The US should support a national Ukrainian war crimes tribunal

Yes, Russian President Vladimir Putin and other Russians can be prosecuted for war crimes in Ukraine. The real question is how?

If a war crimes tribunal is to build peace through justice, then the answer to how it should be done is simple: by Ukrainian investigators and prosecutors, in front of Ukrainian judges, in Ukrainian courts.

There is a long history of domestic prosecutions of international crimes. The Eichmann trial in Israeli courts might be the most famous. But the world’s first genocide conviction was secured in 1946, in the trial of Arthur Greiser at the Supreme National Tribunal of Poland, before the Nuremberg Tribunals. Greiser was found guilty of genocide for pursing the German policy of the “Germanization” of Poland.

More recently, countries across Europe, Africa, Asia and the Americas have taken this approach, and scholars have documented advantages that accrue when national courts (and investigative commissions, such as in Canada) investigate and prosecute international crimes. Courts in Argentina secured genocide convictions and serve as examples of how domestic applications of international criminal law can have a positive influence on the rule of law and grassroots social movements for human rights and reconciliation.

The International Criminal Court (ICC) could prosecute Russian crimes. Ukraine accepts the ICC‘s jurisdiction, and the ICC prosecutor has requested permission to begin investigations. The UN General Assembly can bypass the Security Council and enter into a treaty with the Ukrainian government to establish a hybrid international-national tribunal, like the tribunals the UN established in cooperation with the governments of Cambodia and Sierra Leone.

But international tribunals would be dangerous from a conflict resolution perspective. The Russian war in Ukraine is a proxy war between great powers competing in an imperial world system. A vast majority of Russian citizens support the war in Ukraine, viewing Russia as the victim of Western aggression. Western sanctions have already devastated the Russian economy. Those who suffered most are everyday Russians — the middle class and the poor. This has increased support for Putin, driving Putin’s popularity above 80 percent. The more average Russians suffer from post-sanctions aftermaths, the more Russians will blame their suffering on the West and rally behind a nationalist leader.

Imagine the hellish politics that would be unleashed in Russia if – on top of crushing Western sanctions – a Western-backed tribunal charged Russians with genocide. Such trials would appear to Russians as proof that Russia is a victim of a Western conspiracy. If World War II was born in the German resentment of the World War I peace treaty, then the seeds of World War III could be sown by Western governments impoverishing average Russians for a generation and then supporting the prosecution of Russian national heroes as war criminals. These risks lesson by shifting a tribunal to the Ukrainian national stage. But there are other advantages to housing the trials of international crimes within national Ukrainian institutions and mechanisms.

First, Russian elites who direct the war from Russian territory could be prosecuted in national Ukrainian courts that invoke universal jurisdiction to try genocide under the UN Genocide Convention. The Russian government will never turn over Russians to a Ukrainian tribunal — but they are just as unlikely to turn them over to the ICC or a UN-backed tribunal. But a Ukrainian arrest warrant with international support would be a powerful symbol of Ukrainian sovereignty and international solidarity.

Second, investigating and prosecuting international crimes under Ukrainian legal architectures would support the growth of Ukrainian institutions, and anchor post-war rule of law and human rights. International tribunals are plagued by intrigue and interference; they are expensive and must pay salaries to international lawyers and staff that could be better spent on salaries for Ukrainians; and they are susceptible to accusations that their version of justice is detached from local needs and demands.

Third, even if no charges are brought, investigating Russian atrocities would be beneficial. The Documentation Center of Cambodia, a non-governmental organization dedicated to documenting the Cambodian genocide between 1976 and 1979, has done just as much as, if not more than, the UN-backed tribunal to build post-genocide peace in a way that everyday Cambodians find just and meaningful. A Ukrainian documentation center could support a public archive and museum to anchor Ukrainian-Russian civilian dialogues and people-to-people diplomacy. If similar conflict resolution efforts are working in the aftermath of the Russian war in Georgia, it is conceivable it would work in a post-war Ukraine. 

As Laurie Nathan and Tim Murithi recently debated,peace sometimes does come into conflict with justice, especially when stopping a war means including a genocidal villain in a peace settlement — and thus ceding painful concessions to that villain’s power. And yet, we know that true peace is never really achieved without a form of justice that is meaningful to the people who must rebuild their lives in the aftermath of atrocities. 

De-escalating the rhetoric around international tribunals in Western capitals would help diplomatic efforts to bring this war to an end, without threatening the possibility of a meaningful national Ukrainian justice process to investigate, document and prosecute war crimes, crimes against humanity and genocide.

The exact mechanisms and forms of justice in Ukraine cannot be predetermined. What we do know is that whatever prosecutions or justice mechanisms emerge, they must be Ukrainian-imagined, Ukrainian-led and Ukrainian owned.

Douglas Irvin-Erickson is assistant professor at the Jimmy and Rosalynn Carter School for Peace and Conflict Resolution at George Mason University. He is author of “Raphaël Lemkin and the Concept of Genocide” and co-editor of the forthcoming book “Wicked Problems: The Ethics of Action for Peace, Rights, and Justice.”