. On the one hand, proving crimes in absentia, under the auspices of an independent judicial process, can help establish what happened. After a commercial airliner was shot down over separatist-controlled eastern Ukraine in 2014, an international investigation has blamed four people, including three linked to Russian intelligence services. Some jurists have called for a similar approach in the current war.

The train station after a rocket attack in Kramatorsk, eastern Ukraine, left dozens dead on Friday. Photo: Fadel Senna/AFP via Getty

Proof of accountability, or the word of a trusted international tribunal, can also be useful as tools of statecraft. Zelenskiy could use such accusations to keep pressure on Western governments for military support or to pressure crooks like India.

Such cases can also be restorative for the victims so that their suffering is recognized.

The ICC investigation in Georgia collected testimonies from 6,000 witnesses, most from communities that felt the world had forgotten them. It also led to the creation of a fund, funded by foreign governments, which provides medical care, counseling and financial support to families displaced by war.

Yet, with a few hundred thousand euros to be divided among thousands of victims and no power to punish the Russian perpetrators, it is hardly the vision of justice conjured up by the references to Nuremberg, which Zelenskiy advocated 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.

“For 12 years they have been laughing at us, the government like the others in Strasbourg or The Hague,” Nebieridze said. Relocated to a crumbling building far from her home, now under more than a decade of Russian occupation, she was unimpressed with promises of aid to come. “I no longer have any hope of justice.” – This article originally appeared in The New York Times

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