Ukraine’s dilemma: How to negotiate with someone who could be a war criminal

That truth is complicated by the fact that this war is very likely to end through negotiations with Putin, whose grip on power in Russia seems absolute.

That was before the horrific images showing dead civilians on a street in Bucha.

RELATED: CNN’s Nathan Hodge discusses the well-documented brutality of the Russian military.
Biden had previously said he felt Putin was a war criminal, and Bucha’s reporting led him to say a methodical case must be built to bring the Russian leader to trial.

“We have to get all the details so this can be a real war crimes trial,” Biden told reporters in Washington. “This guy is brutal and what’s going on in Bucha is outrageous and the whole world has seen it.”

Putin is also the key to ending the violence

When Ukrainian President Volodymyr Zelensky toured the remains in Bucha, he noted the obvious.

“It is very difficult to negotiate when you see what they have done here,” Zelensky said.

Wearing a bulletproof vest and surrounded by security, he spoke about “key leaders of leading countries who made the decisions about whether Ukraine should be a NATO member.”

“I think they should come here and see how these games end, how this flirtation with the Russian federation ends,” he said.

At some point, Zelensky will likely have to negotiate directly with Putin to end the war. Earlier in the weekend, Ukrainian negotiators had said they were nearing the point where “direct consultations” between the two might be possible.

Create a ‘mechanism for justice’

In separate remarks on Sunday, Zelensky said he is also seeking a new “justice mechanism” to investigate crimes committed by Russian soldiers on Ukrainian soil.

“This mechanism will help Ukraine and the world to bring to concrete justice those who triggered or in any way participated in this terrible war against the Ukrainian people and crimes against our people,” he said.

Officials from the European Union, which Ukraine also wants to join, have said they have set up a joint investigation team with Ukraine to investigate suspected Russians. war crimes.
All this adds to the efforts of the International Criminal Court, which has launched its own investigation into Russian activities in Ukraine.

Putin’s protection

Putin’s power in Russia seems, for now, strong, making it almost impossible to bring him to trial, as Biden suggests, according to Kenneth Rodman, a political scientist at Colby College who has studied war crimes and the ICC.

In all of the above cases, “in order to prosecute someone you have to defeat them or they have to be overthrown in some kind of coup or political process,” he told me in a phone conversation.

that’s how it was with both of them Nazi and Japanese leaders after World War II, and with the Bosnian, Serb, and Rwandan leaders of the 1990s.

“If they haven’t been beaten, you have to negotiate with them,” Rodman said.

Overcoming immunity for world leaders

The agreement that created the International Criminal Court, the Rome Statute, not only prohibits trials in absentia, but also appears to immunize leaders in power from prosecution, according to Rodman.

I asked a former ICC official, James Goldston, who is now executive director of the Open Society Justice Initiative, whether the world has the apparatus to prosecute someone like Putin. He agreed with Rodman that heads of state are generally granted immunity from prosecution.

But Goldston sent a passage from the Rome Statute — “it shall apply equally to all persons without any distinction based on official position. In particular, official position as Head of State or Government” — and said the Criminal Court International could use it to justify a case against Putin.

There are also proposals to establish a special international body focused specifically on aggression in Ukraine, Goldston said.

Multiple ideas have been suggested: a state could try to carry out its own prosecution of Putin under the international legal theory of “universal jurisdiction.” Germany did this when it tried a former member of the Syrian regime. Or the United Nations could set up a special tribunal specifically to look into the actions of Russia and Putin.

Move up the chain of command

For now, any war crimes effort is likely to start at lower levels, with the Russians on the ground in Ukraine.

Here is an excerpt from the email Goldston sent me:

There are many people who are responsible for the crimes that are now being committed in Ukraine. International criminal investigations often begin with the “crime basis” (authenticated images, witness testimony and other evidence relating to murder, torture, rape or other prohibited crimes that may amount to war crimes or crimes against humanity) and continue up through a chain of military procedures. or political authority to prove the guilt of those who ordered, or knew about but did not prevent/sanction, the commission of such crimes.

Negotiating with ‘bloody hands’

Accountability for the alleged actions of the Russians in Ukraine is one thing, stopping the war right now is another.

“The idea is to hold people accountable and end the culture of impunity that allows this type of behavior,” Rodman said.

“On the other hand, ending civil conflict requires negotiating with people with bloody hands,” Rodman told me, pointing to negotiations the United States and others undertook with Serbian leader Slobodan Milosevic in 1995 or negotiations between the African National Congress and the apartheid regime. “It’s a basic dilemma in international relations.”

Here is a photo of Bill Clinton celebrating the Dayton Peace Agreement behind Milosevic. Milosevic later died in jail while awaiting trial as a war criminal, but only after he lost elections in 2000 and fell from power in Serbia and Yugoslavia.

Goldston, the former war crimes prosecutor, said the need for accountability cannot be lost.

“Lessons from past conflicts overwhelmingly suggest that no peace will be sustainable if it is based on impunity for those most criminally responsible,” he said.

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