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War Crimes And War Criminals

Following World War II, the prevailing Allied powers agreed to convene an International Military Tribunal, commonly referred to as the “Nuremburg Trials.” The deliberations leading to this unprecedented undertaking, as well as the trial itself (which lasted nearly one year), were painstakingly comprehensive, and consequently have achieved lasting credibility.

The ongoing public debate as to Russian President Vladimir Putin’s culpability as a “war criminal” because of his invasion of Ukraine has rekindled the debate about what constitutes a “war crime.” Sadly, the level of this current debate has been superficial and not worthy of its importance to the foundations of international law or of serious public policy (though likely making for good politics).

The issue deserves far more serious consideration than an off-hand remark by President Joe Biden last week to a reporter that, “He [Putin] is a war criminal.” The next day, Secretary of State Antony Blinken echoed the president’s statement, stating at a news conference, that he “personally believes” the Russian president has committed war crimes in Ukraine.

Has Putin committed “war crimes?” By ordering the invasion of Ukraine and then appearing to deliberately target civilian population centers, probably so. But if the United States is henceforth going to start labeling foreign leaders to be “war criminals” without amassing evidence and presenting a case beyond news videos, the credibility of such an important endeavor will diminish, and with it, the value of employing the term itself.

In the decades since the Nuremburg Trials of 1945-1946, there have been a number of international judicial proceedings designed to identify, try and punish civilian and military leaders who engage in atrocities against other countries or civilian populations. The International Criminal Court (ICC) was established at the start of this century, specifically to provide a permanent forum for such proceedings.

Although President Bill Clinton endorsed the formation of the ICC, every subsequent president, including Joe Biden, has declared our country’s opposition to the ICC. The primary grounds on which the U.S. has refused to formally join the ICC include the arguable lack of due process it affords defendants, and its fundamental incompatibility with our Constitution as the “supreme law” of the United States.

If the United States is to be consistent and serious — and to be seen as consistent and serious — with regard to international law, including that which defines and punishes individuals who commit “war crimes,” it requires more than an off-hand presidential remark to a reporter.

Either we are serious about this, or we are not. Talk is cheap, and when it comes to something as important as alleging the leader of a major, nuclear power to be a “war criminal” – if that term is to be afforded real meaning going forward — our leaders need to do far more than refer, as Blinken did at his March 17th news conference, to televised images of destruction in Ukrainian cities as the basis for such a serious assertion.

Constructing a case that the leader of a major world power is a war criminal is far more difficult than doing so against any of the less than three dozen individuals, almost all from Africa or Middle Eastern countries charged with relatively specific and defined acts of atrocities, that have been indicted thus far by the ICC. Moreover, insofar as the founding charter for the ICC does not permit trial in absentia, there is an obvious and major impediment to trying Putin in that venue, despite the fact that some European nations have called on the ICC to initiate a case against him (as similarly occurred following Russia’s annexation of Crimea in 2014).

While U.S. criminal law does define and prohibit “war crimes,” its jurisdiction does not reach the leader of a foreign country alleged to have committed such acts in another foreign country.

Despite the awful acts being committed by Russia in Ukraine — acts which in all likelihood could be proven to fit within both U.S. and international law as “war crimes” — cavalierly tossing around the term without understanding its scope, applicability, or practical consequences, as this Administration appears to be doing, serves no meaningful or lasting purpose. In fact, doing so lessens the credibility of the allegations and of those making them.


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