Can criminal law bring peace and justice to Ukraine?

The irrationality of war

This war, in addition to being brutal, is profoundly stupid and one wonders how a powerful government like the Russian one, which has secret services, investigative centres, forecasting tools, data analysis capabilities complete with satellites and so on, stumbled upon such a senseless adventure.

History has shown far too many cases of governments engaging in irrational warfare despite being well-equipped in strategic studies. Where no positional advantage can be glimpsed on the international scene, often the reason that leads to unleashing a conflict is sought in national political dynamics. The propensity to lash out against external enemies to better oppress one’s subjects and consolidate internal power has already been repeatedly denounced by thinkers of the past such as Erasmus of Rotterdam and Jean-Jacques Rousseau. Fearing an external threat helps delay arbitrary power and silence opposition. Governments use nationalistic rhetoric in these situations: “They are attacking us!”, “They want to annihilate us!”, “Let’s run in defence of the homeland!”, are the recurring slogans that the attackers use even before the attacked. With this propaganda, rulers often manage to create the rally-round-the-flag effect, which allows critical voices to be silenced and opposition to be repressed.

What are the antidotes to this propaganda? First of all, to build bridges between the civil societies of the countries involved in the conflict and to unmask the idea that there might be divergent interests between governments, but not among the peoples. But also, to ensure that the responsibilities of war fall on the governments that unleash them and not on the peoples who suffer them. To this end, legal instruments can play a crucial role.

Towards a right to protect peoples

In traditional international law, specially developed by jurists and diplomats commissioned by rulers, there is no difference between government and people. The government acts on behalf of the entire state and every action it takes must be supported by the nation. Based on the dogma of sovereignty, international law has prescribed two norms to protect those in charge. The first states that anyone acting on behalf of a state (i.e. the government and its representatives) is free from individual criminal liability. The second is that individuals who act because they carry out orders from their government are also exempt from possible faults. If things go well, the rulers credit themselves as victorious commanders. If they go wrong (for example, because they lose the war), those who exercise government are immune from liability. It is the people who pay the consequences, punished in terms of dead and wounded, sanctions, economic crises, reconstruction costs.

One could say with Adam Smith that if a people is led by a despot who causes damage to other communities, it is its responsibility to rise up and overthrow him, and if it does not, it is then logical that it is forced to pay the consequences jointly:

If the government commits any offence against a neighbouring sovereign or subject, and its own people continue to support and protect it, as it were, in it, they thereby become accessory and liable to punishment along with ‘it’ … A nation must either allow itself to be liable for the damages, or give up the government altogether .

But, if subjugated by a despotic regime, the people may lack adequate information, or simply lack the strength to dethrone the regime. One of the advances made in the sphere of law after the Second World War was to make rulers and their agents accountable for their actions. The Nuremberg Trials represented a milestone because they aimed at ascertaining the individual responsibilities of a few and, in doing so, they allowed the German people to turn the page and integrate into a new international context. But those trials had two major flaws. The first is that it was the victors who judged the vanquished, the second is that the rules were written after the end of the war. For several decades, attempts have been made with difficulty to comply with these problems and only with the establishment of the International Criminal Court (ICC) in 1998 was an impartial institution created with the competence to act against the most heinous crimes, the so-called international crimes (aggression, genocide, war crimes, crimes against humanity).

Entering into operation in 2002, the ICC has so far achieved insufficient results: international crimes have continued to be committed, and the trials it has been able to speed up have been very few and mostly confined to bloodthirsty dictators who had lost the sceptre of power. In short, it acted ex-post against politicians who have now become cumbersome figures in world politics. The ICC has raised many hopes but unfortunately has achieved few results. Too many crimes have gone not only unpunished but even unreported due to lack of political interest and economic resources.

The ambiguities of criminal law in war times
To thwart the invasion of Ukraine, hopes arose that international criminal justice could help stem the arbitrariness. Never before have prosecutors and investigators been so active during (rather than after) a conflict. A few days after the tragic invasion and the consequent massacre of civilians in Bucha and other localities, the ICC managed to send numerous forensic experts to collect evidence about the crimes committed. The ICC did not have sufficient resources to carry out all these investigations, so much so that it was not able to send comparable teams to other parts of the planet where similar crimes are known to occur. For Ukraine it was able to do it, thanks to ad hoc funding and the qualified personnel made available by some states. France, Holland, Lithuania and other countries promptly provided numerous forensic investigators who went to war zones. For the first time in the history of international criminal law, investigations were not carried out on cold cases, but on still hot corpses.

It was undoubtedly a great step that serves to establish the unacceptability of international crimes and the willingness of a broad coalition of states to identify and denounce them. Yet once again the selectivity of the ICC’s action has emerged: it manages to investigate some conflicts but ignores others.

Nor should we forget that the ICC does not enjoy a monopoly on international crimes. During the war in Ukraine, both the parties to the dispute and other states rediscovered the importance of the law and the courts which should protect it, often for propaganda purposes only. It is not surprising that in the last year there have been real paradoxes. We mention five:

1) Denis Pushilin, the head of the Russian-controlled territory in Donetsk, said he plans to set up what he called a Nuremberg Tribunal II to punish crimes by Ukrainian forces (which they label “neo-Nazis”) in the territories that since 2014 they have occupied. That crimes have been committed following the 2014 Russian occupation, and by both sides, has been repeatedly denounced by international organizations such as the OSCE and by non-governmental organizations. That said, neither Russia nor the separatists they support have moved forward, probably because such a tribunal would have signalled that even worse crimes have been committed by them.

2) President Biden has repeatedly stated that he wants to prosecute crimes committed in Ukraine through an international tribunal, without elaborating its nature. Biden does not say that his country has not (yet?) joined the ICC and has even obstructed its jurisdiction in various forms. This confirms the propensity of the United States to bring criminal proceedings against its opponents, but only on condition that they themselves are exempt. If President Biden intends to strengthen international criminal justice, he should first get his country to join the ICC.

3) Ursula von der Leyen and other European leaders have suggested creating a new ad hoc court on the model of those created in 1993 and 1994 for the former Yugoslavia and Rwanda. The suggestion is perplexing: why set up a new court, which would once again pose the problem of selectivity, rather than using the already existing institutions? The two special tribunals of the 1990s were established by the United Nations Security Council. It is clear that this procedure would be promptly blocked by Russia’s veto. Opening another legal procedure would establish less authoritative and more partial magistracies than an existing institution such as the ICC.

4) The Ukrainian courts have already taken action to punish war crimes committed on their territory. Vadim Shysimarin, a very young 21-year-old Russian soldier, was sentenced to life imprisonment by the Court of Kiev for killing an unarmed pensioner. A war crime that was judged, in record time, by a national court without the need to resort to external courts. But the Ukrainian authorities immediately declared their willingness to exchange the soldier for other prisoners.

5) Not even the courts of the self-proclaimed People’s Republic of Donetsk, although of very dubious legality, have remained idle. Two British citizens, Aiden Aslin and Shaun Pinner, aged 28 and 48, volunteers in the defence of Mariupol, were accused of being mercenaries and sentenced to death. They were then freed in record time following a prisoner swap brokered by Saudi Arabia.

This series of paradoxes is enough to understand how slippery the discourse on criminal justice can be in the middle of a war. It risks being used by the parties involved for propaganda purposes and used to turn the enemy into a criminal. None of this helps to identify and prosecute the real international crimes nor to carry out that preventive, repressive and above all necessary function for post-war peace-making. And this requires that cases be tried by an impartial third court, with rules established ex-ante and valid for individuals of all states.

The International Criminal Court for Ukraine

The advantage of the ICC lies precisely in the fact that it should guarantee impartiality and avoid the exploitation of criminal justice for propaganda. Still, it is far from being a world court since only 123 states have joined the ICC, while another 70 have been wary of it. Among them, not only the United States, Russia, China, India and Israel, but also Ukraine. Only belatedly, and on the occasion of the invasions suffered by Russia in 2014 and 2022, Ukraine accepted that the ICC could investigate crimes committed on its territory. This allowed, immediately after the invasion of February 2022, the Prosecutor of the ICC to request authorization to carry out the investigations, immediately approved by a block of 40 states (including all European countries, Canada, Australia and other allies).

A year after the start of the investigation, ICC Prosecutor Karim Kahn has decided to indict and request the arrest of Putin and his Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova for the apparently less disturbing crime, namely the abduction of Ukrainian children, transferred from war zones occupied by the Russian Army to Russia and in some cases even given up for adoption to Russian families. It is perhaps surprising that, with all the war crimes documented and the much more serious crime of aggression being committed, the Prosecutor focused on what appears to be a minor offence. How come?

The problem is that war crimes committed on the battlefield do not necessarily show Kremlin responsibility, unless it is proven that the government has encouraged troops to commit them. And for the most serious crime, that of aggression, the ICC has dull claws: it is in fact prosecutable only for state parties or if the case is referred to the Security Council (where such a request would not only be blocked by Russia’s veto and where other states, starting with China, would in all likelihood abstain). Which demonstrates the paradoxical situation in which the Prosecutor of the ICC does not have the possibility to act for the crime of war but only for war crimes.

As for the kidnapping of Ukrainian children, however, the Prosecutor had an easy time collecting the evidence, since Russian propaganda publicly declared that it had provided for the transfer and adoption of minors from Ukraine, presenting the facts as if they were a commendable humanitarian initiative.

The political implications of the arrest warrant for Putin

Faced with the arrest warrant issued by the ICC, the Kremlin limited itself to saying it did not recognize its jurisdiction. More provocative and picturesque in style, former President Dmitry Medvedev even threatened to hit the ICC building in The Hague with a hypersonic missile. Surprisingly, there have also been cautionary notes from members of global civil society, including from those NGOs which have been very active in promoting the discourse of criminal justice. The President of the Permanent Peoples’ Tribunal, for example, noted that the arrest warrant could delay further peace talks. Requesting the arrest of a head of state, without having the real possibility of arresting him, complicates negotiations. If it is necessary to treat Putin as a political interlocutor, how can he be arrested? The historical precedents speak for themselves: the Nuremberg and Tokyo trials took place after the unconditional surrender of Germany and Japan. More recently, the indictment of Slobodan Milosevic took place when the war was already over and he, while still President of the Yugoslav federation, had become a burden for internal politics. Indicting him was therefore a further internal incentive to sideline him. Sudanese dictator Omar al-Bashir was also indicted by the ICC in 2008, but this did not prevent him from remaining head of state for another 11 years.

If the ICC had the power to arrest Putin, it might as well end the war. But its powers are infinitely more limited. The arrest warrant may perhaps inhibit Putin’s travel to the countries belonging to the ICC, but if he were ever to participate in a peace conference, he would certainly not choose to travel to a country where it could have such consequences. It can, of course, be discussed about the ethics of these peace conferences, where government officials shake hands smiling in front of photographers after they have inflicted major damages to their peoples, but this is how wars end.

The arrest warrant for Putin therefore poses the classic problem: to what extent can international criminal justice be autonomous from political choices? If one accepts the idea that the ICC is an independent judicial body, the implication is that Prosecutor Kahn has done nothing but his job. If, on the other hand, we want to consider it a sort of judicial arm of some Western countries (and in particular of European countries), there may be doubts about the appropriateness of the indictment.

The struggle to affirm legality in the Ukrainian war

Peace is not rendered a service if the instruments of criminal justice are bent by the needs of politics. Their utility is to act as a deterrent against international crimes, also in order to reconstitute a possible dialogue between the areas that have been in conflict. After the end of the Second World War, the discourse on international criminal justice has been asleep for half a century. Liberal countries revived it at the end of the Cold War a quarter of a century ago with the ad hoc tribunals for ex-Yugoslavia and Rwanda and later on with the making of the ICC. The war in Ukraine offers the possibility to strengthen it in many respects. The ICC and more broadly the norms about international crimes are not enough to stop a war, but they that can serve to carry out investigations with greater impartiality than those carried out by the national authorities, as well as to identify those responsible for specific crimes. For the discourse on international criminal justice to continue to play a positive role, a number of initiatives need to be taken.

First of all, it is necessary to widen the membership of the ICC. It is absurd that the United States, the main promoter of the Nuremberg and Tokyo Tribunals, has not yet joined the ICC. And, as mentioned, it is even more absurd that President Biden frequently appears in special courts that would set back the formation of an impartial and independent criminal judiciary.

Secondly, the ICC needs to distinguish, at least for heads of state and members of the government, between indictment and arrest warrant. Proceeding with the indictment is necessary to develop the judicial process, but the arrest warrant risks impeding or making diplomatic negotiations more difficult and it would be wise to postpone them to after the conflicts have ended.

Thirdly, the ICC must not be left alone in identifying the crimes committed and those responsible for them. Even without coercive power of last resort, civil society today has the possibility of gathering information on crimes committed and identifying those responsible through the courts of opinion. Bertrand Russell promoted a major opinion tribunal of the 1960s to denounce US war crimes in Vietnam. Since then, the tradition has been revived by Lelio Basso and the Permanent Peoples’ Tribunal. Other opinion tribunals have been held for other conflicts, such as the one in Istanbul on the 2003 Iraq war. It is now necessary to establish a similar tribunal largely supported by various civil society organizations for Ukraine. The task of this court should also be to understand the reasons that led to the failure of the Minsk agreements and why a diplomatic solution has not been found.

Finally, we don’t know how and when, but sooner or later this war will end. There will be rubble and destruction on the field, but the Ukrainian and Russian peoples, united by centuries of common history, will remain there to deal with the destruction inflicted by insane governments. These peoples have a common history and will also have a future as neighbours. This war too has fomented hatred and sectarianism, which is exactly what those who started it wanted to achieve. Peaceful coexistence needs to be re-established between the two communities. In other areas of the world, the truth and reconciliation commissions pioneered by Nelson Mandela in South Africa have played a fundamental role in identifying the atrocities committed, condemning the main perpetrators but also enabling peace-making with a view to future cohabitation. Ukraine and Russia are in desperate need of it, at least as much as radical regime change in the Kremlin is needed.