When I returned from Ukraine in the spring of 2022, Italian National Public Radio requested an interview. I was then 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 conflict. 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. Many clearly had suffered severe psychological damage. Many more had lost loved ones. Putin’s military continues engaging in war crimes to this date. How can the malfeasants be brought to justice? This question troubled me. It should trouble us all.
Putin’s army has proven to be incompetent and cruel. In the early conflict, Moscow-sponsored Wagner Group mercenaries failed to turn the tide in his favor. Emptying prisons to fight for him failed as well, as did enlisting the aid of North Korean soldiers. Slowly but surely, the Ukrainians are winning, despite appearances to the contrary. Putin’s partial mobilization — a draft — was a sign of fearful desperation. The truth is loose in Russia. Any sort of mobilization made a lie of the “Special Military Operation.”
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 a while back by Anne Applebaum in The Atlantic that Russia had become a “terrorist state.” However, the U.S. State Department is unlikely to designate Russia as a state sponsor of terrorism with Mr. Trump in office. 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.
It is important to remember that terrorist acts committed in time of peace are prosecuted under civil law. Similar acts committed in the 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 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 good night.
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