War-crimes probe into the conflict is essential

By officially accusing the Russian military of committing war crimes in Ukraine, President Joe Biden’s administration has seemingly confirmed the obvious. Vladimir Putin’s troops have so far attacked apartment buildings, hospitals, shopping centres and schools during their invasion of Ukraine. They’ve cut countless Ukrainians off from food, heat, electricity and running water. Thousands of civilians have been wounded or killed.
Despite Biden’s off-the-cuff remark that Putin “cannot remain in power,” it remains at best uncertain Putin will ever be ousted, let alone face justice for atrocities committed in Ukraine. Even so, the US was right to put the idea on the table: A vigorous war-crimes investigation into this conflict is now essential. As Russia’s ground offensive has slowed due to fierce Ukrainian resistance, its bombardment of population centers has only grown more horrific. Russian forces have killed some 5,000 people in the city of Mariupol, including 200 children, the mayor’s office said. That includes victims of the airstrike on a theater where civilians were sheltering.
In response to such reports, more than 40 countries have referred Russia to the International Criminal Court, which has opened an investigation. Even if the court amasses proof of war crimes, however, high-ranking Russian officials won’t likely face prosecution any time soon. Because Russia, like the US, never ratified the Rome Statute creating the ICC, the Kremlin doesn’t accept the court’s jurisdiction over its citizens.
Even so, an impartial, internationally sanctioned war-crimes inquiry has value. Collecting evidence that Russia knowingly targeted civilians would refute Putin’s attempts to cast the war as a legitimate military operation. It would cause mid-level officials to think twice about carrying out criminal orders, knowing they could face the threat of arrest and prosecution if they travel outside Russia. Cataloging and publicising such atrocities would also demonstrate the world’s commitment to upholding human rights and defending the rule of law.
More pragmatically, international war-crimes charges can help undermine the political legitimacy of rogue leaders, as was the case with Serbia’s Slobodan Milosevic and Sudan’s Omar al-Bashir. While it could be years before any Russians face charges, history suggests they may not escape accountability forever. After a slow start, the United Nations tribunal created to prosecute atrocities in the former Yugoslavia ultimately convicted and sentenced 90 suspects over 25 years — including the mastermind of the 1995 massacre of 8,000 Bosnians at Srebrenica, who will spend the rest of his life in prison after losing his final appeal last summer.
Although European countries will need to take the lead in this probe, the US should provide logistical assistance to the court’s prosecutors, including sharing intelligence such as satellite imagery and communication intercepts. It can offer financial rewards for third countries to cooperate with the investigation, as it has done in other cases. Congress should also require the Department of Justice to maintain a database of suspected war criminals from the Ukraine conflict and amend existing law to allow for the arrest and prosecution of any such individuals who attempt to enter the country. Nato members should consider granting protection and immunity to Russians willing to testify about atrocities they witnessed or were ordered to commit.
Realistically, such policies won’t impede Russia’s aggression right away. Yet the specter of war-crimes charges could well prove useful as leverage for Ukraine in negotiations over ending the war. For example, the government in Kyiv could agree to accept limits on the scope of the investigation in return for concessions from Moscow. Contemplating a long stay at The Hague, the members of Putin’s inner circle may find such a deal newly appealing. Russia’s aggression in Ukraine has shocked the world’s conscience. Imposing accountability for such appalling acts is the first step towards ensuring they aren’t repeated.

—Bloomberg