Vladimir Putin may be the greatest proof of John Steinbeck’s claim that “war is a symptom of man’s failure as a thinking animal.” For most of us, there seems no plausible endgame for Putin in his invasion of Ukraine other than death and destruction for both countries. Putin seems to be thinking in a different century but using this century’s weapons.
For criminals, there is often a calculus of risk that is done in looking at the costs and penalties of a crimes. The same is true for most war criminals and Putin is clearly now in that class of criminals. There is mounting evidence of war crimes, particularly in attacks on civilian areas.
Putting aside the legal avenues for action in the short term, there is no question about the violation of international law in Russia’s invasion. The invasion was done without provocation or necessity. The response was far beyond any claim of just cause or threat. Moreover, Russia appears to be moving dangerously with in shift military tactics that will greatly increase civilian losses.
What was most notable today was the reported use of rockets and other munitions against the second largest city in Ukraine, Kharkiv.
Article 51(2) of Additional Protocol I to the 1949 Geneva Conventions, states:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.
Article 48 of Protocol I further states:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.
The use of artillery and Katyusha rockets on urban centers raise serious questions of war crimes. Notably, just the day before, Putin’s ally Belarusian President Alexander Lukashenko mocked the Ukrainians and described the fighting thus far as a “bed of roses.” He threatened that the Ukrainian people would face a “meat grinder” in the coming days.
Common Article 3 of the 1949 Geneva Conventions prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture” when perpetrated against persons “taking no active part in the hostilities.”
Russia, and Putin in particular, could be accused of such war crimes. The concern is that not just the obvious human suffering that he is causing, but that Putin is digging himself in deeper and deeper in terms of legal, political, and economic costs.
There is great concern that Putin appears unstable and even fatalistic. If he fears prosecution, he may actually become more dangerous. That may increase further with protests in Russia.
Nevertheless, Putin is well beyond any cognizable claim of justified war. The scenes from Kharkiv suggest that he is crossing the redline on tactics. Equally concerning is the image of miles of artillery heading toward major cities as well as the positioning of thermobaric weapons. (Russia reportedly used such air-fuel bombs in Chechnya). Some sources are also reporting the use of cluster bombs. These are blunt tools that would clearly constitute war crimes if used on civilian areas. Russia has previously been accused of such war crimes in places like Syria.
The International Criminal Court is reportedly monitoring the Ukrainian situation. However, the definition of a war of aggression remains mired in debate. More importantly, while the ICC was created under the Rome Statute in 2002, Russia is not a party to that treaty. Nor is Ukraine.
It is possible for the United Nations Security Council to bring in the ICC but that is hardly likely with China and Russia exercising veto authority in the United Nations.
The World Court does claim jurisdiction in some disputes under the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. Since Russia is accused of targeting the Ukrainian people, there could be a claim of genocide but Russia can challenge that characterization given its strategic objectives. As for the general “war of aggression” claim, it is also not as clear under existing rules. Again, the United Nations could ask the World Court for an opinion on such claims.
There is also the European Court of Human Rights. Both Russia and Ukraine are members of the European Court of Human Rights and the Strasbourg-based court can rule on conflicts between its 47 member states. Yet, this is a slow process without real teeth for Putin.
Nevertheless, as shown at Nuremburg, the world can claim the right to form tribunals to judge war crimes committed by rogue nations like Russia. Indeed, Russia was part of those proceedings after World War II.
Vladimir Putin remains a relic of an earlier age, but he is also a relic with one of the most powerful armies in the world. Not much has changed since World War II on meaningful legal avenues for the deterrent of such aggression. However, much has changed economically. The world has become far more interdependent on financial and market levels.
It is difficult to see how Putin thinks that his fragile economy can long survive in isolation, even with the support of countries like China. That is why this is such an important moment for testing international resolve. Indeed, even if sanctions do not force a Russian withdrawal, they could deter China in moving against Taiwan. However, they must be so complete and severe to concentrate the mind of Xi Jinping. That is still not happening with Germany and other countries actively protecting the Russian energy sector and the United States still purchasing Russian energy.
Nevertheless, the heavy sanctions against Russia will be the test of economics as an effective deterrent to military aggression. Obviously, these economic moves are done in concert with legal measures to isolate and expose Russian firms and figures. However, in the short term, the international economic system will be more important in stopping this aggression than our international legal system.