Anyone hoping that Russian President Vladimir Putin will soon find himself in the dock of the International Criminal Court should take several long, deep breaths. While Putin’s war of aggression in Ukraine has not gone as planned, his grip on power remains unchallenged. And even if the ICC were to indict Putin for war crimes, it has no police force to arrest him. The international community simply lacks such enforcement tools.
But Putin’s accomplices may not be as impervious as their leader. Over the past decade, we have seen a sharp increase in the number of tyrants and their henchmen brought to justice, particularly in domestic courts and “hybrid” tribunals that combine national and international components.
In September, a hybrid court formed by Cambodia and the United Nations upheld the life sentence of former Khmer Rouge leader Khieu Samphan, who was convicted of crimes against humanity in 2014 for his part in the 1970s genocide. In 2016, a similar hybrid tribunal formed by the African Union and Senegal convicted the former Chadian dictator Hissene Habre of crimes against humanity in a case that I helped prosecute. Peru, Guatemala, Egypt and Burkina Faso have convicted their former leaders for human-rights crimes in domestic courts. In a case I am currently working on, the Gambian government seeks to prosecute exiled former President Yahya Jammeh before a hybrid court. And in September, Guinea began criminal proceedings against ex-strongman Moussa Dadis Camara for a 2009 massacre.
These cases have been accompanied by a surge in trials held under what is known as “universal jurisdiction,” the principle that allows countries to prosecute the worst human rights crimes committed anywhere in the world. More than a hundred defendants are currently being prosecuted, mainly in Europe, for atrocities committed in countries such as Syria, Iraq and Rwanda. And just this month, a French court convicted a former Liberian rebel of crimes against humanity as an armed group commander during that country’s civil war.
But this surge of activity has not received as much attention as the ICC, which in 20 years has not sustained the atrocity conviction of any state official at any level anywhere. Yet, these prosecutions are more organic than those conducted by the ICC, because they rely on victims’ activism and on special war crimes units operating within the police forces and judiciary in European countries, some of which have opened wide-ranging “structural investigations” into human rights violations abroad. The European Union has assembled several joint investigation teams for cross-border investigations, coordinating this work through its “Genocide Network.”
Taken together, these developments could be described as a revolution of accountability. According to Stephen Rapp, a former US ambassador-at-large for war crimes issues in the Office of Global Criminal Justice, recent developments herald the emergence of a new “international justice ecosystem.”
The most recent additions to this fledgling movement are three independent investigative mechanisms created by the UN for atrocities committed in Myanmar and Syria and by the Islamic State group. These investigative bodies build war crimes cases and transfer them to national prosecutors acting under universal jurisdiction. Such investigations have already led to several convictions, including the landmark case of a former Syrian intelligence officer who was sentenced to life in prison in Germany in January for the murder and torture of prisoners at a detention facility in Damascus.
Other developments also mark a worldwide shift toward greater accountability for war criminals. The UN Human Rights Council has created commissions of inquiry in almost a dozen countries, tasking them with laying the foundations for future criminal accountability. Many in the international legal community, including Rapp and the International Commission of Jurists, advocate the creation of a standing independent investigative mechanism to enable criminal prosecutions in the worst human rights crises.
That brings us back to the crisis in Ukraine. Russia’s naked aggression and its flagrant war crimes have given the ICC a golden opportunity to demonstrate its relevance. The ICC’s chief prosecutor, Karim Khan, has seized the moment and announced the opening of the court’s largest-ever field office in the country.
One hopes that the ICC and Ukrainian prosecutors will be able to go beyond the foot soldiers who have been tried for war crimes since the invasion began and move up the Russian chain of command. Their work will benefit from the nascent international justice ecosystem. Six of Ukraine’s neighbors, together with the ICC, have formed a joint investigation team. In March, the Human Rights Council created a well-staffed commission of inquiry on Ukraine to identify violators and to ensure that “those responsible are held accountable.” And a dozen other countries have opened their own universal-jurisdiction investigations into war crimes committed in Ukraine.
Putin himself, unfortunately, may still be out of reach. But justice is on the march, and it is coming for war criminals -- in Ukraine and around the world.
By Reed Brody
Reed Brody, a war crimes prosecutor, is the author of “To Catch a Dictator: The Pursuit and Trial of Hissene Habre.” -- Ed.
(Project Syndicate)
