As evidence mounts of Russian war crimes, the international community has called for action. Prosecuting Vladimir Putin will be nigh on impossible.
It is 1943. The Axis powers are in a vicious struggle with the Allied Powers. There are murmurings about the prospect of trying the leaders of the defeated states, drawing upon such treaties and conventions as the Kellogg-Briand Pact of 1928. George Orwell, coming across a particular book encouraging that theme, waspishly points out its weaknesses in an October issue of the Tribune. The work in question: the prospect of Benito Mussolini’s trial. Britain’s great sceptic of propaganda is not convinced by the argument, proclaiming “in power politics there are no crimes, because there are no laws.”
Powerfully, he points out the issue that stalks many an argument of placing a leader in the dock for war crimes. For one thing, finding a credible jury would be nigh impossible. This is not to say that Mussolini did not behave brutally. “The only troublesome question is: How can something that was praiseworthy at the time you did it – ten years ago, say – suddenly become reprehensible now?”
Orwell cites various individuals who sang the praises of the Italian dictator. In the late 1920s, Lord Rothermere called him “the antidote to a deadly poison.” Lord Mottistone in 1935 admired and praised the civilisational efforts of Mussolini’s men in gassing the Abyssinians.
Two years later, the war crimes trials did come, largely propelled by US jurisprudence and policymakers. At Nuremberg, US Supreme Court justice and prosecuting counsel Robert H. Jackson stated the case for the victorious Allies before the International Military Tribunal. All, including state leaders, would be equal in the dock as personally responsible for war crimes — “the principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace.”
The invasion of Ukraine by Russia has revitalised talk about head-of-state accountability for war crimes, with special interest in President Vladimir Putin. Former UK Prime Ministers Gordon Brown and Sir John Major have added their names to a petition calling for a Nuremberg-styled model, similar to that used in 1945 by the Allies against Nazi Germany. Writing in the Daily Mail, Brown made his own case for prosecuting Putin — “Aggression is Putin’s original crime: the planning, initiation and pursuit of a policy to declare and prosecute an invasion of Ukraine.” At Nuremberg, Nazi war criminals were held to account. “Eight decades on, we must ensure there will be a day of reckoning for Putin.”
This comes along with remarks by US President Joe Biden that Putin’s conduct would qualify him as a war criminal. US Secretary of State Antony Blinken agreed with the assessment: “intentionally targeting civilians is a war crime.” A resolution unanimously passed by the US Senate has also condemned the Russian leader for “alleged war crimes and crimes against humanity.”
The International Criminal Court (ICC) is already seized of the matter, though its obstacles are considerable. For one, three of the permanent five powers of the United Nations Security Council – Russia, China, and the United States – have not accepted the jurisdiction of the Hague court. On the issue of the crime of aggression – referred to as as the crime against peace in the charter of the International Military Tribunal – the ICC would need a referral from the UN Security Council, something that Russia will most likely veto.
The effort to bring Putin to trial has also brought forth critics of other world leaders and their misdeeds. For instance, some circles deemed the 2003 US-led invasion of Iraq a “supreme crime,” violating of the spirit of Nuremberg. In 2005, criminologists Ronald Kramer, Raymond Michalowski, and Dawn Rothe urged that the “criminality of the US-instigated invasion of Iraq” be addressed. The occupation of Iraq was not only a violation of international law, but the acts also constituted “state crimes” for which responsibility ultimately lay with state officials.
The main officials – all elected – were US President George W. Bush, UK Prime Minister Tony Blair, and Australia’s own Prime Minister John Howard. None ever faced formal legal proceedings, though the Kuala Lumpur War Crimes Tribunal (KLWCT), a mock body established by former Malaysian Prime Minister Mahathir Mohammad, tried Bush and Blair in absentia in 2011. Chaired by retired Malaysian Federal Court Judge Abdul Kadir Sulaiman, the judges of the KLWCT found that both leaders had acted deceitfully, manipulated international law, and committed an unlawful act of aggression in invading Iraq.
The point of submitting a head of state to judicial process for war crimes is pertinently complex. The original suggestion of a tribunal to try leaders for war crimes arose with Germany’s Kaiser Wilhelm II at the conclusion of the First World War. But the proposition troubled President Woodrow Wilson – US presidents might find themselves facing a prosecutor’s brief at some point in the future. The motive was selfish but showed acuity that the boomerang might eventually return.
In the end, the tribunal was a moot point. The Kaiser found refuge in The Netherlands, where he lived out the rest of his days fairly undisturbed but for a failed kidnapping attempt led by US Colonel Luke Lea in 1919. Lea, incensed by failed efforts to get the now abdicated Kaiser to trial, sought abduction where diplomacy had failed.
Power politics continues to supply room to excuse, or at least shield, what would otherwise be seen as criminal conduct. Former US Secretary of State Henry Kissinger is not alone in the view that international tribunals are unaccountable bodies dolling out unjust rulings against rulers pursuing the national interest. This position is not surprising, given accusations that Kissinger’s own conduct of foreign policy, from Latin America to Cambodia, potentially violated international law.
In time, countries such as the United States have been openly hostile to efforts from the ICC to investigate the alleged war crimes of its nationals. President Donald Trump, in true Kissingerian spirit, went so far as to directly sanction members of the ICC for daring to investigate potential US war crimes in Afghanistan. Such actions are not so surprising from a country that in 2002 passed the “Hague Invasion Act” to prevent the ICC prosecuting its citizens.
The international criminal tribunals for former Yugoslavia and Rwanda and the ICC have provided some measure of jurisprudent head-of-state accountability for war crimes. But these have been premised on the cooperation of states willing to yield the accused for trial in a foreign jurisdiction. Such cooperation has extended to identifying evidence, relevant witnesses, and gathering material for the prosecution brief. And much of this could only happen after the conflicts in question.
Short of a change of heart – and regime – in Russia, it is difficult to imagine Putin ever facing a Nuremberg process. Ultimately, the matter may well be left to the Russians and how the Ukraine War is addressed in its history and politics. Ukraine, as is permitted in international law, may wish to exercise its own jurisdiction in making those in the Kremlin account. But the Russian president is unlikely to make that a genuine prospect. For now, at least, it appears Orwell was right – for Putin there are no crimes, because there are no laws.
This article is published under a Creative Commons License and may be republished with attribution.