President Biden has called Russian military action in Ukraine war crimes and even declared he held Russian President Vladimir Putin personally responsible. Biden said that in his opinion Putin is a war criminal. He even denounced Russian action as genocide, known, because of the 1946 Nuremberg Trials of Nazi war criminals, as “the crime of crimes.” Another international military tribunal was organized after World War II in the Far East to prosecute Japanese war criminals.
The international law of genocide was codified in 1948 by the United Nations as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.” The United States is a party to the convention.
The international community has ways of dealing with war crimes, despite the problem that there is no real enforcement mechanism. Nations are sovereign and if they violate international norms, they often face sanctions but escape serious consequences.
Yet, there are exceptions.
The evidence is strong that Russian troops have engaged in many atrocities defined as war crimes: deliberately targeting civilian populations, including hospitals and residential areas; rape as a weapon of war; executions of civilians; the forceable transfer of Ukrainian children to Russia; and more. All of these are prohibited under the Geneva Conventions and other international agreements, and the world has witnessed war crime tribunals on at least eight occasions since the Nuremberg Trials.
War crime tribunals occurred in 1993 after the Serb and Bosnian Serb ethno-cleansing (read, killing) of Muslims and in Rwanda in 1994 in the genocide against the Tutsis. To codify and regularize tribunals, the international community agreed to the creation in 2002 of the International Criminal Court. But the George W. Bush administration declined to sign the Rome Treaty, which was the enabling document and thus the United States is not a formal signatory. The fear was that because there were insufficient due process rights incorporated in the treaty, U.S. troops fighting abroad may be unjustly accused of war crimes.
The Obama administration agreed to work with ICC but with restrictions insofar as a memorandum put it from the Office of Legal Counsel of the Department of Justice. Even so, the Trump administration again followed the Bush procedure and withheld U.S. involvement. Biden’s Secretary of State Antony Blinken has agreed that the United States, along with several other nations, will now work with the ICC to help investigate Russian war crimes.
Indications are that there is bipartisan interest in Congress to shift the United States in working closely with its allies and the ICC.
Genocide is another matter. Putin has long argued, but especially after the Russian annexation of Crimea in 2014, that Ukraine has no cultural or national identity independent of Russia. He says it now must forcibly be brought back into Mother Russia. And, to boot, it must be “de-Nazified” when there was no evidence of Nazis in the government led by a Jewish president. To achieve these goals, Putin initiated what he euphemistically called a “special military operation” by massing over 150,000 troops on Ukraine’s border and invaded. He thought it all would be over in a matter of days, fully underestimating Ukrainian resistance and the leadership of its president, Volodymyr Zelensky.
The major question under international law is whether genocide includes more than killing: does it also include ending nationhood? Putin has now focused on the eastern sector of Ukraine, known as the Donbas region, where there is a large population of Russian speakers and those identifying more with Russia than Ukraine. He has probably not given up on his desire to conquer all of Ukraine, which leads to the question of whether limiting the killing to less than the entire population qualifies as genocide. Is it genocide by another name and no longer the conventional one like the Nazi German Final Solution to exterminate all Jews?
The perpetrators have to be captured and brought to justice, as were Nazi, Japanese, Serbian, and the Hutu war criminals. The odds of following the chain of evidence from soldiers on the ground to Putin are slim. Bringing him and his generals to justice slimmer still.
But the near-universal opinion among the western powers, with few exceptions like Hungary, to hold Russia accountable for the atrocities in Ukraine, gives hope that justice can be served. Let us trust that this is not a vague prospect.
Jack Fruchtman lives in Aquinnah. The second edition of his American Constitutional History has just been published.