Jhe evidence of the atrocities committed by Russian troops as they retreat from central Ukraine is appalling. Denials and allegations of manufacturing outside of Moscow are worthless. the alleged the massacres at Bucha and elsewhere cannot be attributed to the indiscipline of the war. After a month of targeted destruction of homes, hospitals and schools, they point to a systematic campaign of terror against an entire population. They recall the worst depravities of the Second World War.
The conflict in Ukraine is shifting from an all-encompassing Russian conquest to the strategic exploitation of Donbass separatists to strengthen Russia’s position on the Black Sea. It became an escalation of a secessionist war that began in 2014. From there, NATO and the Western world largely and probably rightly stayed away.
But how should the outside world react to the new revelations? The suffering of peoples in conflict far from Europe tends to pale in comparison to the suffering “on our doorstep”, when it is projected on television every evening. The two decades of Western intervention in Afghanistan have left millions of Afghans facing starvation, largely due to Western sanctions. Of their agony, the news is silent.
This does not make Ukraine’s suffering any less real. This week, the country’s president, Volodymyr Zelenskiy, opened an investigation to collect evidence of Russian war crimes. These may include violations of the Geneva Conventions on the conduct of war, acts of genocide and crimes against humanity. As international lawyer Philippe Sands has pointed out, “the real question that prosecutors will face” regarding these crimes is whether they can “trace the responsibility back to the leaders”. This requires fixing responsibility for front-line behavior on a higher authority. In Ukraine, it would require evidence that Vladimir Putin ordered or knowingly permitted atrocities. His possible defense – he couldn’t be responsible for the fog of war or the horrors of battle – would have to be rebuffed.
The first indictment of a sitting head of state before an international tribunal was Yugoslavian Slobodan Milosevic in 1999. He was charged with charges stemming from seven massacres. His laborious trial lasted six years until in 2006 he died in prison without a conviction. By then, Yugoslavia had moved on and the trial had lost its punitive or deterrent impact. This illustrates Zelenskiy’s difficulty, but should not deter him from continuing. The cruelties of war must be constantly publicized and the West should offer all its assistance.
Another legal avenue proposed by Sands and others is a court for the specific crime of aggression. Here, the argument is that all soldiers’ actions result from decisions of their leaders, including unprovoked aggression against a foreign state. Putin could not extricate himself from this hook. His generals, even his apparently defunct Secretary of Defense, Sergei Shoigu, could claim that they only obeyed his own.
From the Nuremberg Trials to the Charter of the United Nations, international action has sought to prohibit attacks on one sovereign state by another. It concentrates responsibility at the level of authority, whether democratic or authoritarian. It seeks to put international law and morality at the service of peace. Law-law is better than war-war.
Although superficially attractive, such an approach would run into some uncomfortable obstacles. This would likely require a UN Security Council initiative, which Russia and possibly China would veto. Specifically, many UN members barely have their hands clean on aggression. The Western invasions of Yugoslavia in 1999 and Iraq in 2003 were of dubious legality, as were other interventions in the world by NATO or its members, however noble their intentions.
Meanwhile, Boris Johnson and other Western leaders watch Bucha footage and give a now-standard feel-good twitch. Something has to be done and the only thing they can think of is ‘ever tougher penalties’. Although they are the most savage ever imposed on an economy of comparable size, they clearly failed to shake Putin’s resolve. To be sure, unreliable polls indicate little domestic opposition to him, either among the Russian people or the Moscow elite. A sense of confrontation and cultural ostracism saw the two groups cowering in a patriotic trench. Putin’s decisions are governed by battles not sanctions, by tanks not banks. If the West wants to help Ukraine, it must do so by proxy, by sending weapons.
History offers little evidence that decisions made in the heat of war are governed by economics. Historian Nicholas Mulder finds the American withdrawal of financial support from Britain over Suez in 1956 to be one of the few examples of policy impact. Many sanctions “hurt” – usually the poor – but almost none can have any bearing on the conduct of a state in conflict. As for skyrocketing gas, oil and grain prices in Europe, sanctions could make foreigners “feel the pain of Ukraine”. They will not relieve it, any more than currently traumatizing the political economy of Europe for years to come will contribute to a post-war recovery.
We must not ignore the most enduring weapon, the court of world opinion. Bucha’s photos are seen on the streets not only in Europe and the United States, but across the world. Russia’s reputation is badly damaged. There will come a time when the cries of an outraged world will penetrate even the false advertising machine of Moscow and set the record straight. As for Putin, he simply made sure to be an outcast for life. His yacht will never drop anchor in a western port.