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

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

That was before horrible pictures showing dead civilians left on a street in Bucha.

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

“We have to get all the details so this can be an actual — have a war crime trial,” Biden told reporters in Washington. “This guy is brutal and what’s happening in Bucha is outrageous and everyone’s seen it.”

Putin is also the key to ending violence

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

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

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

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

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

Creating a ‘mechanism for justice’

In separate remarks Sunday, Zelensky said he is also looking for a new “mechanism of justice” to investigate crimes committed by Russian soldiers in Ukrainian territory.

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

Officials with the European Union, which Ukraine also wants to join, have said they have established a joint investigation team with Ukraine to an alleged Russian probe war crimes.
All of this is alongside efforts by the International Criminal Court, which has launched its own investigation into Russia’s activities in Ukraine.

Putin’s protection

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

In every previous instance, “to prosecute someone you actually 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 was the case with both Nazi and Japanese leaders after World War II, and with the Bosnian, Serbian and Rwandan leaders of the 1990s.

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

Getting past immunity for world leaders

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

I asked a former ICC official, James Goldston, who is now the executive director of the Open Society Justice Initiative, if 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 along a passage from the Rome Statute — it “shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government” — and said the International Criminal Court could use it to justify a case against Putin.

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

Multiple ideas have been suggested: A state could try to hold 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 at Russia’s and Putin’s actions.

Moving up the chain of command

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

Here’s a passage from Goldston’s email to me:

There are many persons who are responsible for the crimes now being committed in Ukraine. Often international criminal investigations begin with the “crime base” — authenticated images, witness testimonies and other evidence concerning killings, torture, rape or other offenses which may constitute war crimes or crimes against humanity — and proceed upward along a chain of military or political authority to demonstrate the culpability of those who ordered, or who knew of but failed to prevent/punish, the commission of such crimes.

Negotiating with ‘bloody hands’

Accountability for Russians’ alleged actions in Ukraine is one thing — and stopping the war right now is another.

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

“On the other hand, ending civil conflicts requires negotiating with people with bloody hands,” Rodman told me, pointing to negotiations the US and others undertook with the 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’s a photo of Bill Clinton celebrating the Dayton Peace Agreement behind Milosevic. Milosevic later died in jail while awaiting trial as a criminal war, 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.

“The lessons of past conflicts overwhelmingly suggest that no peace will be sustainable if founded on impunity for those most criminally responsible,” he said.


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