Russia's Invulnerability from Ukraine War Crimes Prosecution, and a Delighted Joe Biden, Democratic Party, and United States Defense Industry

​Ukraine and its allies have used the terms war crime, genocide, and crimes against humanity since the Russian invasion in February 2022.  Media reports substantiate credible allegations of horrific acts against civilians, and many of such appear within some of the international law’s definitions of crimes.  Unfortunately, international law has no obvious way to penalize Vladimir Putin or his designees aside from limiting their international travel.  Such prosecutions are an international relations matter and not a criminal prosecution.  The beneficiaries of Putin’s misguided invasion appear to be Joe Biden, the Democratic Party, and the United States defense industry.

Nazi Defendants at the Nuremberg Trials

The international community set up a series of one-time courts to address war crimes after World War II.  These include the Nuremberg trials to prosecute Nazi war criminals between 1945 and 1949.  Later it established the tribunal that investigated war crimes during the break-up of Yugoslavia and the International Criminal Tribunal for Rwanda to address those responsible for the genocide in Rwanda.

There is overriding international governance of war crimes.  The Geneva Conventions of 1949 established the core principles of international humanitarian laws.  The Rome Statute, following in 1998, established the International Criminal Court (ICC).  These agreements protect civilians and prisoners of war, and the wounded. Attacks must be intentional or reckless to meet the definition of a war crime.  Simply bombing a train station, hospital, or theater used for civilians does not meet the requirements, provided the act was an accident. 

The International Court of Justice (ICJ) has jurisdiction over disputes between countries; however, it has no mandate to prosecute individuals. Ukraine has begun a case against Russia in the ICJ.  If the ICJ rules against Russia, the UN Security Council (UNSC) would be responsible for enforcement.  Still, Russia, one of the council's five permanent members, could veto any proposal to sanction it.  While examining this case might benefit Ukraine by helping international support, prosecution appears impossible.

The International Criminal Court (ICC) rules over four types of crime: war crimes, crimes against humanity, genocide, and the crime of aggression. The court has 123 member states, but neither Russia nor Ukraine is a party.  The United States also does not participate nor endorse the ICC.  Aside from diplomatic pressure on allies to press prosecutions against Russia, the United States has little leverage and no grounds to push prosecution.
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The Russian invasion of Ukraine seems like a clear act of aggression by Russia against Ukraine.  However, there is a catch to this, as the crime of aggression has a particular requirement.  When the ICC amended its statutes to include the crime of aggression, the United States, Russia, and China lobbied to protect citizens of countries not a signatory to the ICC from prosecution.  The United Nations Security Council can circumvent to refer the prosecution to the ICC with a vote.  Russia has one of the five seats on the Security Council and can and certainly would veto it.
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The ICC can only prosecute this crime if one member state commits an act of aggression against another. Unfortunately, neither Russia nor Ukraine is a member, so the ICC will never prosecute Russia for the crime of aggression.  Instead, the ICC will focus on war crimes and crimes against humanity.

ICC Prosecutor Karim Kahn

The ICC opened a war crimes investigation against Russia based on a request from 39 member countries. Investigators will look at allegations dating back to Russia's annexation of Crimea from Ukraine.  If prosecutors conclude they have sufficient evidence for a trial, the ICC will issue arrest warrants for arrest.  The ICC relies on individual states to arrest suspects.
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There will be no trial of Putin or any other Russians at the ICC of Putin unless they appear in the courtroom.  However, an ICC formal accusation of Putin with an international warrant for his arrest would make Putin’s overseas travel problematic and damage his credibility and Russia’s reputation.  

The Armenian Genocide Memorial Complex in Yerevan, Armenia

A more elevated discussion of this topic might be a discussion of when war is a crime?  Wars such as the Civil War waged over the fate of about four million enslaved people.  World War II seemed necessary and morally defensible to stop the Nazi warfare and genocide machine. 
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However, many genocidal regimes have ruled unchallenged.  For example, Turkey exterminated about 1.5 million Armenians in the first genocide of the 20th century waged between 1915 and 1923.  The Stalinist USSR government murdered as many as 8 million Ukrainians in a state-induced famine in the early 1930s in the Holodomor genocide.  In Cambodia, the Khmer Rouge regime killed as many as two million people between 1975 and 1979.  The list of state-administered murders of their citizens seems endless, and genocide seems more of an innate human trait than a rare occurrence.  

Soviet Tank in Afghanistan in 1989

State interventions and the toppling of sovereign governments seem a grayer ethical zone.  The United States' invasion and installation of puppet regimes in Iraq and Afghanistan after 9/11 seems a clear political and economic venture rather than a national security exercise.  Both seem a direct corollary to the Soviet invasion in 1979 and occupation of Afghanistan until 1989.  Similarly, both were futile exercises regardless of massive costs and never achieved their stated goals.
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Aside from being brutalist and unprovoked, the Russian intervention in Ukraine seems remarkably uninformed and self-destructive.  Ukraine is the second largest country in Europe and has strong defense ties to the United States.  Moreover, the invasion instantly alienated Russia from trade partners necessary for economic and technological development.  Russia’s primary asset, fossil fuels, is becoming increasingly irrelevant in a decarbonized world, and the growth of wealth inside Russia will be necessary to maintain any standard of living.  Long-term, this isolation poses an existential threat to Russia.

German Soldier

Russia’s invasion also prompted NATO countries to increase military deployments in bordering countries, frustrating Russia’s stated desire to decrease those pressures.  Germany announced a plan to beef up the German military, pledging about $113 billion for a one-time modernization of its armed forces, and confirmed its commitment to reach the 2% of gross domestic product spending on defense.  Germany, of course, remains in Russian cultural memory as an immense military threat due to World Wars I and II.

Russia’s invasion also showed how ineffectual the Russian military is, with outdated equipment, poor planning and strategy, poorly trained soldiers, and unmotivated personnel.  The Russian military budget of about $62 billion, smaller than India’s, did not buy them a seat at the table of world powers.

Regardless of those factors, success in invasion and supplanting sovereign governments is problematic, and there are no excellent precedents in recent history for success.  Russia’s failure in Afghanistan helped topple the former Soviet Union. 
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Absent a diplomatic solution Russia appears bound to be bogged down in a long-term proxy war in Ukraine, costing it many lives and lots of money.  The Biden Administration and a Congress bought and paid for by the defense industry will be delighted to continue to fund Ukraine with no risk in the United States.  

Joe Biden Supporting the Troops in Poland

​Joe Biden and the Democrats are no doubt delighted with the domestic political ramifications of the Russian invasion.  Facing an uphill battle to hold onto each house of Congress, the invasion is like found money.  Biden can use arch-nemesis Donald Trump's historical fawning admiration of Putin against him and Republican opponents in mid-term elections.  In addition, the Biden Administration just presented its record defense budget to Congress, and it will bloat even higher as representatives will be eager to add to it to show how they are strong on defense.  Given Biden’s adept management of the situation, it appears this will be a significant asset in the upcoming elections, both in the 2022 mid-terms and the 2024 presidential election.