In an unscripted moment in mid-March, President Joe Biden called Russian President Vladimir Putin a “war criminal” in response to the way he’s waged war in Ukraine. U.S. Secretary of State Antony Blinken has made similar claims, telling reporters he believes Russian forces have committed war crimes based on reports of indiscriminate shelling and targeting of civilians.
The accusations were not made casually, and for good reason. They’ve framed Putin’s war as not just an act of aggression, but a distinctly wicked one, and they raise the possibility of legal action in the aftermath of the war.
On the other hand, the odds that Putin is at some point hauled before the International Criminal Court are slim. Given that reality, what is the purpose of branding him a war criminal? And what does it mean for the U.S., a country that refuses to become a member of the International Criminal Court and that human rights watchdogs have said has perpetrated many war crimes of its own in recent decades, to accuse another country of doing so?
There are proposals for a new Nuremberg: a standalone tribunal to try Putin and others for starting the war.
For more in-depth context, I called Samuel Moyn, a scholar of history and law at Yale University and the author of “Humane,” a book discussing what it means to try to make war more ethical. What began as a chat about the United States’ accusations evolved into a wider-ranging conversation about the fascinating history and immense challenges of developing a legitimate system of international justice.
That conversation, edited for length and clarity, follows.
Zeeshan Aleem: Why do you think the Biden administration has repeatedly accused Putin of being a war criminal?
Samuel Moyn: Well, first, because he is one. There are rules, that are very old, that prohibit some of the acts that Putin has, if not ordered, then supervised. But of course, that’s true of a lot of others in the world who haven’t been punished. And, of course, that’s true of the leaders and soldiers of Western countries.
I think the main reason Biden said that is to try to shift Putin’s incentives. When that language comes into play, it means that there’s a future specter of accountability. And even if it’s not real, it could have an effect. So it changes potentially the way that people think about the conflict, and even how leaders might think about conflicts.
Could you walk us through some of the potential consequences of these accusations? From a legal standpoint, but also politically and culturally?
Moyn: Well, if the charge is meant to have a legal meaning, then we’d be starting to look for a forum in which the transgressors — Putin, and his generals and soldiers — could be held accountable. Now, of course, that would presuppose capturing them at some point so that they’re actually able to stand trial.
That’s why it’s probably more worth considering this almost as a political charge. It’s true, there are some new venues that didn’t exist in the past. Of course the Geneva Conventions, the main treaty that prohibits war crimes, envisions states punishing their own. But this doesn’t tend to happen, and Russia won’t punish its own any more than America has.
But there is an International Criminal Court, which is investigating the possibility of war crimes on Ukrainian territory. Until Russia quit the Council of Europe, there was the fact that it was a member of the European human rights regime, which has made judgments in prior cases of Russian war — which leads to, if not personal accountability, then at least states having to pay penalties, which Russia has.
Finally, there are proposals for a new Nuremberg: a standalone tribunal to try Putin and others for starting the war. Because that’s what the Nuremberg trials originally prioritized — the crime of aggressive war. Technically, the International Criminal Court can also try aggression, but not in this situation, since Russia is not party to the treaty.
So that’s all the legal side. And as I’ve suggested, that’s really hypothetical, given that we’re so far away from a real accountability regime in legal terms.
However, historically there have been immense political consequences to charging war crimes, and charging atrocity in particular. Going back at least to the beginning of the 20th century, when the Germans were accused of war crimes when wheeling through Belgium in the initial days of World War I, the claim has delegitimized the perpetrator in the eyes of the world. That’s one goal for charging war crimes in the court of public opinion.
In our lifetimes, the importance of war crimes accusations to those who got concerned about American detainee abuse, and especially torture, was not just to see if they could bring an end to the practice, and not just to pave the way for accountability for Americans involved in the practice, but also to make the war seem less legitimate. And so I would say that’s probably the central goal of those who are making this claim. And they’re on firm ground, because the evidence of Russian war crimes is, in some cases, before our eyes.
Can you walk us through the practical obstacles to Putin being tried by the ICC?
Moyn: First its perpetrators have to be tried in person, and that means they have to be captured. And there’s no global constabulary. In the case of the tribunal for the former Yugoslavia, it took years and years for the conditions to arise to capture some of the worst war criminals like Ratko Mladic. And a lot of it was luck.
There could be charges against Putin that, even if you couldn’t get at him, could affect him even distantly in the future, by making it difficult for him to travel internationally, since he may fear being arrested over war crimes. We don’t know what’s going to happen in Russia, and maybe a future government would offer him up for trial. But all of this is so hypothetical that it’s probably best to focus on how the rhetoric of war crimes is politically damaging right now.
What’s the point distinguishing between war crimes and war activity that isn’t considered a crime in the context of a war that is premised on a violation of international law in the first place?
Moyn: For background, an illegal war — starting one in violation of international law — is also potentially a war crime. And that’s why the proposal from Gordon Brown, the former U.K. prime minister, for a new Nuremberg is so important, because it’s about that war crime that used to be the most important one.
For obvious reasons, prohibiting war means all the other war crimes are also stopped or prohibited. But the reverse isn’t true: If we allow a lot of illegal wars, and only clean them up by stigmatizing the crimes within them, then think of all the legal activity that we allow. The death of all the soldiers, which is a terrible thing. The death of civilians, collaterally, because you can kill civilians under the law, just not too many. The capital destruction, the opportunity costs, since you could spend the money on something else. The destabilization — think about the consequences the Iraq War had regionally that weren’t intended. I’m of the view that we may have lost focus on what used to be the central war crime, which was aggression. And in a way, the silver lining of Putin’s war is that it’s helping us get that old focus back after years of prettifying illegal wars. Let’s focus on their illegality at the start. Could you talk a little more about the U.S.’s relationship to the International Criminal Court and its own record on war crimes? Sometimes people will try to brush this away as whataboutism. But how can one develop norms if the actors making accusations aren’t upholding the same principles? Moyn: Two wrongs don’t make a right. That is to say, the U.S.’s war crimes don’t make Russia’s war crimes any less immoral. At the same time, that doesn’t mean that one party should get to continue to commit the wrong without any consequence while the other party gets hauled into court. And that’s true domestically, too. We don’t want a legal system that punishes the relatively weaker and lets the strong off scot-free. Now on the topic of the International Criminal Court, it’s such a fascinating history. And what’s so fascinating about Nuremberg is that charging aggression was a Soviet idea. And the United States backed it fully. But, later, in the 1990s, when the International Criminal Court gets founded, it’s very significant that the crime of aggression was left out. Even so, the United States steered clear of involvement. Sometimes that weakened, under Democratic presidents, but it was never a remote possibility that the United States would ratify the Rome Statute [the treaty that established the International Criminal Court]. And of course, it still hasn’t. However, it’s very interesting that over the course of the life of the International Criminal Court, it’s sometimes proved very useful for the United States. And in particular, since the ICC can get cases from [United Nations] Security Council referrals, the United States was very happy to refer cases to it, when it wasn’t the United States’ friends doing the outrageous things. Now, more recently, there was the possibility that the International Criminal Court might take up war crimes on Afghan territory. And this caused a freakout in Washington, because it hypothetically meant that the International Criminal Court could indict Americans. And so that caused another turn in this long, tempestuous relationship. This situation is interesting, because the ICC can take up the matter — not through the U.N. Security Council, which Russia would block [because it has veto power on the Security Council] — but because Ukraine has declared that the ICC can exercise one-time jurisdiction within its borders, something the Rome Statute allows. The International Criminal Court is a deeply political institution. And it’s deeply bound up with geopolitics. And what that means is that hypocrisy is a big part of how states relate to the justice it represents. Do you see any possibility of the U.S. joining the ICC, and wouldn’t that be a prerequisite for developing robust international norms regarding what constitutes war crimes? Moyn: No — this will not happen anytime soon. But that doesn’t mean the situation is hopeless. The United Nations Charter would have to be revised for great powers to be called out within the Security Council — since as of now they have a veto power there. Some have called for the General Assembly to be able to refer cases of aggressive war to the ICC, or create new courts, the way the Security Council did in response to war crimes in the 1990s in Rwanda and the former Yugoslavia. Either way, we’re really looking at the Global South, and other like-minded actors, insisting that a system of global justice should cover the transgressions of all great powers, not just weaker states — or more powerful states that everyone already gangs up against. We should return to what the Americans and Russians once agreed about — which is that aggression is the crime of crimes. Some might consider such moves impossible. But we wouldn’t have a United Nations in the first place if we didn’t think we could organize peace in the aftermath of a great-power war. So why not think of an even better system than we have? It is worth adding that the more states that ratify the Rome Statute, the easier it is to hold great powers to account for war crimes (outside of the crime of illegal war). This is because the court can exercise jurisdiction when war crimes take place on the territory of states that have ratified the treaty or, as in Ukraine today, invited the attention for a time — even if the perpetrators are from a state that hasn’t ratified. That is why the Afghan situation and the Ukrainian situation have proved troublesome for great powers, because great powers can’t easily control the court if states where they’re fighting have joined it. Any final thoughts on parts of the war crimes narrative you think might be being overlooked or misunderstood? Moyn: Between the Vietnam War and the present, in elite spaces across the Atlantic, it came to seem like war was sometimes even progressive, even when it was illegal. And that’s why there was such, I think, a lopsided emphasis on cleaning up the results of wars, making sure that we complied with rules to forbid atrocity. Putin’s blatant act gives us a chance to revisit that calculus, and maybe we should return to what the Americans and Russians once agreed about — which is that aggression is the crime of crimes, the ultimate gateway crime.
Zeeshan Aleem is a writer and editor for MS NOW. 
