Geolocated and forensically confirmed pictures trickled out this weekend from the Bucha suburb of Kyiv, Ukraine’s capital, after Russian troops withdrew: adult Ukrainian men executed with their hands behind their backs in the streets, women raped and burned, corpses dumped into sewers.
These atrocities—reminiscent of Rwanda, Kosovo, and Bosnia—cap off a month during which Russian crimes against civilians were already on full display: maternity hospitals being bombed, girls under age 10 being admitted to hospitals with clear signs of sexual trauma, and the encirclement and starvation of urban areas.
In addition, the panic set off by the images of Bucha will likely only reinvigorate refugee flows out of the country, which already number in the millions. All of this is made possible by the ultimate war crime: the unprovoked invasion of a sovereign country, long outlawed under the United Nations Charter and now formally prosecutable under international criminal law.
That international institutions are refusing to look away and are calling these crimes what they are—aggression, war crimes, crimes against humanity, potentially even genocide—demonstrates an international justice system at work.
The International Court of Justice has called on Russia to cease and desist; the chief prosecutor of the International Criminal Court (ICC) has opened an investigation into war crimes and crimes against humanity in Ukraine. The newly defined crime of aggression may be prosecuted in national courts under the doctrine of universal jurisdiction. And the United Nations has opened a Commission of Inquiry to gather evidence to fuel trials at these and any other tribunals that might be envisioned. Ukraine has asked the ICC to look at Bucha specifically. U.S. President Joe Biden has called for tribunals, and U.S. Congress has held a hearing.
These efforts are laudable. In the aftermath of war, international courts have real teeth. One of the greatest victories for humanity has been the indictment, trial, conviction, and punishment of generals and heads of state at The Hague.
Col. Gen. Ratko Mladic, the Bosnian Serb commander who carried out the Srebrenica massacre, was indicted, tried, and convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY). His civilian counterpart who ordered such atrocities, Radovan Karadzic, evaded justice for 13 years but was finally caught, extradited, and tried. Even former Serbian President Slobodan Milosevic, who had bankrolled the Bosnian Serb genocide against Bosnian Muslims, was eventually deposed and turned over to The Hague, where he died disgraced while awaiting sentencing.
But calls for war crimes trials while war crimes are ongoing can have two significant downsides.
First, early indictments foreclose off-ramps, further backing authoritarian regimes into a politico-strategic corner. As the South African former judge Richard Goldstone has argued, trials during ongoing conflict can be counterproductive toward bringing about a cessation of hostilities.
This, in turn, is problematic not only for peace prospects but also for civilians in war because, as political scientist Alexander Downes has shown, the longer wars continue, the more war crimes violations on all sides increase in likelihood and severity. Political scientists Jack Snyder and Leslie Vinjamuri have argued that amnesties, not trials, are often required to bring about peace: “Justice does not lead”, they write, “it follows”.
Consider: If the ICC were to indict Russian President Vladimir Putin, the indictment itself would surely become a bargaining chip in any potential peace settlement. If the West stuck by its guns, insisting that the Russian people replace and extradite Putin in return for lifting sanctions, this would only raise the stakes for Putin in winning at any cost. It would make him less likely to cave, more likely to take drastic actions, and more paranoid domestically, tightening the noose around his own inner circle and the public.
On the other hand, if the ICC were to give in, after issuing an indictment, to a Russian demand for immunity in return for peace, it undermines the entire purpose of international justice. This is why war crimes indictments are arguably best left until after a war is concluded.
But there is a perhaps more insidious problem: Tribunals can get in the way of deterring war crimes by substituting them for genuine action. They can create the impression that the international community is holding an aggressor accountable while enabling the international community to avoid the hard choices that could actually save civilian lives and enforce the U.N. Charter.
It is useful to recall the origins of the best known and perhaps most effective of all war crimes tribunals: the International Criminal Tribunal for the former Yugoslavia, which began in 1993 as an effort by Western countries to avoid intervening to stop genocide and crimes against humanity in the former Yugoslavia, a prospect for which there was little domestic support in the United States or Europe at the time due to the perceived debacle of U.S. intervention in Somalia around the same time.
Political scientist Christopher Rudolph shows how the court represented a “palatable compromise” between the ethical desire to intervene and the political (and tactical) challenges of doing more to end the war. As Aryeh Neier, former head of Human Rights Watch, stated, “It was a way to do something about Bosnia that would have no political cost domestically”.
The unavoidable truth is that the way to protect civilians from war crimes during ongoing war is not merely to threaten punishment for crimes sometime in the future but to put a stop to them now. And in Putin’s case, this stopping power can come only from military force, not solely from judges.
Political scientist Jacqueline McAllister’s work shows war crimes tribunals themselves deter crimes in war only in very specific circumstances and don’t work well when the perpetrating regime in question is beholden to an illiberal constituency. Indictments, she argues, do serve another important purpose: to rally the international community against an aggressor in ways that provide the military might to help bring the perpetrator to the table. But her analysis of the role the ICTY indictment played in Kosovo was predicated on a situation where indictment was combined with the willingness to back up judicial processes with a show of military force.
Consider: the Vietnam War’s My Lai massacre was not stopped by the threat of a war crimes trial; it was stopped when U.S. helicopter pilot warrant officer Hugh Thompson Jr. turned his guns on his fellow Americans, Lt. William Calley Jr. and his platoon, and threatened to open fire if they didn’t stop killing unarmed South Vietnamese civilians. He then provided an airlift to the survivors.
The Bosnian War was not stopped when the U.N. Security Council created the ICTY; it was stopped (rather swiftly) when NATO established and enforced a no-fly zone. As for the crime of aggression, the 1990 Iraqi invasion of Kuwait was not reversed through the use of a war crimes court, real or imagined, but rather through a collective security operation to punish then-Iraqi President Saddam Hussein for invading and push his forces out of the country.
Some will say escalation even of the defensive sort is too dangerous and the stakes are much higher in this case. Indeed they are: At stake is the entire rules-based liberal international order and with it, the idea that territorial aggrandizement through aggression is a thing of the past. As political scientists Alexander Montgomery and Amy Nelson write, persistently signaling that the United States is afraid to escalate has only emboldened and enabled Putin’s crimes. Other options exist.
Article 5 of NATO’s charter may not apply, but the U.N. Charter’s Article 2 does, as does the right of states to undertake collective defense in an instance of aggression until and unless the U.N. Security Council can act. Similarly, the so-called Genocide Convention requires states to prevent acts that involve targeting and destroying a national group’s civilian population in whole or in part. Bucha arguably qualifies.
But even if none of the above were true, more than 3 million refugees have already passed into NATO countries, threatening to destabilize them. The U.N. Security Council has rightly treated war crimes as a threat to international peace and security when they create refugee flows and viewed such flows, when intentionally manufactured through atrocity, as a violation of the territorial integrity norm, warranting a military response. Viewed this way, one could argue Russia has already breached NATO territory.
Yes, it is scary to contemplate a shooting war with a nuclear power, but Russia wants a nuclear exchange no more than the West does. The United States cannot continue to allow its nuclear arsenal to deter itself from fighting: It should use the threat of its own unequaled military power to deter Russian crimes and provide Ukraine with the stick it needs. Moreover, escalation is already increasing with every massacre. Every millionth refugee that crosses into an already overstretched land, every passing news cycle that increases enmity, makes it easier for oligarchs to turn against Putin and further reduces his chances for an off-ramp.
NATO should stop casting about aimlessly for that off-ramp and create one forthwith by calling Putin’s bluff, demonstrating that Russia can only lose by continuing the war and signaling that the incontrovertible evidence that civilians are being willfully massacred and raped—to say nothing of the millions of refugees whose movement is already compromising NATO borders—has crossed a line.
Biden erred in signaling that a military attack on NATO territory was the only thing that would bring the West into the war. He can and should use the Bucha massacre and the refugee crisis as a rationale to adopt a more muscular position and force a settlement before things escalate further.
An all-out NATO assault to drive Russia back and enforce the U.N. Charter could, at this point, quite reasonably be threatened if Russia does not withdraw. As a shot across the bow, NATO could begin by sending troops to secure western Ukraine, freeing up the Ukrainian defense forces to hold the east, and establish the requested no-fly-zone to protect Ukrainian skies and humanitarian access.
Even more minimal initiatives would represent a step up from thoughts, prayers, and accusations of war crimes to actually begin saving lives: Even before the Bucha revelations, Montgomery and Nelson had suggested providing counterfire systems to Ukraine; aiding the evacuation of refugees; or organizing evacuations by sea in Mariupol, a Ukrainian port city.
Options abound: Political will is required. It’s all too easy to threaten war crimes tribunals. The promise of a later trial is a small solace to the families of those dead in the streets.
Charli Carpenter is a professor of political science at the University of Massachusetts Amherst, a senior research fellow at Harvard University’s Belfer Center for Science and International Affairs, and director of Human Security Lab.