The world is witnessing a Russian assault so unprovoked, and Ukrainian agony so brutal, that these four weeks have forged a historically rare moment of moral clarity and global unity in affirming the criminality of a war. Nations must convert this clarity and unity into actions. We must sustain support for the Ukrainians who are courageously bearing their unsought role as frontline defenders of the democracy and rule of law on which a peaceful world depends. Second, we must begin now to ensure eventual accountability and justice for the authors of this war. Third, we must buttress our global institutions of that justice.
It’s worth giving thought to why this moment is so rare and our response so critical. Across history, most wars carry at least a bit, and often a lot, of moral ambiguity. Often, questions of intent and responsibility are tangled. Often, the path to bloodshed is muddied by misunderstandings and accidents. Often, the evidence of crimes is fragmentary.
But not this time.
The past month’s horrific Russian assault on Ukraine carries no moral ambiguity. It is the unilateral choice of the Russian government—a choice based purely on a web of lies that it concocted and has force-fed over years to its people through state-controlled media. These include fictions that Ukraine is committing “genocide” against ethnic Russians, and that the country is led by “Nazis” rather than by its moderate, freely elected (and, by the way, Jewish) president. Amid these lies, President Vladimir Putin also has stated plainly his true casus belli: Russia’s loss of power and territory from the 1991 collapse of the Soviet Union and his personal rejection of any Ukrainian state free to choose its future.
The rare, unambiguous clarity of this war imposes upon us an extraordinary imperative to seek accountability and justice. That historic imperative led the U.S. Institute of Peace this week to begin a focused discussion on how to advance that process without delay. The good news is that national governments, international institutions and ordinary people have already mobilized to do so.
Courts and Jurisdictions Will Overlap
Rightly foremost in seeking accountability is Ukraine itself. The country’s ambassador to the United States, Oksana Markarova, told the USIP audience on Tuesday that her government is gathering evidence for the use of courts and prosecutors across Europe. She noted last week’s order by the International Court of Justice that Russia halt its invasion, underscoring the fictitious nature of its excuse—the supposed need to end a “Nazi … genocide” of Russians.
The International Criminal Court, also at The Hague, announced its own investigation after 39 nations asked it to act. Its prosecutor declared “a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” Six countries so far—Estonia, Lithuania, Germany, Poland, Slovakia and Sweden—are pursuing cases against Russia’s actions in their own judiciaries, Markarova said. She noted six other nations have created a forum called Friends of Accountability, among United Nations members to promote “accountability measures in Ukraine.”
Jane Stromseth, a Georgetown University international law professor and former senior U.S. official on efforts to prevent and prosecute war crimes, underscored that “national prosecutions,” especially in Ukraine, “will be essential.” Other venues to advance accountability include the U.N. Human Rights Council, which has launched an inquiry on Ukraine, and the European Court of Human Rights. As well, Stromseth noted, an agreement between Ukraine and the United Nations could create a special “hybrid court … potentially modeled on the Special Court for Sierra Leone.”
Weaving a Web of Accountability
Various international laws and agreements give these different judicial mechanisms jurisdiction over different parts of an immensely complex crime, experts have noted. As a result, Stromseth said, we must use all of these disparate channels to weave a web of “multiple, mutually reinforcing approaches to accountability.” That multi-layered approach “sends a message to those who commit these horrific crimes they can run but they cannot hide,” she said.
The International Criminal Court will be at the center of that effort, Stromseth noted, in part because its prosecutor already has responded energetically, emphasizing “repeatedly that the intentional targeting of civilians and civilian objects, such as hospitals, and indiscriminate attacks are war crimes, prosecutable by the court.” Still, the court will need support from national governments, including funding and expert personnel. The United States “could be especially helpful in providing evidence linking war crimes to specific responsible individuals,” Stromseth said.
Indeed, the U.S. government already has pledged support in gathering evidence for war crimes prosecutions, a point noted in the USIP discussion by Curtis Ried, the senior director for multilateral affairs at the National Security Council. He underscored the Biden administration’s commitment to pursuing accountability for what is “the greatest challenge to the U.N. charter and to our rules-based international system that we have seen in over a generation.”
As in any war, a difficult question will arise over whether to offer Russian officials any measure of protection from prosecution in exchange for a withdrawal or other concessions to halt the war. In this conflict, that will be a question for Ukrainians and their leadership to decide.
Building Better Peace from Horrific War
After 1945, the awful moral clarity of humanity’s deadliest war in history led our parents and grandparents to create and support institutions for a better peace—the United Nations and agreements to govern our world with laws and justice instead of brute force. Over seven-plus decades, that international rules-based order has permitted extraordinary human progress, despite its imperfections. As USIP President Lise Grande observed in this week’s discussion, where wars have been ended without accountability for the actions that triggered them, justice was left undone. Those failings set the stage for related violence and warfare to resume later.
The Kremlin’s unprovoked war on Ukraine and the Russian army’s deliberate assaults on civilians recall too vividly the Second World War, from which our parents and grandparents had to rebuild. We must now help the Ukrainians survive and prevail in a battle they wage partly on our behalf for a world governed by law. Then we must ensure accountability and justice insofar as it is in our power. With that, we can seek to reinforce global institutions for peace, bequeathing to our children the hope for a better world that our forebears gave to us.