Peace versus Justice? On the Effects of the ICC on the War in Ukraine

(Photo: EPA / BBC)

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.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in "Peace versus Justice" Debate, International Criminal Court (ICC), International Criminal Justice, Peace Negotiations, Peace Processes, Russia, Ukraine, War crimes. Bookmark the permalink.

7 Responses to Peace versus Justice? On the Effects of the ICC on the War in Ukraine

  1. El roam says:

    Important post these days, no doubt !

    Worth noting, the prosecutor of the ICC, in his recent statement, mentioned that he has asked Russian authorities to meet him. I quote:

    “I have also transmitted a formal request to the Russian Federation to meet their competent authorities and discuss the current situation as it concerns my Office’s mandate. It is in my view essential that the Russian Federation actively engages in this investigation and I stand ready to meet with them.”

    Here:

    https://www.icc-cpi.int/Pages/item.aspx?name=20220316-prosecutor-statement-visit-ukraine-poland

    Worth also noting, the ruling or order, delivered yesterday by the ICJ, ordering Russia, to suspend any military activity in Ukraine (as provisional measure until final decision). I have posted on it (and link therein to the decision itself):

    https://weshallcom.wordpress.com/2022/03/16/ukraine-v-russian-federation/

    Thanks

  2. The Ukraine-Russia conflict could have been averted if the world through the auspices of the UN itself had mechanisms to ensure that conflicts are quickly nipped through UNSG led preventive diplomacy & other members of the UNSC formed a decentralized machinery for enforcement to restore peace.

    This is not the case here.

    Only an observation. The world works in mysterious ways.

    https://www.theguardian.com/world/live/2022/mar/18/russia-ukraine-war-latest-news-biden-to-warn-xi-against-backing-putin-as-russian-military-offensives-falter-live

  3. RUSSIA-UKRAINE CONFLICT : CHINA’S TRUMPCARD

    Only obvious that China leads a decentralized machinery for enforcement to restore peace & security in both nation-states. A Zero-Sum Game will further deteriorate Global Peace & Security & escalate the risks temperature.

    Ukraine’s largest trading partner in 2020 was China, with the value of trade between the two countries reaching $15.3 billion, more than double the value of any other trading partner. (3 Mar 2022)

    In 2021, Russia’s main trade partner was China, as the volume of export and import trade between the two countries reached nearly 141 billion U.S. dollars. China was the country’s both leading import origin and export destination. (3 Mar 2022)

  4. David Dzidzikashvili says:

    What is happening in Ukraine today these events had been happening for the past 20+ years, when Putin came into power by bombing his own people – civilian apartments and committing atrocities against the Chechen people. The response from the US, EU and NATO had been just complete silence and welcoming Putin to the summits and holding red carpet meetings for him. This further emboldened Putin who attacked Georgia in 2008 and conquered Abkhazia and Samachablo. What did the Western powers do? Absolutely nothing! Reset by the Obama Administration and warm handshakes by Merkel, total ignorance of the international laws and Putin’s war crimes against the Georgian people. What happened afterwards? Putin invaded Crimea and Eastern Ukraine. What did the Western powers do? Bare minimum of symbolic sanctions that continued to feed Putin’s war machine. Then Syria, use of chemical weapons, more atrocities… . What did the Western powers do? Absolutely nothing!
    So we are here as a result of Putin’s false perception that he could chew more than he could bite and the 20+ year ignorance from the EU, US and the NATO. Today there is strong response and sanctions that will take the Russian economy back to the 1990s indicators, however it is too late and too little. Ukraine needs the Patriot missiles, S-400s, S-300s, missiles to shoot down airplanes and incoming rockets at much higher altitudes than Stingers could reach, Ukraine needs much more firepower and the ability to control and close its own skies. Lets help Zelensky establish the No Fly Zone! The Biden administration looked weak, but slowly they are starting to wake up and see the true face of evil – Vladimir Putin who is trying to restore the new Russian empire…

  5. Trial Chamber I of the ICTY in The Prosecutor v Radislav Krstic had opened our eyes to the fact that perpetrators of atrocity crimes have agreed to evil.

    It was also decided that justice be done lest the world perish and the duty in meting out justice is hoped to have contributed to creating a better world.

    Do we as a global community continue to close our eyes to the perpetrators of evil? The sound ICTY judgment tells us to answer in the negative. Or the WORLD shall perish!

    https://www.icty.org/en/press/radislav-krstic-becomes-first-person-be-convicted-genocide-icty-and-sentenced-46-years

  6. Han Kelsen’s fragile argument for the necessity for a decentralized machinery for enforcement to restore peace & security has been proven to be effective when a UNSC P5 member is the aggressor and/or is committing atrocity crimes. Any proposed action at the UNSC level will be vetoed by the said UNSC P5 member.

    https://www.rferl.org/a/russia-rejects-icj-war-ruling/31757644.html

  7. We must always remember that the ICC is not a peace & security restoring mechanism.

    Han Kelsen’s fragile argument for the necessity for a decentralized machinery for enforcement to restore peace & security has been proven to be effective when a UNSC P5 member is the aggressor and/or is committing atrocity crimes. Any proposed action at the UNSC level will be vetoed by the said UNSC P5 member.

    https://www.rferl.org/a/russia-rejects-icj-war-ruling/31757644.html

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