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Ukraine War Crimes Trials Appropriate, But Problematic – OpEd

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By David B. Kanin*

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The documented atrocities being committed by Russia’s stumbling, brutal military machine against Ukrainian civilians should be subject to appropriate legal scrutiny and judicial process.   Nevertheless, please be clear-eyed about what this means for the ongoing war.  Putin and his acolytes can and will use the threat of Western legal processes as further motivation to hunker down and intensify their mismanaged and totally unnecessary aggression.  

We know from the long and less than well run war crimes trials pursued after the Balkan wars of the 1990s that the performances of international jurists produce bits of justice that more often than not reinforce inter-communal hatreds.  The notion that war crimes trials prosecute individual defendants and not whole communities has been proven false.  Compatriots of accused perpetrators often support them (or even lionize them) while victims’ families and co-nationals cry for the defendants’ blood.   The trials now underway in Kyiv against Russian defendants will produce images Russian media can exploit to deepen visceral public anger at the West and buttress national support for the “special operation” against the phantom Nazis who supposedly run Ukraine.  

Repeated calls for “Nuremberg Trials” to prosecute Russian war criminals are displays of bad history [1]. What went on at Nuremberg marked an exception not a rule.  German notables in zones controlled by Western powers acknowledged a priori German responsibility for crimes soon to be grouped under the term “genocide.”  There was no stab-in-the-back nonsense as in 1918 and little effort to avoid what came close to an admission of collective responsibility.    

This may have led to a sense of closure in the West but did not extend more broadly. East German Communists burnished their anti-fascist credentials and denied any responsibility for the behavior of pro-Nazi perpetrators living and working in the West (perhaps to include West German Chancellor Konrad Adenauer when he was mayor of pre-War Cologne).  War crimes trials in Japan led to the burial of executed war criminals in the Yasukuni shrine, where Japanese notables and others still venerate them.  Conflicts since the 1940s have routinely led to calls for use of an organized judicial hammer against alleged perpetrators on all sides.  Efforts by human rights activists have led to some useful truth-and-reconciliation discussions but have produced only limited actual intercommunal reconciliation.  Post-conflict dialogue in Rwanda after the 1990s is perhaps the most celebrated of these processes but even there recent events have called the durability of this approach into question.

The current call for war crimes prosecution of everyone from Putin and his generals down to soldiers caught murdering civilians marks a significant difference between this war and the fighting in the Donbas in 2014.  Then, Moscow prosecuted a limited offensive (accompanied by limited evidence of atrocities) on the back of its successful seizure of Crimea.  Putin skillfully manipulated EU negotiators to produce agreements at Minsk highly favorable to Russian interests.  He built on this success (and the earlier attack against Georgia) to prepare for the next stage in what could very well have been a patient and successful re-absorption of all of Ukraine into Moscow’s orbit.  After Minsk the rump Ukraine managed to stay out of Russia’s grasp but was beset by internal political divisions, economic problems, and uncontrolled corruption generated by an informal ruling class of financial oligarchs.   Ukraine appeared ripe for further Russian salami tactics – but then Moscow lurched away from success.

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Now, it will be extremely difficult to end the fighting and install a new temporary truce.  Putin’s motivations are less important than the fact that his gamble has misfired badly.  Russia’s defeat before Kyiv and the hurried, haphazard retreat of its forces from the country’s north and west revealed military weaknesses approaching the levels of Russian military problems in 1854-6, 1877-8, and 1939-40.  The scramble to re-deploy mauled battalions also left in its wake the mass graves and other forensic evidence that could fuel multiple war crimes prosecutions for decades to come.

Still, the current situation clearly demonstrates that Russia can win at least a limited victory.  Moscow appears ready to complete its conquest of the Donbas and then will shift its attention to Odesa, Kharkhiv, and/or Kyiv itself.  Even if Ukrainian skill and tenacity (and the frustratingly slow appearance of Western arms) beat the Russians back, Putin has the option of freezing the war in place as he did in in 2014, wearing Ukraine down with small-scale fighting, preparing for the next war, and working on fissures in the West to break up or circumvent the international sanctions regime.

It should be obvious that the threatened exercise in retributive justice will have relevance only if Russia loses the war on the battlefield.  All those calling for prosecution and revenge seem to assume that Western-driven international legal machinery will be able to operate in Russia and Ukraine and at various courts in The Hague and elsewhere however the fighting works out.

Make no mistake.  If Russia prevails, freezes the military situation, or is able to maneuver the West into some new Minsk-like diplomatic mistake there will be no meaningful war crimes trials (although the human rights industry can choose to put on empty judicial performances).  If successful on the battlefield or via diplomatic efforts, Moscow will work to ensure its soldiers and leaders will be immune from international prosecution.  In doing so the Russians could point to US efforts to do exactly the same thing regarding the behavior of American troops in Afghanistan and Iraq.

News reports also raise the possibility Moscow might anticipate war crimes indictments and trials in absentia by putting on show trials of their own against Ukrainian prisoners of war.[2]

Meanwhile, recent wrinkles suggest Putin may have openings he can exploit in a  still fractionable West.  French President Macron said out loud that it will take decades for Ukraine to join the EU and has continued a dialogue with Putin that serves only to strengthen Moscow’s confidence that Western unity will eventually crumble.  At the same time, Finnish and Swedish applications for NATO membership face challenges from Turkey, perhaps Hungary, and even Croatia.   Turkish President Erdogan, who has tenaciously pursued adherents of Fetullah Gulen long after any conceivable threat to Erdogan from Gulen had disappeared means business when he insists Finland and Sweden hamstring Kurdish exile organizations and extradite Kurdish dissidents active in those countries or else face his rejection of their NATO candidacies.  

An agreement with Turkey by June 30 NATO meetings would mark a signal Alliance triumph and likely would overawe any objections from Budapest (or Croatian President Milanovic).  However, if this problem festers beyond that time the West would need to consider an ad hoc plan B for Baltic security needs. 

For Moscow, the Erdogan wrinkle is a potentially significant lifeline and Putin almost certainly will offer him (and Viktor Orban) considerable incentives to deny further NATO enlargement.  At the same time, Turkey’s threat of another offensive into northern Syria underscores the limits of Ankara’s willingness to align with Moscow’s interests.

Even the US itself might very well wobble in its support for Kyiv. The opposition of perhaps a dozen Republican US senators to the latest tranches of American aid to Ukraine highlights splits inside the Republican party on US involvement in Ukraine likely to become more significant if the Republicans win control of the US Congress a few months from now.

Meanwhile, liberal columnists in the US are beginning to cave into Putin’s threat of using nuclear weapons rather than accept defeat.  These public intellectuals rightly cite US mismanagement of  NATO enlargement in the 1990s but twist this history to shift blame for Putin’s unprovoked invasion of Ukraine on Western policies.  They demand Washington shift its focus from defeating Russia in the field to getting Putin to the negotiating table. They do not make clear what, exactly, would be negotiated.

Under the current military situation Moscow would not surrender territory it holds inside Ukraine for the sake of talks and would claim that the fact the West had become the demandeur of the talks proves its “special operation” has been a success. Another example of Washington and the EU forcing its friends to accept a bad deal might well follow, continuing the pattern established at Dayton and Minsk.

And, again, a negotiation under conditions Moscow would agree to would end any realistic chance of meaningful war crimes trials.

Only winners can engineer and enforce post-conflict exercises in justice and retribution.  So, if what before the war was an anomic Western security order intends to call Russians to account for the murders, rapes, and general mayhem Moscow has unleashed on Ukraine the US and EU must maintain disciplined, focused support for Ukraine’s war effort.  Only under that condition can the West help the Ukrainians bring what so far has been a heroic effort to a successful conclusion.

In any case, President Zelensky and his advisors also face a daunting task. Not only must they pursue an exhausting military confrontation with a relentless, if plodding, enemy but they also must maintain what so far has been a remarkable sense of internal unity and purpose.  Ukrainian resolve and competence so far has frustrated Russian efforts to find compradors and Quislings willing to help Putin get out of the hole he has dug himself.

However, Ukraine’s daunting reconstruction problems will bring with them a danger of domestic disputes over resource management and distribution priorities, rewiring efforts by oligarchs and patronage networks, and competing regional and local interests.  Meanwhile, the Ukrainian leadership will struggle to keep the West united in its resolve to provide them with the help they need.

The many moving parts involved in all this will work to Russia’s advantage. Putin will swallow whatever of Ukraine he can chew, consolidate these gains, and – perhaps – return to his post-2014 policy of pursuing favorable (to Russia) agreements brokered by self-important Europeans while he prepares his next attempt to capture the rest of a country he enjoys torturing.

*David B. Kanin is an adjunct professor of international relations at Johns Hopkins University and a former senior intelligence analyst for the Central Intelligence Agency (CIA).

Footnotes:

  1. For example, “Zelensky Calls for a Nuremberg-Style Tribunal to Investigate and Prosecute Russian War Criminals,”  CNBC, April 5, 2022.
  2. “Russia Uses Surrender in Mariupol to Portray Ukrainians as Terrorists,” New York Times, May 18, 2022.

TransConflict

TransConflict was established in response to the challenges facing intra- and inter-ethnic relations in the Western Balkans. It is TransConflict’s assertion that the successful transformation of conflict requires a multi-dimensional approach that engages with and aims at transforming the very interests, relationships, discourses and structures that underpin and fuel outbreaks of low- and high-intensity violence.

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