The international community’s efforts to enforce accountability for Russia’s illegal war in Ukraine are vital to achieve justice for Ukrainians suffering through war crimes and crimes against humanity. But they also present an opportunity to strengthen the international justice system, which has suffered from a perception and reality of impotence over decades. However, to do so, revived commitments to international justice in Ukraine must be complemented by an equal appetite for justice in other such cases, particularly in places where the world has largely come to accept impunity as the norm.
International justice mechanisms, backed by exceptional state support, have played an active role in Ukraine. These efforts include the International Criminal Court issuing arrest warrants against Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova for the war crime of unlawfully deporting and transferring children from occupied areas of Ukraine to the Russian Federation. That means Putin could be arrested in the territories of the 123 ICC member states.
But the question is whether this institutional recognition is only a moral gesture, as important as that is. Is there any legitimate enforcement mechanism that will actually see Putin and his cronies face any justice other than the embarrassment of not defeating a smaller neighbour? Because Russia is a permanent member of the UN Security Council and in a ‘no limits’ partnership with China, holding Putin to account for his illegal actions will be an important test not just for individual states but for international mechanisms. Holding Russian leaders to account for their war on Ukraine could strengthen international justice, particularly its oft-debated ability to deter future atrocities.
Moral and strategic imperatives create an impetus for the kind of international justice effort we have seen in Ukraine. Russia’s invasion launched the first interstate war in Europe for 78 years and has unleashed the kind of devastation that the European Union and NATO were created to prevent. It has shaken the foundations of the international order and has thus warranted responses that are proportionate to the magnitude of the shock and fear it has created among Western states that are the principal architects of that order. This war of aggression launched by one European state against another mirrors the circumstances in which international legal norms and institutions were forged in the wake of World War II.
But the invasion has fed into the international community’s tendency to be spurred to action by ‘crises’, while accepting longstanding atrocities. Ironically, this worked against accountability for Russian crimes in Ukraine prior to the full-scale invasion last year. Ukraine requested an ICC investigation in 2014 following Russia’s actions in Crimea and Donbas, but the court’s independent Office of the Prosecutor only opened its investigation eight years later, after the 2022 invasion had begun. Atrocities committed in other parts of the world have quickly faded out of the collective conscience. It’s noteworthy, for instance, that there appears to be no prospect of concrete action being taken in response to war crimes committed by Russia in Syria.
The strong international support for holding Russia to account over Ukraine should prompt a wider rethink of the approach to international justice. It should not entrench what one author has called an ‘asymmetry of empathy, attention and funding’. International justice needs to be able to bring perpetrators to account across the full breadth of scenarios in which atrocities are committed.
The arrest warrant for Putin was a watershed moment for the ICC. He’s the first European state leader that it has sought to arrest since it was formally established in July 2002. Previously, the court had issued arrest warrants only for African heads of states—and overwhelmingly for Africans generally—fuelling allegations that it harboured an anti-African bias, though judicial bodies that predated the court prosecuted European leaders as far back as the Nuremberg trials of Nazi leaders.
Should a powerful ICC response with state backing successfully hold Russia to account, it has the potential to revitalise the court, which has suffered from a paucity of funding and staffing, and hence delays in concluding cases. Dwindling resources, including money and staff, have been flagged as key challenges to the Office of the Prosecutor’s work. As a result, investigations such as those in Burundi and Cote d’Ivoire have been accorded lower priority. Even matters referred to the court by the UN Security Council, such as the situation in Libya, have languished in the absence of state support.
The ICC’s investigation in Afghanistan has had several inexplicable delays. Initially paused at the Ashraf Ghani government’s request, it was then watered down in the face of US pressure, and only resumed over a year after the Taliban takeover.
Several states have launched independent inquiries into Russian war crimes in Ukraine. The Office of the Prosecutor is, for the first time, taking part in a combined investigative team by joining the European Union’s EuroJust. The US Justice Department has established an ‘accountability team’ to investigate war crimes in Ukraine. In addition, the US passed the Justice for Victims of War Crimes Act, altering its domestic laws to enable war criminals to be prosecuted in the US even if the perpetrators or victims are not Americans. That brings American law into line with the 1949 Geneva Conventions, a change the US has long avoided.
Independent, state-led inquiries and prosecutions for atrocities committed in other parts of the world remain few and far between, despite years of allegations and documentation. A German court’s conviction of two former officials of Syria’s security forces for war crimes last year was the first time Syrian regime officials were held accountable for their crimes. German and Dutch courts have also heard cases on behalf of Afghan victims of atrocities. Recently, a former member of the Australian Defence Force was charged with the war crime of murder for allegedly shooting an Afghan civilian while deployed in Afghanistan. Barring Australia’s investigation, there are no ongoing independent investigations into war crimes committed by international forces in Afghanistan, including into the use of US ‘black sites’ where torture allegedly took place, according to former ICC prosecutor Fatou Bensouda.
There have also been calls to create a special tribunal to try Russia for the crime of aggression. These calls were prompted by restrictions on the ICC’s jurisdiction over this crime, primarily owing to pressure from the US and allies to amend the court’s rules. Creating an ad hoc tribunal to prosecute Russia rather than removing limitations on the court’s jurisdiction—which would also enable it to investigate other acts of aggression—would ‘consecrate selective justice‘, according to former ICC prosecutor Luis Moreno Ocampo.
In some cases, countries oppose international investigations of war crimes in places such as Afghanistan and Iraq to preclude prosecution of their own personnel. This was illustrated in the Donald Trump administration’s imposition of sanctions on ICC personnel following the court’s decision to investigate war crimes by international forces in Afghanistan.
The absence of international troops in Ukraine lessens the risk that international investigations might implicate other countries’ personnel, making it easier to lend support. It’s evident that Western states expect these responses to remain exceptional and not to have spillover effects that strengthen calls for justice elsewhere, particularly in conflicts where their own personnel could be implicated.
Justice is not evenly or equally applied, and it is not driven by the severity of the atrocities or the strength of the victims’ claims. To be a vehicle for all victims of atrocity crimes, international justice efforts need to thrive not just in situations where it’s easy to seek justice but also in difficult situations, including when powerful states are indifferent or even opposed to accountability.
Achieving justice in Ukraine is vital for the effectiveness and longevity of international rules and the institutions that are meant to uphold them. Holding Russia to account and bringing this appetite for justice to bear in conflicts across the world are the dual existential challenges not just for international justice bodies but for the international community at large. Failure to succeed in either will do further damage to the international system, likely resulting in the ICC reverting to inaction and cementing a two-tiered system that further alienates the global south, subverts and weakens the norm of international justice, and exposes the limits of the rules-based international order.