As Russia continues its scorched earth campaign across Ukraine, a growing number of governments and officials accuse Russia of war crimes. These accusations largely relate to Russia’s use of indiscriminate weapons on civilian areas and prohibited ammunition. In particular, it does not include the unprovoked and unjustified invasion of a sovereign country. The reason for this is a long-standing blind spot in international conventions on the pursuit of “wars of aggression.”
On the contrary, Putin is more likely to be blamed for the way he waged the war than for the war itself. In this regard, it seems that little has changed since the Second World War on the legal level. Yet what has changed are the economic rather than the legal consequences of the aggression.
Any prosecution for war crimes would be many years away, if ever. Russia is not a signatory to the International Criminal Court and has veto power at the UN. Putin is a relic of the 20th century – a strongman who still believes in “victor’s justice”, whereby the victorious combatant defines what a “just” war is.
There is not a flicker of support under international law for Russia’s attack on Ukraine; he has every legal justification for a drive-by shooting. However, violate international law does not mean responsibility to international law.
When most people think of war crimes, they think of the Nuremberg trials after World War II. These tribunals were transformative moments that included American, British, French, and Russian judges seeking to hold Axis leaders accountable for their crimes against humanity. Notably, the International Military Tribunal at Nuremberg declared that “to start a war of aggression is not only an international crime; it is the supreme international crime which differs from other war crimes only in that it contains within itself the accumulated evil of the whole”.
Judging by this statement, one would think that Putin could be beaten in a Nuremberg-like tribunal if he is defeated in Ukraine. However, it is much more complicated.
“Aggression” occupies a strange place in international law and what is called jus ad bellum, the law governing the use of force. For years, advocates of international law have sought to give individuals, like Ukrainian citizens, viable claims as victims of aggression.
On February 28, Karim Khan, the prosecutor of the International Criminal Court (ICC), announcement the opening of an investigation into possible war crimes in Ukraine. The ICC has jurisdiction over the crime of aggression, following an amendment in 2018 to the Rome Statute. Yet neither Ukraine nor Russia are signatory states to the Rome Statute which, in 2002, established the ICC. Khan relies on Ukraine’s declarations that it would accept the court’s jurisdiction over crimes committed on its territory.
There is another problem: the ICC can’t really investigate the crime of aggression in Ukraine. The 2018 amendment specifically prohibits the exercise of jurisdiction over crimes of aggression by nationals or on the territory of a state that is not a party to the statute. It can investigate war crimes and crimes against humanity, but other countries, including the United States, may be wary of sweeping interpretations of these crimes.
This is why countries focus on alleged crimes like targeting civilian areas, but these can be difficult to prove. Relevant articles governing attacks on civilians refer to “intentionally directing” or “intentionally initiating” attacks against civilians or “civilian objects”. Again, many countries may feel uncomfortable allowing a looser portrayal of such intentional acts on a battlefield. (There are also possible issues under the Geneva Conventions for both Russia and Ukraine.)
Many of us believe that there is evidence of these war crimes. Moreover, as leaders like the Vice President Kamala HarrisKamala HarrisHarris: ‘Any intentional attack or targeting of civilians is a war crime’ Watch: Vice President Harris holds press conference in Poland Jussie Smollett gets 150 days in jail after faking hate crime against himself MORE to have refers to war crimesit can be difficult for countries to opt out of such investigations or even drop sanctions after the conflict is resolved.
However, Russia has shown how little influence these threats have on countries at war. This has not changed since Nuremberg. What has changed is the power of economic sanctions.
The globalization of markets has led to an interdependence which, as in the case of Russia, can threaten the financial ruin of a sanctioned nation. Thus, economics – rather law – can achieve the lofty goals of Nuremberg by creating future deterrents to wars of aggression. This may include China in its saber slashing against Taiwan.
One of the most important economic theories is the Coase theorem, dealing with concepts such as transaction costs and perfect markets. Nobel Prize-winning economist Ronald Coase used his theory to discuss the incompatibility of a neighboring farmer and a rancher. One of the most cited aspects of his work is that, in a perfect market, it doesn’t matter which party has a “right” or legal advantage to cultivate or raise livestock. In such a market, the outcome of a dispute will depend on which is more valuable: livestock or crops.
In a strange way, the Russian invasion shows how irrelevant international rights or entitlements favoring Ukraine are, at least in the short term, to the outcome. In a perfect world (like a perfect market), Ukraine would prevail. Peace is more precious. Yet, even with all legal rights and international rights vested in Ukraine, Russia still invaded due to the added costs to Ukraine and the world by opposing Putin.
According to the Coase Theorem, the less valuable activity may prevail due to the role of “transaction costs(or the additional costs of trading, trading, and trading). No real market is “perfect” given these additional costs.
However, it is the market rather than the law that may determine the ultimate results of this conflict or future conflicts. These are unprecedented economic sanctions that now add transaction costs to tyrants. As a result, the Russian the ruble has lost almost half of its value, his the stock market cannot openand almost all big business has cut the country.
Putin maybe thinking strategically in the 20th century, but acting economically in the 21st century. Indeed, while it is unlikely to recreate the territory of the former Soviet Union, it is working to recreate its disastrous planned economy. Faced with multinationals fleeing Russia, Putin is moving towards the failed Soviet example of nationalized industries and centralized economic planning.
It is possible, of course, to exist as a legal and economic pariah. You just have to be prepared to reduce Russian existence to the comparable subsistence level of your allies Syria and Iran. Even China recently declined to protect the ruble which is collapsing in its own markets.
Costs rise for Russia as real trade and market transactions decline; it must try to support a major economy through surrogates like China. It’s like trying to build a bridge while holding onto a collapsing one. Russia’s economy is imploding and Russia is fast approaching disaster payment default.
Ultimately, however, Putin cannot create markets through propaganda or coerce international lenders through force of arms. This is why the markets could well force the conclusion of this conflict. Putin threatens both peace and profits with his destructive actions. To use Coase’s construction, which is more valuable – Putin or peace? Putin probably already knows the answer, as he blindly rushes towards Kyiv and economic ruin.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.