There is the war, and then there is the war about the war. Vladimir Putin’s assault on Ukraine is being fought in fields and cities, in the air and at sea. It is also, however, being contested through language. Is it a war or a “special military operation”? Is it an unprovoked invasion or a human rights intervention to prevent the genocide of Russian speakers by Ukrainian Nazis? Putin’s great weakness in this linguistic struggle is the unsubtle absurdity of his claims—if he wanted his lies to be believed, he should have established some baseline of credibility. But the weakness of the West, and especially of the United States, lies in what ought to be the biggest strength of its case against Putin: the idea of war crimes. It is this concept that gives legal and moral shape to instinctive revulsion. For the sake both of basic justice and of mobilizing world opinion, it has to be sustained with absolute moral clarity.
The appalling evidence of extrajudicial executions, torture, and indiscriminate shelling of homes, apartment buildings, hospitals, and shelters that has emerged from the Kyiv suburb of Bucha and from the outskirts of Chernihiv, Kharkiv, and Sumy gives weight and urgency to the accusation that Putin is a war criminal.
Yet the US has been, for far too long, fatally ambivalent about war crimes. Its own history of moral evasiveness threatens to make the accusation that Putin and his forces have committed them systematically in Ukraine seem more like a useful weapon against an enemy than an assertion of universal principle. It also undermines the very institution that might eventually bring Putin and his subordinates to justice: the International Criminal Court (ICC).
There have long been two ways of thinking about the prosecution of war crimes. One is that it is a universal duty. Since human beings have equal rights, violations of those rights must be prosecuted regardless of the nationality or political persuasion of the perpetrators. The other is that the right to identify individuals as war criminals and punish them for their deeds is really just one of the spoils of victory. It is the winner’s prerogative—a political choice rather than a moral imperative.
Even during World War II, and in the midst of a learned discussion about what to do with the Nazi leadership after the war, the American Society of International Law heard from Charles Warren, a former US assistant attorney general and a Pulitzer Prize–winning historian of the Supreme Court, that “the right to punish [war criminals] is not a right conferred upon victorious belligerents by international law, but it flows from the fact of victory.” Warren quoted with approval another eminent American authority, James Wilford Garner, who had written that “it is simply a question of policy and expediency, to be exercised by the victorious belligerent or not.” “In other words,” Warren added, “the question is purely political and military; it should not be treated as a judicial one or as arising from international law.” As the Polish lawyer Manfred Lachs, whose Jewish family had been murdered by the Nazis, wrote in 1945, this idea that the prosecution of war crimes is “a matter of political expediency” would make international law “the servant of politics” and “a flexible instrument in the hands of politicians.”
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