Should Russian President Vladimir Putin be charged with war crimes for deliberately killing civilians and bombing hospitals in Ukraine? Could he be charged? Will he be?
Those are three very different questions, with possibly three different answers. This fact points up the problem with enforcing the law of armed conflict between nations: International law can’t easily be pried apart from international power.
With very few exceptions, national leaders, senior officials, or even high-ranking officers haven’t been indicted or convicted for war crimes except when they’ve been overthrown or their country has lost a major war. Just as the winners write history, they also sometimes prosecute the losers; rarely, if ever, does the reverse happen.
And so, shortly after World War II, at Nuremberg and Tokyo respectively, the Allies tried 34 high officials of the defeated Nazi regime and 28 high officials of imperial Japan for specific war crimes and crimes against humanity, among other charges. They deserved to be tried and punished. However, as Gen. Curtis LeMay, who led the firebombing raids over Japan, privately told one of his aides, if the Allies had lost the war, he and other American commanders who ordered the bombing of explicitly civilian targets, which is a war crime, would have been put on trial instead.
The point here is not to draw moral equivalents. Among other considerations, Japan and Germany started World War II and, in Germany’s case, did so with genocidal aims. Rather, the point is that politics and power often determine who sits in the judge’s chair and who sits in the docket.
Gary Solis, a retired law professor at West Point, told me in a phone conversation Friday, “Early on in my course, I would remind my students to remember the first law of armed conflict: Don’t lose.”
So where does this leave Putin? I asked Faiza Patel, a former lawyer at the International Criminal Court in the Hague, now co-director of the Liberty and National Security Program at the Brennan Center for Justice, whether Putin could be charged with war crimes. She replied, “Leaving aside the practical problems? Yes.”
The practical problems are several. First, as Solis suggests, it would be very difficult to drag Putin before a tribunal unless he’d lost the war or been ousted from power (a likely consequence of losing this war). It would also help if a Kremlin insider flipped on his erstwhile boss, testifying against him and handing the prosecutor incriminating documents; the prosecutors at Nuremberg and Tokyo had access to tens of thousands of captured documents.
“Intent is key,” Solis said. “Films and photographs of hospitals getting bombed or civilians being killed on humanitarian corridors—that’s not evidence. It’s evidence that war crimes were committed. But it doesn’t pin the charge on anybody, except maybe the field commander of the unit that dropped that bomb. To get the guys on top—and I’m speaking as an international lawyer—you need memos, orders, records of conversations. Did Putin write anything down? Would one of his confidants turn on him? These are the questions.”
Without that depth of evidence, Putin could plausibly be tried for the crime of “aggression”—which holds that starting an aggressive war is itself a crime, quite aside from any specific acts committed while fighting it. Four of the Nuremberg defendants were charged with crimes of aggression (among other crimes), but nobody else has in the 77 years since, in part because it’s so broad. Taken literally, it would mean just about any act of war is a crime.
There are other practical challenges. First, where would Putin be tried? Russia doesn’t recognize the ICC (neither does the United States), which doesn’t try anyone who isn’t present in the courtroom. The U.N. Security Council could create a special tribunal, but Russia has a permanent seat on the council and would likely veto any such measure—unless Putin is ousted in a revolution and Russia’s new leaders want to see him prosecuted.
Lawyers might try to lean on the principle of “universal jurisdiction,” in which any country can try anyone from any other country on charges of war crimes, citing the universal principle of human rights. In recent years, German authorities have arrested, tried, and even sentenced Syrians for torture and other crimes against rebels or dissidents in their home country. (The war criminals happened to be on German soil when they were nabbed.)
Cases of this sort can be brought against those who either have “hands-on” involvement in the alleged crimes or “command responsibility” over the underling who committed them. However, Wolfgang Kaleck, general secretary of the European Center for Constitutional and Human Rights in Berlin, said in a phone call that, under the principles of universal jurisdiction, presidents of a state have immunity. “So maybe we could go after the higher-ups, but not Putin,” Kaleck said.
Then again, the case that inspired universal jurisdiction occurred in 1998, when Augusto Pinochet, the former dictator of Chile, was arrested for “crimes against humanity” while in a hospital in Britain. The warrant to arrest him had been signed by a judge in Spain. Pinochet was held prisoner in Britain for 503 days, and a British judge ruled that he could be extradited to Spain for trial—until British Home Secretary Jack Straw, citing Pinochet’s poor health, let him go home.
Lawyers around the world are now almost certainly drawing up bills of indictment against Putin so that, if he survives the war, a warrant might be handed to him while abroad on vacation or for a medical procedure. It’s possible and it would be worth a lot to make Putin nervous about showing his face in public ever again.
Olivia Swaak-Goldman, former head of the International Relations Task Force in the International Criminal Court prosecutor’s office, told me in an email that, while Russia rejects the ICC’s jurisdiction, Ukraine has accepted it. “It may be difficult for the court to conduct a trial as a practical matter,” she said, but it could still indict Putin, “and this in turn could send a powerful message.” If he were still president, he “could no longer represent Russia in international negotiations,” which could further marginalize Putin domestically.
So, yes, lawyers should draw up the indictments against Putin, Foreign Minister Sergey Lavrov, Defense Minister Sergei Shoigu, and the commanders of the brigades and battalions who are committing these awful deeds in Ukraine. If Russia loses catastrophically, if Putin loses power, if his successors in the leadership riffle through the Kremlin archives and find incriminating memos, then maybe we will someday watch them cowering on some tribunal. But it’s not something anybody should count on. Keep in mind that the only sitting president ever indicted by the ICC was Sudan’s Omar Hassan Ahmad al-Bashir, who was charged in 2009 and 2010 with two counts of war crimes and five counts of crimes against humanity for his acts of genocide in Darfur. He was deposed by popular protests in 2019 after 30 years of iron rule. Authorities promised to turn him over to the ICC in the Hague last August, but they haven’t yet.
The question of whether Putin winds up in a foreign or international court for his crimes shouldn’t distract us from the true stakes of this war, which are considerable enough. Ukraine is fighting for its independence, its right to exist as a sovereign nation, and by extension for the principles of independence and sovereignty. Russia invaded Ukraine in an ill-calculated attempt (a) to restore a chunk of its erstwhile empire and (b) to demonstrate the weakness of the Western democracies in the course of doing so. Putin has failed at (b), and everything should be done—short of triggering World War III—to ensure that he fails at (a) as well. If that happens, Putin and his lackeys will suffer plenty of consequences. A tribunal would be a nice capper, but it’s not the main arena where justice will be meted.