Russia’s invasion of Ukraine, now nearly two months old, has stunned the world in its sheer brutality. Evidence of atrocities, including executed civilians in Bucha and residential neighborhoods reduced to rubble, led the International Criminal Court (ICC) to open a war crimes investigation.
President Biden called Russian President Vladimir Putin a “war criminal,” adding days later that Russia was committing genocide in Ukraine.
But if recent history is any indication, the odds are against anyone being brought to justice, even if war crimes can be proven. That is because in the 76 years since the Nuremberg trials, officially known as the International Military Tribunal, set the standard for punishing individuals for crimes against humanity, successful prosecutions have proven difficult.
In this episode of History As It Happens, war crimes prosecutor Alex Whiting discusses the reasons why the ICC has struggled to fulfill its mission since its inception in 2002. Mr. Whiting, a former ICC prosecutor, now works for a separate body in The Hague focusing on atrocities allegedly committed by the Kosovo Liberation Army in the late 1990s.
“The cases can take a long time. Sometimes investigators don’t have access to the crime scene… sometimes it takes a long time to arrest fugitives. Omar al-Bashir, for example, was charged by the International Criminal Court in 2009 and he remains a fugitive today. Although he could be surrendered by Sudan this year to the ICC,” Mr. Whiting said.
As Max Fischer pointed out in The New York Times, the ICC has indicted about 40 people in the past 20 years – all from Africa. In other parts of the world, it has proven difficult to impossible to investigate atrocities or reach alleged perpetrators.
And Mr. Whiting said there is a high bar for proving a case. As the Nuremberg trials established, all defendants – even the most heinous criminals such as the Nazis – are entitled to due process and a legitimate defense. Three of the original 24 defendants at Nuremberg were acquitted. Ten were sentenced to death.
The reason why so many top Nazis were captured was because the Allies conquered and occupied Germany after World War II. Today, while it seems possible that the Ukrainian military might capture Russian military leaders in the field, Mr. Putin and his ruling circle will remain out of reach.
To listen to the full interview with Mr. Whiting, download this episode of History As It Happens, which is available wherever you get your podcasts.
