When I returned from Ukraine this spring, Italian National Public Radio requested an interview. (I was living temporarily in Rome.) The interviewer asked if it would be possible — and how — to call Vladimir Putin and Russia to account for war crimes after the war? This query was deeply meaningful to me.
Part of my time in the war-torn country was spent in and around Bucha, where unimaginable crimes were committed by Russian forces. I spoke with several of those living in the area — the survivors. Several clearly had suffered severe psychological damage. Many had lost loved ones. How can the malfeasants be brought to justice? This question troubles me. It should trouble us all.
Putin’s army has proven to be incompetent and cruel. The Wagner Group of mercenaries failed to turn the tide in his favor. Emptying prisons to fight for him will not alter outcomes. The Ukrainians are winning. Putin’s announcement on Russian television Wednesday of a partial mobilization — a draft — and his intention to conduct referendums within the Donbas Region are signs of fearful desperation. The truth is now loose in Russia. Any sort of mobilization makes a lie of the “Special Military Operation.” Simply put, more war crimes are soon in the making.
In 2019 Russia withdrew from Article 90 of the Geneva Conventions, which obliges cooperation with international fact-finding missions investigating war crimes. So, Russian witnesses and records will likely not be made available to the International Criminal Court. That would make prosecution extraordinarily difficult, which was, of course, the point. Also, given the timing of their withdrawal, it raises the question: When did Putin begin the planning for his invasion?
It was suggested by Anne Applebaum in The Atlantic that Russia has become a “terrorist state.” If the U.S. State Department were to designate Russia as a state sponsor of terrorism, universal jurisdiction might be an easier case to make. But, to paraphrase the French philosopher Voltaire, it is first necessary to define our terms.
The United Nations has more than 100 different definitions of terrorism. Active battlefields can terrorize even the most hardened soldiers. However, war is not terrorism. Terrorist acts are generally understood to be conducted in time of relative peace. The targets selected are predominantly innocents. The objective is to spread fear. Conversely, war is generally understood as uniformed soldiers fighting one another on battlefields under nation-state control. In the Western legal conception of war, the spread of fear is seldom an objective and civilians are not targets.
Warfighting objectives are generally defined by the defeat of an enemy’s armed forces, the acquisition of land or treasure, and/or population control through a political process. There are of course multiple permutations, for example, civil wars and insurgencies.
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It is important to remember that terrorist acts committed in time of peace are prosecuted under civil law. Similar acts committed in time of war are sometimes prosecuted by special tribunals, think of the post-World War II Nuremberg Trials. A special tribunal would bypass the International Criminal Court in the Hague, but what nation or group of nations would constitute the convening authority? Russia — specifically Putin — does seem to be using terror as a tactic. The indiscriminate use of Russian artillery, rockets, drones and missiles may have killed as many civilians as uniformed military. Moreover, mass murders in places like Bucha in the early days of the war, and now more recently Izium, are damning.
The International Criminal Court has on occasion claimed, “universal jurisdiction.” Even so, to bring any Russian citizen to the dock in The Hague, would require the cooperation of the Russian state. As currently configured, a dictatorship masquerading as a pseudo-democracy, there exists no legal mechanism to bring Putin, his associates, and soldiers to justice. A special tribunal would face the same difficulties. Tragically, to apprehend and prosecute the perpetrators would require an end to the current regime in Moscow. We can safely assume that Putin will not go quietly into that goodnight.
Robert Bruce Adolph was in Ukraine serving as a consultant for the Organization for Security and Cooperation in Europe. He is a military strategist and retired senior US Army Special Forces soldier and United Nations security chief. Because of his many years of military and international service, Adolph has had the uncommon opportunity to live and work in 16 different countries in Africa, the Middle East, Europe, and Asia.Adolph is also an international speaker and author of “Surviving the United Nations.” He recently made a formal presentation regarding the war in Ukraine to the Netherlands Atlantic Council in The Hague.