Joseph Wright, Penn State
and Abel Escribà-Folch, Universitat Pompeu Fabra
(THE CONVERSATION) — As the war in Ukraine continues, officials in the U.S. and Europe are sounding alarms about alleged war crimes being committed by Russian troops there. U.S. President Joe Biden has called Russian President Vladimir Putin a “war criminal,” as has the U.S. Senate, on the grounds that schools, hospitals and civilian shelters appear to have been deliberately targeted by Russian forces.
If Putin is formally accused of war crimes, there are three kinds of courts that might call him to answer for them. We are scholars of dictators and conduct research on how they are held accountable for their actions. None of the available methods are likely to punish Putin any time soon, and they may even lead to more potential war crimes.
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International Court of Justice
The International Court of Justice was established in 1945 as part of the United Nations system. The court can settle disputes only between countries that voluntarily ask for its rulings. It cannot criminally prosecute individuals, much less people who do not consent to its jurisdiction.
Further, the court has no real enforcement power. National leaders can safely ignore its judgments, though their reputations may suffer and doing so may lead to further isolation.
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Special international tribunals
In the past, world leaders accused of atrocities – like Liberia’s Charles Taylor and Serbia’s Slobodan Milosevic – have stood trial before special courts created by the U.N. to deal with crimes committed during particular conflicts. These courts, however, were created only after the alleged crimes had already been committed.
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International Criminal Court
Created in 2002, the International Criminal Court can prosecute individuals responsible for genocide, crimes against humanity, war crimes and aggression. It was created, in part, to avoid the need for ad hoc specialized tribunals for each successive conflict. The idea was that the existence of a permanent court would deter leaders from committing grave violations of international law.
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Some opportunity for accountability
Through these three systems, the international community has sought to hold world leaders responsible for their atrocities. But it can be incredibly difficult and time-consuming.
In 1999, Milosevic became the first sitting head of state to be charged with war crimes by an international tribunal, the International Criminal Tribunal for the former Yugoslavia. He was indicted for crimes committed during the Kosovo war from 1998 to 1999. But he was arrested only after he was ousted from power in 2000.
Even then, his extradition from Serbia was difficult because he sued to block it, and his successor as Serbia’s president, Vojislav Kostunica, and the Yugoslavian Constitutional Court refused to send him out of the country to stand trial. Kostunica wanted to win over Serbian voters who were sympathetic to Milosevic.
In the end, U.S. pressure led to a trial in 2002. But Milosevic died in 2006 before the court could issue a sentence.
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Not effective deterrents or punishments
None of these three tools is likely to have much, if any, effect on Putin’s choices in Ukraine.
The International Court of Justice has declared Russia’s invasion of Ukraine unjustified and has urged an immediate halt to Russian military operations there. But it has said nothing about Putin because the court looks at the actions of states, not specific people – not even national leaders. And one day after the court’s announcement, the Kremlin rejected it.
The existence of the International Criminal Court was meant to relieve the need for special tribunals. However, Russia – like the U.S. – is not a member of the court and claims the court has no jurisdiction over Russia or its officials.
In addition, Russia is a permanent member of the U.N. Security Council, so it can block that body’s referrals to the International Criminal Court.
The possibility of prosecution did not deter Putin when his security forces allegedly committed crimes in Chechnya in the 1990s and Georgia in 2008, such as indiscriminate and disproportionate bombing of civilian targets.
Ukraine is also not a member of the court. But in 2015 the International Criminal Court and the Ukrainian government agreed that the court could begin an investigation into alleged crimes committed by Russian-backed groups in Crimea and eastern Ukraine since February 2014, when Russia first invaded that region and annexed Crimea.
On March 3, 2022, the court launched another investigation into war crimes by Russian soldiers and their commanders elsewhere in Ukraine. Since then, Russian attacks on civilians in Ukraine have intensified.
It’s not clear whether Putin might eventually be indicted by the International Criminal Court. But if he is, the chief obstacle to prosecuting him will be bringing him before the court for trial. The court depends on member nations to arrest the accused and transfer them to The Hague for trial. If Putin stays in power, that will most likely never happen.
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International justice may backfire
It is also possible that international efforts seeking to hold leaders responsible for human rights crimes could backfire.
Leaders who face the prospect of punishment once a conflict ends have an incentive to prolong the fighting. And a leader who presides over atrocities has a strong incentive to avoid leaving office, even if that means using increasingly brutal methods – and committing more atrocities – to remain in power.
When losing power is costly, leaders may be more likely to fight to the death, as Libyan dictator Moammar Gadhafi did after the ICC issued arrest warrants for him and other close relatives in 2011.
In contrast, when losing power comes with credible domestic immunity from prosecution for ex-rulers, international justice campaigns may help mobilize domestic opposition to dictators. That can boost the chances of a peaceful transition from authoritarian rule – as was the case in some South American countries in the 1980s. However, the flip side of domestic immunity is that ex-rulers are not held accountable.
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Justice for Putin?
An International Criminal Court indictment of Putin, or even an investigation, might backfire because of how he rules Russia. His style of government is called a “personalist dictatorship,” in which power is centralized in the leader and a small core of close associates, rather than in a supporting political party or the military.
Our research shows that personalist rulers are more likely than other leaders to be violently ousted from power. That increases the chances they will be punished after losing power. Strongmen typically undermine the political institutions, such as a cohesive military or strong political party, through which they or their allies could retain influence after stepping down. Unable to protect themselves at home, deposed personalist dictators often seek protection in exile.
However, a potential International Criminal Court prosecution makes it less likely any nation will promise to protect Putin in exile – so that method of ending the conflict may now be off the table – providing Putin with further incentives to tighten his grip on power.
If Putin wants to avoid consequences for his actions, his most likely approach is to prolong the conflict, strive for victory – even a limited one – and ramp up political repression at home.
