War is always a crime against humanity. Anyone who causes it to break out while being in a position of command – not compelled to such abuse of their power by military discipline or force – must be considered a war criminal.
Such a person shares responsibility for the horrors perpetrated and the devastating effects of the violence of war. The only “just” war is a war of resistance against an invader or tyrant: a war of defense against the aggression of others that is a prerogative of every individual, every community whose dignity is stripped away as they are deprived of their territories, their freedom of self-determination, their individual lives and their lives in common. It is a right of resistance that belongs to every people wherever they might live and applies against any invader or despot.
In the modern age, to enforce these principles of natural law, various types of international tribunals have been established, some aimed at condemning crimes committed in particular conflicts or by states (from the Ad Hoc Tribunals established by the UN to the International Court of Justice), others at prosecuting the guilt of individuals (from Nuremberg and Tokyo to the International Criminal Court, ICC). Obviously, there is great merit in these institutions seeking to make the higher value of justice prevail in cases where the greatest offense is caused to all humanity. However, it cannot be denied that these tribunals operate under conditions in which their verdicts hardly succeed in attaining a universal character. Indeed, there is a recurring accusation that they only deliver a “justice of the victors,” a “justice made to order” that is applied to the defeated, or in other words to the enemies of the West, while certain powers evade the jurisdiction of such tribunals and continue to claim impunity for their own wars of aggression, with the pretext of carrying them out in the name of humanity.
In this context, it cannot be denied that Putin is liable for prosecution for crimes against humanity. It is necessary to add, however, that there should also be no qualms in condemning the violence perpetrated anywhere in the world, in any scenario of war or domination over colonized populations. That is, if one is committed to consistently prosecuting all crimes against humanity, in every part of the globe and no matter who committed them. The fact that Putin unleashed the war legitimizes the ICC to investigate his actions; however, there are other, more delicate questions to be asked of it. This is about questioning not so much what it has done, but what it doesn’t choose to do, and the manner in which it operates.
The action it has taken now makes its inaction in other scenarios even more intolerable, where crimes committed against humanity are well-known but whose perpetrators are to be found among the political leaders of Western powers. Universal human rights can have neither geographical nor ideological boundaries. Indeed, the Ukrainian affair itself demonstrates that the jurisdiction of the ICC is “boundless,” operating also in the territories of, and calling to order, states that have not signed the 1998 Convention (Ukraine and Russia) and with the support and investigative aid of countries that don’t recognize the legitimacy of the Hague tribunal (the U.S.). This is why the imbalance in its exercise of prosecution, which is done only on those occasions evidently considered to be of greater gravity, whatever justifications might be given, while it doesn’t in itself call into question the “legality” of its work, it certainly affects – recalling the theories of Carl Schmitt – its more profound “legitimacy,” as they invalidate the perception of the Court’s impartiality.
The other issue that raises questions concerns the manner in which the prosecution is being conducted. One must take into account that the ICC – not working under an obligation similar to that which our Constitution imposes on prosecutors to prosecute crimes, under the pressure of the statute of limitations – is responsible for the “timing” of its investigations, which it can change at will. One cannot then refrain from asking why it decided to issue the arrest warrant for Putin at this time.
There are two reasons why the timing is puzzling. First, because of a procedural issue. As is well known, the horrendous crime of deportation to Russia of Ukrainian children that Putin is now accused of is only the first in a long series that the prosecutor is investigating and which will probably lead in the near future to other indictments on even more heinous charges, that of genocide in particular. Why not wait until the investigation is complete? Why take an action that seems to be an unnecessary acceleration? And there is another strong argument to the effect that the investigation should have been completed first: this would have made it possible to wait until the end of the armed conflict before beginning the criminal proceedings, something that would at least serve to reduce unfounded suspicions of a lack of impartiality. This has been the procedure in all cases of war crimes trials conducted by international tribunals.
One could raise the possible objection that it is not the Court’s place to make any kind of political or diplomatic assessment of the situation (according to the blunt dictum, fiat iustitia, pereat mundus), but, for all intents and purposes, it must also be taken into account that a necessary condition for being able to exercise justice is to remain impartial to the ongoing conflict. This means waiting for the end of the war in order to pursue peace through justice, without getting involved, even unwittingly, on the side of either the prospective future accused or accusers.
In the absence of such principled stances, one can only come to an inevitable and bitter conclusion. That is, one will have to admit that the international tribunal, which operates on behalf of as many as 123 states and in which so many have put their hopes to make justice prevail over the barbaric force that commits massacres, cannot, unfortunately, be considered an expression of a legal globalism that is a manifestation of the principles of universal justice, but rather fits the pattern of “justice made to order.” This is a disaster for international law and an obstacle to peace.