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Opinion How to bring Putin and his henchmen to justice

Russian President Vladimir Putin in Moscow on March 18, 2018. (Alexander Zemlianichenko/AP Photo)

The blood-spattered tableau of Russian atrocities in Ukraine has rightly inspired demands for accountability and justice, not least from President Biden, who has called Vladimir Putin a “war criminal” and said Russian forces have committed “genocide.” Moscow’s troops are surely guilty of war crimes and should be held to account. A tougher question is how to mete out justice to Mr. Putin and his top ministers, generals and oligarch financiers — those principally responsible for launching an illegal war against a sovereign nation.

Ukraine, key Western nations as well as the International Criminal Court have gathered reams of incriminating data that can and should be used as evidence to prosecute Russian commanders in Ukraine for particular war crimes. But it would be a travesty to haul those officers into the dock while turning a blind eye to the culprits in the Kremlin who unleashed the most horrific bloodbath in Europe since the wars in the former Yugoslavia 30 years ago.

It would be naive to think the Russian president or his most senior functionaries are likely to appear as defendants in a court of law anytime soon. Yet it would also be unconscionable to fail to establish a formal mechanism to hold them personally to account for the crime of waging a war of aggression. In this case, a new, purpose-built tribunal is required, because the International Criminal Court in The Hague lacks jurisdiction to get at the war’s true authors.

Diplomats from key countries, including the United States, have lately warmed to the idea, partly at the urging of Ukrainian President Volodymyr Zelensky. Former British prime minister Gordon Brown has pushed for it aggressively; and both France and the president of the European Commission, Ursula von der Leyen, have endorsed it outright. At the United Nations, a draft resolution is circulating that would lend support to establishing such a tribunal. Ukraine and its Western allies need to do more to make it a reality.

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There is ample legal precedent for such a court: the war crimes tribunals that tried top German and Japanese officials in the aftermath of World War II. In Nuremberg, the main charge against some of the most notorious Nazis was “crimes against peace,” now known as the crime of aggression. That charge would go beyond the conduct of the war in Ukraine — the long list of documented murders, rapes, torture and bombardment of civilian targets to which prosecutors would be hard-pressed to tie Mr. Putin and his entourage directly. It focuses on the most profound guilt of all: the fact that the war was fought in the first place.

As the Nuremberg court concluded, “To initiate a war of aggression … is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

One advantage would be the relative ease of indicting top Russian leaders for a war of aggression, compared with the notorious complexity, duration and cost of prosecuting specific war crimes or crimes against humanity, including genocide. A tribunal would also provide a forum to accord justice to victims with little other chance of redress — citizens impelled to fight and die in an unjust war; civilians forced to flee their homes and country; innocents killed or injured as “collateral damage” in attacks not generally prosecutable as war crimes.

As important, the tribunal could puncture the presumption of impunity in Mr. Putin’s inner circle — as well as in Belarus, which served Russia as a staging area for launching the invasion — and plant doubts among Kremlin insiders that the civilized world will ever forget the outrage perpetrated in their names. Some oligarchs, faced with legal condemnation, might blanch at the prospect of being unable ever to travel to the West.

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Opinion writers on the war in Ukraine
Post Opinions provides commentary on the war in Ukraine from columnists with expertise in foreign policy, voices on the ground in Ukraine and more.
Columnist David Ignatius covers foreign affairs. His columns have broken news on new developments around the war. He also answers questions from readers. Sign up to follow him.
Iuliia Mendel, a former press secretary for Ukrainian President Volodymyr Zelensky, writes guest opinions from inside Ukraine. She has written about trauma, Ukraine’s “women warriors” and what it’s like for her fiance to go off to war.
Columnist Fareed Zakaria covers foreign affairs. His columns have reviewed the West’s strategy in Ukraine. Sign up to follow him.
Columnist Josh Rogin covers foreign policy and national security. His columns have explored the geopolitical ramifications of Russian President Vladimir Putin’s war in Ukraine. Sign up to follow him.
Columnist Max Boot covers national security. His columns have encouraged the West to continue its support for Ukraine’s resistance. Sign up to follow him.

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Serious questions remain before the court can become reality, including whether it would be a truly international tribunal, sanctioned by the United Nations — preferable, if the General Assembly would vote to give it real teeth — or a hybrid based on Ukrainian law and bolstered by European or other outside prosecutors and investigators. In either case, the court would be well-situated in the Netherlands, which has offered to host it. The court’s sponsors would also need to determine whether Mr. Putin and his cronies could be tried in absentia — not an ideal option, but one that could begin immediately and still pack a symbolic punch. And lawyers would wrangle over whether the Russian leader and a few other Russian officials are immune from prosecution under international law.

Seen from today’s vantage point, chances seem remote that Mr. Putin or his henchmen can be held meaningfully to account. Prosecutions seemed similarly remote in previous instances — during World War II, and as fighting raged in the former Yugoslavia and elsewhere — before, at last, they became reality with the establishment of tribunals to do the job. Without a court empowered to try Russia’s top leaders for a war of aggression, justice for them will remain a chimera. With such a tribunal, it at least becomes possible.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).

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