Prosecuting justice – gathering evidence, securing charges, holding a fair trial – is difficult, time consuming and expensive. As such, few cases of war crimes lead to punishment. While the ICC can bring charges under its own power for any act of genocide, crime against humanity, or war crime, charges of aggression — the crime most applicable to Mr. Putin and his lieutenants — should be brought by the United States. UN Security Council, where it would get a certain Russian veto. In addition, Russia does not recognize the ICC and would not extradite suspects.
Ukraine is also not a party to the treaty that established the court, but has given it jurisdiction over crimes committed on Ukrainian territory. The United States, for its part, has its own history of hostility towards the ICC, and when he accused Mr Putin of war crimes, Mr Biden failed to clarify which forum should be responsible for prosecution.
Yet none of these obstacles should stand in the way of a quest for justice. Even if the process is difficult and takes months and years, it is important that history leaves a forensic, credible, verified and judicially processed record of the specific crimes committed in Ukraine. Those responsible should be named, their actions specified and, if possible, the guilty should be imprisoned. The mere fact that Russia claims that the atrocities were all fabricated requires a detailed and irrefutable judicial response.
The Biden administration and its allies have done an admirable job of puncturing Kremlin propaganda with accurate intelligence. An authoritative war crimes register would serve the same purpose going forward.
It would be good if the Biden administration found a way to cooperate with the ICC in collecting evidence, even though it is illegal to fund the effort. There are other options: a special tribunal could be established without UN approval, and several countries, including the United States, could claim universal jurisdiction and conduct their own trials. But too many investigations would weaken the public impact of the legal process, and no tribunal has the authority or mandate of the ICC
However it is done, seeking justice against Mr Putin and others responsible for war crimes in Ukraine is a longer term goal. Russia is not withdrawing. It repositions its forces for an attack in the east. And Russia’s participation in sputtering peace talks is starting to look more and more like a ploy. Bucha’s horrors have sparked talks about offering Ukraine more deadly weapons and imposing even more sanctions. This must be the focus of the West’s efforts to help Ukraine.
But it is also imperative to ensure that the horrific evidence of criminal atrocities on display in Bucha and so many other places is collected promptly while it is still there, and that witnesses are questioned while their memories are still raw. The posterity must know what really happened. Justice must be given a chance.