16 MONTEREY COUNTY WEEKLY FEBRUARY 23-MARCH 1, 2023 www.montereycountyweekly.com Prosecuting Putin The double standards of international justice create obstacles for justice in Ukraine. By Reed Brody FORUM As the war in Ukraine enters its second year, crimes by Russian forces continue to shock the world. But will Russian leaders, including President Vladimir Putin, ever be held to account? Ukrainian prosecutors have already opened 60,000 war-crime files. The International Criminal Court, under hard-charging British prosecutor Karim Khan, has opened its largest field operation ever in Kyiv and raised unprecedented contributions from Western governments to support its probe. A dozen other states have opened criminal investigations in their own courts, and even more, including the U.S., have sent forensic experts and financial support to Ukrainian prosecutors. The United Nations has created a commission of inquiry. Everyone, it seems, is getting into the act. While some have complained of a “circus,” this is precisely the kind of overwhelming judicial response that all mass atrocities should elicit. Victims in places like Ethiopia and Yemen can only hope they will now get the same attention, not to mention Palestinians or the victims of the Bush administration’s torture program in Afghanistan. What will come out of all these Ukraine probes? Kyiv is already putting captured Russian soldiers on trial, but Ukraine and the ICC are of course aiming higher. The big debate now is over Ukraine’s insistent call for an international tribunal to judge Russian (and Belarusian) “aggression.” It is a compelling idea. Since the end of World War II, however, no one has been prosecuted for aggression, and indeed until 2018 no international court even had jurisdiction over the crime. An aggression tribunal could decisively rehabilitate the criminal prohibition of illegal war. The rub is double standards. The only reason the ICC cannot look at Russia’s aggression is because the UK, France and the U.S. won a limitation which, in the absence of a Security Council referral (where they all, like Russia, have a veto), permits the ICC to prosecute aggression only by leaders whose states are ICC parties. For Western countries to create a special tribunal to prosecute a crime by Russian and Belarusian leaders for which they are unwilling to submit their own leaders would “consecrate selective justice,” in the words of Luis Moreno Ocampo, the first ICC prosecutor, reinforcing a perception that international justice only kicks in against “enemies or outcasts.” That has undermined the legitimacy of the ICC and the entire justice project in the eyes of much of the world. Ocampo proposes instead an amendment to the Rome Statute so that the ICC could prosecute aggression on the same basis as it addresses other war crimes— an amendment that is cumbersome and will take time, however. Putin should be prosecuted for presumptive war crimes and aggression, and even if he is not arrested today, these crimes have no statute of limitations. The question is whether judgment will also be applied to crimes committed by powerful Western actors. Reed Brody is a veteran war crimes prosecutor. His latest book is To Catch a Dictator: The Pursuit and Trial of Hissène Habré. OPINION Justice only kicks in against “enemies or outcasts.”
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