Will Russian troops and commanders ever be prosecuted for war crimes in Ukraine?

The likelihood of a Nuremberg-style trial for Russian war crimes is very small. Because we’re still a long, long way from a consistent worldwide practice of prosecuting war crimes.

Marcel Ophuls did an excellent 1976 film on the Nuremberg Trials titled, "The Memory of Justice." At the moment, the example set by those trials is a memory and a dream. Here’s an excerpt featuring Telford Taylor, one of the American prosecutors:

I tend to be cautious about war crimes reports while the wars are in progress. Because actual independent confirmation immediately after the events is often lacking. As with the 1940 Katyn Massacre, it can take years before the story can be clearly verified in public. It took 50 years before the Soviet Union officially acknowledged that Soviet forces had committed the killings in that incident.

Michael Thumann reports on the prospects for Russian officials and soldiers facing charges for atrocities during the Russia-Ukraine War:

Unlike the occupation of eastern Ukraine and Crimea by Russian and pro-Russian troops in 2014, this time Ukrainians can gather a great deal of evidence of violations of international law and war crimes. The withdrawals of the Russian army from the suburbs of Kyiv in the spring, the withdrawal from Kherson in November and the hasty escape from the Kharkiv area in September 2022 have exposed numerous alleged crimes. Ukrainians are collecting evidence of mass graves, torture sites, looting, rape and targeted destruction of homes. The destruction of Mariupol in the spring and the bombing of major Ukrainian cities since late summer are also war crimes.

But how does a criminal get before a tribunal? There is still no predetermined path for this. The International Criminal Court could take up the matter if Russia were a member state. But Putin wisely [sic] did not allow Russia to become a member or ratify the so-called Rome Statute. Previous special tribunals on the crimes and genocides in Rwanda and the former Yugoslavia came into being because the UN Security Council decided to do so. Today, too, the Security Council could decide that the International Criminal Court should take action on Russia. The Russian ambassador, however, holds one of the five veto cards in the Security Council. Nothing will come of it.

It is normal in wars for both governments and press outlets on Our Side to publicize real and alleged war atrocities on the Other Side. Those of Our Side are treated with more discretion. Americans who have followed this for a while will recall how, we might say, restrained the US government and prosecutors were on taking action in cases ranging from the My Lai massacre to CIA-sponsored Contra killings in Nicaragua, to Abu Ghraib.

Alan West was convicted of torturing a prisoner in Iraq while serving in the US Army. “West accepted non-judicial punishment, was fined $5,000, and allowed to retire as a lieutenant colonel.” He was later elected as a Republican Congressman from Florida who “stirred controversy during his time in Congress for incendiary comments about Islam, … and unfounded accusations that 81 Democratic members of Congress were members of the Communist Party.”

Like Russia, the US also does not recognize the authority of the International Criminal Court over members of its armed forces. As a pragmatic decision, that was probably at least as what Michael Thumann called Putin’s wise decision to block Russia acceptance of the same court’s jurisdiction. But neither decision contributed to more justice in the world.

New Cold Warriors can call that “false equivalence” or whatever other label they want to use to brush it off. But the position of the US on its own culpability before the International Criminal Court really is the same as Russia’s. Both reject it.

(This post is also available on Substack with detailed footnotes.)