When thirty-nine states asked that alleged war crimes in Ukraine be investigated by the International Criminal Court (ICC), they bolstered the chances that perpetrators will one day be held to account. But will the pursuit of ICC justice bring peace to Ukraine? Will the investigation de-escalate violence and deter atrocities, or could it make matters worse?
The short answer is that no one should expect that the ICC will deliver peace, solve the root causes of conflict in Ukraine, or lead to a wholesale reduction in violence. Expectations need to be managed. The ICC is in the accountability game, not the conflict resolution game, and as my research and book on the subject illustrate, the Court’s effects on peace are often ambivalent. But that does not mean that the Court’s pursuit of justice is not worth supporting. Far from it.
Based on what we know about the war in Ukraine, here’s what may – and may not – happen.
The ICC and Putin’s Existential War
There is no doubt that Russian President Vladimir Putin is a war criminal. For decades prior to Russia’s invasion and the horrors that followed, Putin unabashedly made war crimes a central part of his modus operandi. Whether it was his war in Chechnya in the late 1990s, his fabricated conflict in Georgia in 2008 (which is also under ICC investigation), his sadistic bromance with Syria’s Bashar al-Assad and their use of chemical weapons against civilians, or his annexation of Crimea and lethal proxy war in eastern Ukraine, there is ample evidence that Putin cares little for human life – whether Ukrainian, Russian, or otherwise.
At the same time, there are signs that the war in Ukraine has become existential for the Russian leader. With states devising new sanctions by the day, companies fleeing operations in the country, and landslide votes condemning his actions at the United Nations General Assembly, Putin is severely isolated. It is no longer implausible that elites, not wanting to go down with a sinking ship, will attempt to take power from Putin. It may very well be that Putin thus feels he must “win” or at least appear to win the war in Ukraine to survive it.
Under these conditions, it is unlikely that Putin is losing any sleep over the ICC’s investigation. To date, he has not responded to the Court’s intervention into Ukraine and it is likely of minor relevance to him given the stakes he has in the conflict he started.
Any sustainable peace with Putin is not on the table. Putin isn’t interested in it and neither are members of the international community. It is also unclear how the war in Ukraine – or the threat of others in the future, might end with Putin remaining in power. But if the ICC’s intervention adds to Putin’s isolation and he is eventually deposed, perhaps the Court could contribute to peace.
But there are a lot of “ifs” that would have to be satisfied: if regime change does happen, if whoever takes over is not worse than Putin, and if Russia itself does not collapse into civil conflict as a result, then maybe one could say the ICC helped bring greater regional peace.
On a more optimistic note, it is possible that some Russian officers and their superiors will worry about ICC scrutiny. If that is the case, the Court’s investigation could deter them from committing additional atrocities. Importantly, the ICC’s chief Prosecutor has a team of investigators already in Ukraine. This is an important shift for the Court, which has typically been risk-averse and avoided sending its investigators into situations of active hostilities. With investigators on the ground, some belligerents might think twice.
Ukraine’s Interest in the ICC
On the Ukrainian side, there is greater reason to believe that the ICC’s investigation could affect Kyiv’s behaviour and deter Ukrainian soldiers from committing atrocities.
Unlike Russia, Ukrainian authorities have a clear interest in staying on the “good side” of the ICC and international humanitarian law more generally. The ICC has been examining alleged war crimes and crimes against humanity in Ukraine since 2014, at the behest of Kyiv. With an investigation now open and active, the government of President Volodymyr Zelenskyy will want to ensure that it is slanted against the Russian regime.
Ukrainian officials have gone to great lengths to stress that international law is on their side. If their army begins to commit widespread atrocities, such as reprisal killings of detained Russian soldiers or ethnic Russians living in Ukraine, that cherished position would quickly evaporate. Practicing restraint is in their interest.
As it stands, the narrative of the war is very much in Kyiv’s favour. Ukraine is (rightly) seen as the victim of Russian aggression. Zelenskyy and his military leaders will be wise to keep it that way by avoiding atrocities, especially with ICC investigators keeping a close watch.
An investigation still worth supporting
Despite commonplace rhetoric about there being “no peace without justice”, it is often unclear what effect war crimes investigations and prosecutions have on peace. But that is no reason to set aside support for the ICC and its goal of achieving a modicum of accountability for victims of mass atrocities.
It would be cruel to say that because the ICC is not a panacea, it should not endeavour to pursue justice. As the Court’s chief Prosecutor Karim Khan has stated: “If we don’t try, we have no chance. At least if we try, maybe we can move the dial on accountability in a way that is positive and meaningful.”
While the Court won’t solve the war or bring about peace in Ukraine, it is worthwhile remembering: it is the citizens of Ukraine who have demanded justice and accountability. For that reason, above all others, the ICC’s investigation is worth supporting.
A version of this post was originally posted at al Jazeera.