The horrific carnage in Ukraine has led to cries across the world for Vladimir Putin to be charged with war crimes. I share the outrage, and would like to see the Russian president punished. But the threat of a future war crimes trial isn’t likely to prove much of a deterrent.
Let’s start at the top. Although for many people, “war criminal” is a political category, legally the conclusion follows indictment, arrest, trial and conviction — none of which are easily obtained. Nowadays, the trial is typically held in the Hague before the International Criminal Court, but special courts can also be established. (Under US law, war crimes can also sometimes be tried in federal courts. )
Could Putin face formal charges? Easily. Under the Rome Statute, the 1998 treaty that created the ICC, targeting civilians is a crime. Since 2010, launching a war of aggression has also been a crime. We can make the list as long as we like. It’s easy to imagine that an investigation of the invasion opened by the ICC on Feb. 28 will result in Putin’s indictment.
Then the problems begin.
For one thing, it’s tricky to get him arrested. The ICC has not held trials in absentia. As the then-president of the court pointed out in 2007, “without sufficient support in arresting and surrendering persons, there can be no trials.” Recent hints that the court might be reconsidering this principle have been met with derision by international lawyers. So Putin might avoid trial simply by staying put.
However, a court established for a limited purpose can set up the rules however it wants. When the Special Tribunal for Lebanon was established in 2009, for example, many observers were surprised by its reintroduction of trial in absentia. A special Ukraine court could hear the case against the Russian president without his participation. But such a process would make it easier for Putin and his supporters to reject the outcome for violating fundamental norms of fair process.
Even if Putin somehow does wind up facing trial, conviction is often difficult, even when the world expects it to be easy. The ICC acquits most defendants. Small wonder. Conviction of a war crime requires proof of intention. Deaths of noncombatants won’t automatically lead to an inference of intent — not without evidence clearly indicating a “plan or policy” to attack them.
Moreover, even when evidence abounds, at the ICC the wheels of justice grind exceeding slow. Consider the case of Laurent Ggabo, the former president of Ivory Coast, who in 2011 was sent to the Hague to face charges, including murder, stemming from the violence that followed his 2010 electoral defeat. The trial did not begin until 2016, at which point Ggabo had already spent nearly five years in custody. Presentation of evidence took two years more. In January 2019 — three years after the trial began — charges were dismissed. The prosecution appealed. Ggabo was finally released in March of 2021, nearly a decade after his arrest.
It’s no defense of Ggabo, whom most observers believe has lots of blood on his hands, to say that 10 years is a long time. As attractive as we might find the image of Putin languishing in jail for a decade, stripped of wealth and power, awaiting a final verdict, that can’t happen unless it’s possible to arrest him.
If Ukraine wins the war and Putin is toppled from his throne, his successors might be only too happy to turn him over. (Assuming they haven’t already dealt with him.) But if Putin prevails — annexing, say, the eastern third of Ukraine as a new Russian province — then there would be a contest of wills. An indicted Putin could be arrested if he set foot in any signatory nation, but he could choose simply to remain at home, testing the mettle of the West. Sanctions can’t last forever, particularly once the war ends. Putin might reason that the West won’t be willing to go on sacrificing economically if the only justification is enforcing a warrant.
There are political obstacles, too.
Enthusiasm for the ICC has been waning of late, in part because of its large budget, in part because it acquits more often than it convicts, and in part because it’s increasingly seen as a tool of the West. Moreover, the court isn’t exactly flavor-of-the-week in Washington just now. ICC prosecutors are currently looking into crimes allegedly committed by the US (and the Taliban) in Afghanistan. Although President Joe Biden has revoked his predecessor’s sanctions on the ICC over the investigation, his administration continues to insist that no probe of the conduct of US forces is necessary.
If the ICC process proves too cumbersome, alternatives might be available. Ukraine (aided by my Yale Law School colleague Harold Koh) is currently suing in the International Court of Justice, demanding an injunction to halt the invasion. Purely symbolic? Maybe not. Ukraine could then pursue war reparations. As of this writing, the estimated damage from the invasion exceeds $10 billion. An award of, say, triple the final figure, to be paid in a currency of Ukraine’s choice — on top of the astonishingly high cost of Russia’s military losses — might prove a stronger deterrent than a war crimes indictment of Putin.
But none of this is likely to matter unless Russia is first defeated on the field of battle. Tribunals rarely convene to punish winners.
Bloomberg
