In 2010 my book, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic, was published. Milosevic was tried by a special court, The International Criminal Court for the Former Yugoslavia (ICTY) for war crimes, crimes against humanity, and genocide for his responsibility for actions during the wars in Croatia, Bosnia-Herzegovina, and Kosovo. Though his trial lasted more than four years (with many interruptions due to his health), he died in 2006 before it reached a conclusion. Still, a massive record was made and is available at www.archive.sensecentar.org. Before it ended, the ICTY indicted 161 and convicted 90 individuals.
There have been other special tribunals and in 2002 the permanent International Criminal Court (ICC) was established by treaty. Called the Rome Statute, neither the United States nor Russia is a signatory. Nor is Ukraine, though it accepted the ICC’s jurisdiction over offenses committed in Ukraine beginning in 2013. After Russia invaded and annexed the Crimea in 2014, the ICC chief prosecutor assessed that “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” The ICC has initiated investigations of Russia’s current invasion of Ukraine.
There is little doubt that Russia has committed war crimes by targeting civilians, civilian objects, and medical facilities. From reports, videos, and photographs, it also appears that Russia has committed crimes against humanity by torturing and executing civilians in Bucha and executing prisoners. Both President Zelensky and President Biden have publicly declared that Russian actions amount to genocide against Ukrainians. The ICC defines genocide as follows:
“For the purpose of this Statute, "genocide" means any of the following acts committed with an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- (a) Killing members of the group;
- (b) Causing serious bodily or mental harm to members of the group;
- (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- (d) Imposing measures intended to prevent births within the group;
- (e) Forcibly transferring children of the group to another group.”
Ukrainians constitute a national group. They are not the same as Russians despite what Vladimir Putin believes. The issue is whether Putin’s aggression against Ukraine shows an intent to destroy, in whole or in part, the Ukrainian people. Experts in international criminal law disagree whether genocide has been committed based on current evidence. Intent is the key and it has to come from the top. In Bosnia, both the head of state and the head of the army were convicted of genocide, as well as other top officials. Aside from the legal definition, lay people often claim genocide has occurred when harm is so egregious there seems no other word serious enough to describe it.
Yet other crimes are monstrous, as well: rape, torture, starvation, forced prostitution, enslavement, willful killing, using chemical or biological weapons. These are Crimes Against Humanity. War crimes can also be charged. They include intentional harm to noncombatants (civilians, medical personnel, soldiers taken prisoner, medical facilities, e.g.). A war of aggression is also considered a war crime, though it cannot be charged for Russia’s acts in Ukraine because it requires initiation by the UN Security Council and Russia, as a member, would veto it.
People throughout the world, citizens and leaders, are horrified by what Putin has unleashed in Ukraine. Many demand accountability. The fact that accountability is seen in terms of an international prosecution instead of revenge killings is progress, though the possibility that will happen is not high. The ICC must have jurisdiction over the person, that is, the suspect must be in a state that can and will arrest him. As long as Putin remains in Russia or a friendly state such as China, arrest is highly unlikely. The ICC cannot try a person in absentia. They have to be present before the Court.
What does that mean about impunity? Is it still dominant? No doubt, but there is still hope. In Serbia, Milosevic lost favor with the public. They voted him out of office (Serbia was a soft dictatorship that maintained a patina of democracy) and arrested him for misappropriation of state funds and abuse of power. Zoran Djindjic, an opposition politician, arranged for his transfer to The Hague to stand trial before the International Criminal Tribunal for the former Yugoslavia for war crimes. Milosevic also overplayed his hand by attempting to cleanse Kosovo of its Albanian population. After more than a year of massacres, destroyed villages, nearly a million refugees, and unsuccessful negotiations, NATO had finally had enough. For 78 days, the military alliance pounded Serbia with bombs. Shortly after the ICTY chief prosecutor indicted Milosevic for war crimes, crimes against humanity, and genocide, the Serbian leader capitulated.
The situation in Ukraine is different. Serbia did not have nuclear weapons with which to blackmail the West. Nor did it have military forces to rival Russia’s. While the population rallied behind Milosevic, they were also tired of sending their young men off to one more war. The press was censored, but not as completely as in Russia. There was no question about ICTY jurisdiction.
Given Putin’s much stronger position, is there any chance he will be held accountable for the war crimes for which he is responsible even in some distant future? That is a question without an answer, crystal balls and Ouiji boards being out of favor. What concerns me is that the West will grant him immunity in exchange for taking only the Eastern part of Ukraine or it will force Ukraine to relinquish any hope of joining NATO or other Western alliances. Will Putin then forego other aggressions? Give up his dream of Empire? Or will he consider it a win, leaving the door open for future misadventures? Perhaps, I’ll dust off that old Ouiji board to discover whether it’s truly the twilight of impunity or merely twilight.
 President Bill Clinton signed the Rome Treaty at the 11th hour of his presidency. President George W. Bush unsigned it on taking office.