Putin’s War and the Failure of International Law

At Bucha, Motyzhn, and a dozen other villages on the Kiev periphery, retreating Russian troops have left gruesome corpora delicti of mass war crimes in their wake. Imagery of Ukrainian civilians shot with hands bound behind their backs, and reports of wholesale gang rapes by Russian soldiers, have inflamed international outrage.The entirety of President Putin’s war of aggression constitutes a crime against the rules-based international order, which makes it predictable that Russian troops will also behave in outlaw fashion. Let’s not forget there is ample precedent within living memory for precisely this sort of behavior by Russian armies.In his best-selling “Berlin, the Downfall 1945,” historian Anthony Beevor quotes Soviet war correspondent Natalya Gesse who accompanied the Red Army during its advance into Germany at the end of WWII: “Russian soldiers were raping every German female from eight to eighty. It was an army of rapists.”Mounting evidence of Russian war crimes in Ukraine gives rise to the question of what legal punishment, if any, will be meted out against the perpetrators. But it’s unlikely that redress of any substance will come from the formal institutions of the organized international community.The realist view of global affairs holds that international law is little more than power politics adorned with the tinsel of pseudo-legalism and that nations ratify international conventions out of righteous or roguish intentions.Righteous nations ratify treaties that formalize policies they intend to follow anyway, while rogues sign on as a public relations exercise while intending to spurn their treaty obligations at the first opportunity.Putin’s war of aggression against Ukraine demonstrates that Russia falls into the reprobate nation category. Russian troops have violated the 1907 Hague Convention Respecting the Conduct of War on Land and the 1949 Geneva Conventions, despite Moscow having signed and ratified both treaties.It’s close to certain that no legal repercussions will ensue from Russia’s war crimes in Ukraine because the international legal order lacks an effective enforcement mechanism. As Stalin — quoted by Time magazine — quipped in 1943, “the Pope, how many divisions has he?”In an ideal world, the logical venue for such prosecutions would be the International Criminal Court in The Hague, a body created for the express purpose of prosecuting “war crimes, crimes against humanity, and the crime of aggression.”Except for the fact that, while nominally independent, the ICC is subordinate to the UN Security Council. That’s the arena where bare-knuckle politics come into play. As a permanent member, Russia wields a veto that it would certainly use to stymie legal moves to prosecute its leaders or soldiers.This dynamic explains why, in the words of one experienced lawyer, Stephen Rademaker, the ICC “has spent most of its existence meting out European-style justice to African defendants.” After all, it’s far easier to pursue accused persons in the Third World.The only conceivable scenario in which Mr. Putin might be forced to face prosecution at the Hague would be as a propitiatory offering by Russia’s new rulers after a coup d’êtat at the Kremlin.This is precisely what happened in the case of President Milošević, who in May 1999 was indicted on charges of crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws of war.Mr. Milošević continued to serve as president of Serbia and was arrested only after losing his bid for re-election. It wasn’t until April 2001 that he was extradited to the Hague to face trial before the UN International Criminal Tribunal for the Former Yugoslavia.President Omar al-Bashir of Sudan has yet to see the inside of an ICC prison cell despite an arrest warrant issued in 2009 on charges of crimes against humanity, murder, torture, and rape.None of this should be read to imply that those two accused war criminals weren’t worthy of prosecution for their alleged crimes. Yet the fact remains that the extradition of Mr. Milošević, and the non-extradition of Mr. al-Bashir, were political decisions made by political actors for political reasons.The same principle applies to Vladimir Putin. If the Russian president ever winds up in the dock, he’ll have been sent there by a new regime that’s prepared to sacrifice Russia’s erstwhile leader in hopes of shedding Russia’s status as a pariah state.

Putin’s War and the Failure of International Law

Putin’s War and the Failure of International Law

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