As the evidence of war crimes committed by the Russians in Ukraine mounts, and President Joe Biden has already labeled Russian President Vladimir Putin a “war criminal,” the United States should lay the groundwork for a war-crimes trial patterned after the Nuremberg trials following World War II. A tribunal should be formed with the most esteemed jurists from the United States, Britain, France, and perhaps one or more other countries, to ensure a fair and credible trial of Putin and the officers who carried out his orders.
The International Criminal Court is already gathering evidence, but the United States should not trust a body that has had a poor track record of convicting war criminals and deterring war criminals, and is so politicized that the United States doesn’t even recognize its jurisdiction.
During World War II, the U.S. government decided not to pursue German war criminals until after an Allied victory for fear of provoking reprisals against prisoners of war. The United States issued threats that it would punish the Germans for their actions, but the failure to do anything—such as capture and try Nazi officials or prisoners of war—led Hitler to believe he could continue to mistreat their prisoners, civilians and combatants with impunity.
When the war ended, representatives of the United States, Great Britain, France and the Soviet Union met and negotiated the ground rules for a trial of the “major” war criminals. An International Military Tribunal (IMT, though commonly referred to as the Nuremberg Trials) was created to prosecute Nazis for the common plan or conspiracy to wage aggressive war in violation of international law or treaties; planning, preparation or waging an aggressive war; violations of the international rules of war; and crimes against humanity.
The Allies’ motivation for holding a trial was to set an example for the future to show that crimes of the magnitude committed during the war would not go unpunished. They also wanted to demonstrate they could resist the temptation to exact revenge (British Prime Minister Winston Churchill, for example, thought criminals should be summarily executed) and instead uphold the rule of law. They also sought to hold superior officers accountable for the actions of their underlings and to nullify the excuse that they were “just following orders.”
IMT prosecutors were determined to develop sufficient evidence to leave no doubt as to the guilt of the defendants. Like the Nazis, Putin and anyone else accused of war crimes should be entitled to representation and their innocence or guilt must be determined based on documentary and witness accounts.
How will Putin and others be tried since they are not likely to answer subpoenas to appear in court? Some perpetrators may be caught during the war and others tried, as some Nazis were, in absentia.
Does Putin care if he is called a war criminal? Some argue the accusation will make him feel cornered and, feeling he has nothing to lose, may escalate his attacks on civilians and, in a nightmare scenario, use nuclear weapons.
The United States is already using that fear to justify its unwillingness to directly intervene to save the people of Ukraine and a fellow democracy. Will we also overlook Putin’s war crimes for the same reason? Doesn’t this allow him to use nuclear extortion to restrict our ability to take any action against him? Worse, doesn’t it send a message to other nuclear states, such as North Korea, that they can do the same, and encourage Iran to build a bomb to achieve the same leverage?
Putin may not care about being labeled a war criminal, but his commanders might. Instead of counting on oligarchs to somehow rein in Putin because their yachts are taken away, isn’t it far more likely the war can be stopped by Russian generals who see that Putin is leading them to disaster and don’t want to find themselves being prosecuted for their actions? As in Nuremberg, they will not be able to escape accountability by claiming they were only following orders. Even if they are not captured and escape to Russia, they will never be able to leave without facing the possibility of arrest, incarceration, and possibly, execution.
Maybe Putin’s minions will decide fighting a losing battle for an autocrat is not worth the shame their families will have to live with if they are convicted of war crimes. They can ask the families of Nazi war criminals what it is like to grow up with that stigma.
And what about others who have committed war crimes, notably Chinese President Xi Jinping, who has interned the Uyghurs in concentration camps? Like Putin, Xi has enjoyed the benefits of leading a powerful country to escape accountability. The difference today is that virtually the entire international community is aligned against Putin, and we can watch evidence of his crimes every day on television. We cannot see what is being done to the Uyghurs, though it is no secret, and world outrage has not been mobilized against Xi. Moreover, the world’s interdependence with China is far greater than with Russia, making even the United States unwilling to punish Xi. It may be wishful thinking, but perhaps seeing an internationally-backed tribunal punish Putin’s aggression would give Xi pause before invading Taiwan.
As we have already seen, the anti-Semites wasted no time in making a specious comparison between Russia and Israel, and argued that the Jewish state should be similarly sanctioned for its treatment of the Palestinians. Undoubtedly, they would also call on a war-crimes tribunal to put Israel in the dock, but Western powers are not going to try Israel just as they won’t impose sanctions. They will have to be satisfied by the investigations of Israel by the International Kangaroo Court and the United Nations.
Just maybe, a tribunal that shows that unprovoked aggression and the slaughter of civilians will not be tolerated in the 21st century can succeed where Nuremberg failed.
