(April 12, 2022 / JNS) With each passing day, the body of evidence that war crimes have been committed in Ukraine by Russian forces grows. In areas that were under Russian occupation but which have since been evacuated, tales of harsh measures, including acts of murder, appear to have been committed. Even if one were to discount claims of mass murder being circulated by the Ukrainian government as an exaggeration, it is clear that what has happened in that country during the course of the illegal Russian invasion involves actions that are criminal.
The question, then, is what is the civilized world going to do about it? The answer that seems to be coming from the Biden administration is that the United States should reverse its policy of opposition to the operations of the International Criminal Court in The Hague so as to enable the ICC to take up the task of holding the regime of Russian President Vladimir Putin accountable for its depredations in Ukraine.
Sources inside the Biden administration leaking to the chief outlet of their media echo chamber—The New York Times—indicate that the White House and the U.S. State Department have concluded that the ICC is the agency best positioned to go after Putin, as well as various Russian officials and soldiers who can be held responsible for the casualties and the crimes unleashed by the invasion they plotted and set in motion. President Joe Biden seems to believe that the need to pursue this cause is sufficiently important to reverse an American policy that has rightly held the ICC to be a typical example of an international organization that is fatally tainted by anti-American and anti-Israel bias. In recent years, it has been a matter of political consensus that it cannot be trusted to care out any legal task fairly, let alone to be the focus of a U.S. diplomatic initiative.
In doing so, Biden is succumbing to the anger he clearly feels about Ukraine—a sentiment that is shared by most Americans, including the majority who tell pollsters that they disapprove of the way he has been doing his job. But while the impulse to try to punish Putin and his cronies and followers is entirely understandable and even justified, it is another thing entirely to allow such emotions to determine American policy on the ICC.
The folly of empowering a body that will inevitably use the funds, power and prestige afforded it by a U.S. endorsement of its jurisdiction over Ukraine to harm American interests, engage in arbitrary prosecutions of Americans and pursue the international community’s hateful campaign of delegitimization against Israel ought to be obvious even to a public that shares Biden’s outrage about Russia’s war. It should be equally clear that the administration’s interest in empowering the ICC has as much to do with the Democratic Party’s irresponsible infatuation with multilateralism and world bodies like the United Nations as it does with its indignation about Russian misbehavior.
The notion of a policy shift on the ICC in order to conduct postwar trials of Russians is clearly premature.
The West’s current priority ought to be assisting the Ukrainians to resist the invasion of their country by all reasonable means short of starting a nuclear war between Russia and the NATO alliance. More can certainly be done to improve the ability of the Ukrainian armed forces to prevent a Russian victory, and hopefully, to eventually win back those portions of their territory that remain under Moscow’s control. Emergency medical aid, like that provided by the State of Israel, as well as help for what may be millions of refugees who were forced to flee their homes by the fighting is also necessary.
Still, it is not unreasonable to look beyond the immediate needs of the Ukrainians to defend themselves and to see to the care of those injured by the war. Given the blatant nature of the atrocities in Ukraine, there is an obligation on the part of the civilized world to bring those involved in war crimes to justice.
The trouble with any possible efforts in that direction is that it’s hard to see how accountability for Russia can be achieved short of pushing for the kind of regime change in Moscow that is more likely to lead to an escalation of the conflict that to end it. Simply put, no government of Russia—even one that theoretically would succeed Putin if his authoritarian rule were to be ended by a military defeat in Ukraine—would allow its nationals to be tried in The Hague. Nor is it likely that any Russian regime would agree for them to be tried in Ukraine as part of a peace settlement, even in the event of a Russian defeat.
As a nuclear power, it is inconceivable that Russia would suffer the sort of complete defeat that allowed international tribunals conducted by the victors to impose justice on the criminal regimes of Germany and Japan after World War II. Nor is it remotely likely that it would be in the sort of position that Serbia found itself at the end of the Balkan wars of the 1990s when it was forced to allow its former leaders, as well as Bosnia Serbs, to be tried in The Hague for their war crimes.
Even if we concede that it is difficult to envision a way in which Putin and his clique will ever face trial outside of their own country, that is no excuse to punt on the whole idea of punishing war crimes. International law is, at best, a vague set of concepts that is more a matter of what various nations believe than a consensus or set of widely agreed-upon body of legal rulings. But the Nuremberg trials after the Holocaust and other historical cases have established precedents that lend credence to the notion that the civilized world has a right to try those who launch illegal wars of aggression, as well as to hold those who committed crimes in the course of fighting them to account.
Yet empowering the ICC to be the force to hold such trials would be a colossal mistake.
As it has shown throughout its history, the court is run by the same sort of biased international bureaucrats that make up other agencies that are either part of or adjacent to the United Nations. Its attempt to pursue a war-crimes trial of Israel for defending its borders against Palestinian terrorists committed to the Jewish state’s destruction isn’t merely wrong-headed; it’s akin to a trial of Ukrainians for defending themselves against Russia. It’s a symptom of the hate for the West and its democratic values that characterize an international human-rights community that has no business being tasked with defending those same ideas.
It was for good reason that Congress passed laws prohibiting the funding of the ICC or for the U.S. government to cooperate with it. If given free rein—as Biden and the Democrats seem to want—we’d be far more likely to see Americans put on trial for alleged crimes committed in conflicts in the Middle East than Russians, whose brutal tactics in the Syrian civil war equal those they’ve employed in Ukraine.
That ought to deter Biden and others in Washington from going down this path, let alone contemplating measures overriding past restrictions on cooperation with the ICC. Yet from the start of his administration, Biden has been resolved to strengthen multilateral institutions as an ideological imperative regardless of the damage to American interests. Indeed, in his first months, he lifted the sanctions on ICC officials that were put in place by the Trump administration as a result of the court’s efforts to attack and stigmatize Israel.
Lately, Biden has been joined in this effort to re-empower the ICC by some hawkish Republicans like Sen. Lindsey Graham (R-S.C.). So besotted is Graham and his new allies in the administration that he’s prepared to risk the safety of American personnel and Israel in order to pursue trials of Russians.
The answer to this problem is the same, as is true of others involving the United Nations and other instances where Biden and the Democrats are pursuing diplomacy for its own sake. What the world needs are replacements for the ICC and the United Nations, not to further empower them. New bodies that are controlled by democracies—and not a club of tyrannies and authoritarian states that have no business judging other states or exercising authority over the international community—are required to deal justly with this crisis.
One can share the outrage about Russia without buying into the shortsighted and multilateral impulse to empower the ICC. Doing so weakens the United States and endangers Israel. If Biden heads down this road, it will do little to hurt Russian criminals and much to damage a Western alliance that is already hanging by a thread.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.
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