Nailing Putin for war crimes won’t be an easy task

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When I returned from Ukraine this spring, Italian national public radio asked for 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 question was deeply meaningful to me.

Robert Bruce Adolf [ Courtesy of Robert Adolph ]

Part of my time in this war-torn country was spent in and around Bucha, where unimaginable crimes were committed by Russian forces. I spoke with several of those who live in the area — the survivors. Several had obviously suffered severe psychological damage. Many had lost loved ones. How to bring the wrongdoers to justice? This question troubles me. This should trouble us all.

Putin’s army has proven incompetent and cruel. The Wagner mercenary group failed to turn the tide in their favor. Clearing the prisons to fight for him will not change the results. Ukrainians win. Putin’s announcement on Russian television on Wednesday of a partial mobilization — a plan — and his intention to hold referendums in the Donbass region are frightening signs of desperation. The truth is now out in Russia. Any form of mobilization belies the “special military operation”. Simply put, more war crimes are soon in the works.

In 2019, Russia withdrew from Article 90 of the Geneva Conventions, which requires cooperation with international fact-finding missions investigating war crimes. Thus, Russian witnesses and records are unlikely to be made available to the International Criminal Court. It would make prosecution extraordinarily difficult, which was, of course, the point. Moreover, given the timing of their withdrawal, it begs the question: When did Putin start planning his invasion?

It was suggested by Anne Applebaum in Atlantic that Russia has become a “terrorist state”. If the US State Department were to designate Russia as a state sponsor of terrorism, universal jurisdiction might be an easier argument to make. But, to paraphrase the French philosopher Voltaire, we must first define our terms.

The United Nations has over 100 different definitions of terrorism. Active battlefields can terrorize even the most hardened soldiers. However, war is not terrorism. Terrorist acts are generally considered to be committed in times of relative peace. The targets chosen are mostly innocent people. The goal is to spread fear. Conversely, warfare is generally understood as soldiers in uniform fighting against each other on battlefields under the control of the nation-state. In the Western legal conception of war, spreading fear is rarely an objective and civilians are not targets.

The aims of war 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 peacetime are prosecuted under civil law. Similar acts committed in times of war are sometimes prosecuted by special tribunals, think of the Nuremberg trials after the Second World War. A special tribunal would bypass the International Criminal Court in The Hague, but which nation or group of nations would be the convening authority? Russia – especially Putin – seems to be using terror as a tactic. The indiscriminate use of Russian artillery, rockets, drones and missiles may have killed as many civilians as military personnel in uniform. Additionally, the mass murders in places like Bucha at the start of the war, and now more recently in Izium, are damning.

The International Criminal Court has sometimes claimed “universal jurisdiction”. Even so, bringing any Russian citizen to The Hague wharf would require the cooperation of the Russian state. In its current configuration, a dictatorship disguised as pseudo-democracy, there is no legal mechanism to bring Putin, his associates and his soldiers to justice. A special tribunal would face the same difficulties. Tragically, apprehending and prosecuting the perpetrators would require an end to the current regime in Moscow. We can safely assume that Putin will not go easy on this good night.

Robert Bruce Adolph was in Ukraine as a consultant for the Organization for Security and Cooperation in Europe. He is a military strategist and a former retired US Army special forces soldier and head of United Nations security. Due to his many years of military and international service, Adolph has had the rare 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 gave an official presentation on the war in Ukraine to the Dutch Atlantic Council in The Hague.

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