This past 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 on a train station packed with fleeing families, killing dozens, two words were on the lips of diplomats, world leaders and rights groups: war crimes.
But as investigators comb Ukraine for evidence, which could be used to bring charges, an uncomfortable fact hangs over their work. Members of sitting governments and their militaries, no matter how horrifying the evidence against them, virtually never face international prosecution for their country’s conduct in war.
There have been many successful war crimes trials since the foundations of such proceedings were laid at the end of the second World War. But look closely, and a pattern emerges that is not encouraging to hopes that the perpetrators in this war will be similarly held to account.
In practice, justice for war crimes has been applied by conquerors, as in postwar Germany or US-occupied Iraq; by victors in civil war, as in Rwanda or Ivory Coast; or by a new government overthrowing an old one, as in Serbia or Sierra Leone.
Champions of international law argue that the International Criminal Court and similar bodies apply rulings dispassionately and transparently. Trials typically stretch on for years and sometimes end in acquittals: it is hardly brute victor’s justice.
Still, the fact remains that perpetrators almost never arrive in the dock unless they are delivered there by the victors in a war or power struggle that has deposed them. This means that as long as a government remains in power, any war crimes charges against it, however well proven, are likely be little more than symbolic. If those in power act as if they are immune to the laws of war, it is because, in practice, they often are.
This problem has long bedevilled the world’s efforts to police 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 at these limitations, telling the United Nations Security Council on Tuesday that it might as well “dissolve yourself altogether”. 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 that the time of international law is gone?” Maybe so, or maybe it has not yet arrived.
Slobodan Milosevic, Serbia's wartime leader, faced trial in The Hague only after opposition leaders deposed and extradited him
The limits of international justice stretch back to the Nuremberg tribunals, set up in Germany after the second World War, and which became a basis for the international rules of war. The tribunal was meant to establish that conduct in war could be punished as a crime but would be done so under principles of due process and impartiality. Ever since, global treaties and a body of international law have forbade deliberate attacks on civilians or population centres, among other acts, including torture and genocide.
Still, Nuremberg’s tribunal only considered atrocities by the vanquished Nazis. Conduct by the victorious allies was left to those countries’ own judicial systems, which, unsurprisingly, faulted some individual soldiers but not their governments.
This model has largely held ever since. When Rwanda’s civil war toppled its government, widely accused of genocide, the United Nations set up a tribunal, but the new Rwandan government decided who was handed over. It was mostly the defeated who stood trial.
Slobodan Milosevic, Serbia’s wartime leader, faced trial in The Hague only after opposition leaders deposed and extradited him. Milosevic, off Serbian soil, would be out of the picture. And outsourcing his punishment would keep the opposition’s hands clean.
All from Africa
The International Criminal Court, the pre-eminent body for prosecuting war crimes, has indicted about 40 people. All are from Africa. Many are leaders or rebels who lost a war or power struggle. Many, like Milosevic, were shipped over by those who had deposed them.
While the ICC’s rulings are considered credible, they are sometimes perceived as rubber-stamping the outcome of a civil war or power struggle by helping the victors banish their opponents to a faraway prison.
The reach of such courts and tribunals is often restricted by the countries in which they are called to investigate. The courts had access to Rwanda, Bosnia and Cambodia because those countries’ governments wanted them to. In 2010 the ICC opened an investigation into election violence that had killed more than 1,000 people in Kenya, later naming the politician Uhuru Kenyatta and others as suspected instigators. But it dropped the case after Kenyatta became the country’s president, saying it had no way to proceed.
Kenyatta, before his case was dropped, even travelled to The Hague to sit before the court investigating him, dismissing the ICC as a “toy of declining imperial powers”.
The United States, Russia, China and India all reject the ICC's jurisdiction
Efforts to overcome the hurdles of bringing war crimes charges have struggled. Some proponents of atrocity investigations in Ukraine have argued that senior Russian leaders might be tried in absentia. That is what happened to Sudan’s long-time leader Omar al-Bashir, for whom the ICC issued arrest warrants in 2009 and 2010 for war crimes. This effectively barred al-Bashir from visiting countries that had signalled they would comply with the warrant.
Still, the travel ban – like so much of international law – was ultimately subject to the whims of national governments. Dozens of countries that wished to host al-Bashir continued to do so freely. Those that barred his entry now had a legal justification, although many had previously placed him under sanctions that had the same effect.
The world’s major powers have consistently resisted the ability of international courts to hold them or their allies accountable, even symbolically. The United States, Russia, China and India all reject the ICC’s jurisdiction. In 2002, a few months into the US-led invasion of Afghanistan, Congress passed a law requiring that the United States cut off aid to any country that would not agree to never send an American to 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 gain access to territory that remains occupied by Russia, the court’s investigation has been limited. Prosecutors requested their first arrest warrants only last month, naming three individuals in Russian-held territory. None are expected to face arrest.
US in Afghanistan
In 2020 the ICC launched an inquiry into US conduct in Afghanistan. In response the Trump administration imposed sanctions and travel bans against some ICC officials, although the Biden administration reversed them. Last year the ICC announced 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 beyond reach, international courts can have a role to play. For one, proving crimes in absentia, under the auspices of an independent legal process, can help to establish what happened. After a commercial airliner was shot down over separatist-held eastern Ukraine in 2014, an international investigation accused four people, three with ties to Russian intelligence, of responsibility. Some legal scholars have called for a similar approach in the current war.
Proof of responsibility, or the word of a trusted international court, can also be useful as tools of statecraft. Zelenskiy could use such charges to keep pressure on western governments for military support or to lobby fence-sitters such as India.
Such cases can also prove restorative for victims to see their suffering acknowledged.
The ICC investigation in Georgia collected testimony from 6,000 witnesses, most in communities that felt the world had forgotten them. It also led to the creation of a fund, financed by foreign governments, that provides medical care, counselling and financial support for families displaced by the war.
Still, with a few hundred-thousand euro to spread among thousands of victims, and no power to punish Russian perpetrators, it is hardly the vision of justice conjured by references to Nuremberg, which Zelenskiy has urged as a model. “We have heard about the ICC,” Tina Nebieridze, a 73-year-old survivor of Russia’s invasion of Georgia, told Justice Info, a development site based in Switzerland, last year.
"For 12 years they've been laughing at us, the government as well as the others in Strasbourg or The Hague," Nebieridze said. Relocated to a crumbling apartment building far from her home, now under more than a decade of Russian occupation, she was unimpressed by promises of coming assistance. "I no longer have any hope in justice." – This article originally appeared in The New York Times