In an email interview with CNN Opinion, Michael A. Newton, an expert on war crimes, argues that such an investigation is justified due to the attacks on civilians.
He is a professor of the practice of law and professor of the practice of political science at Vanderbilt University. Newton served as the senior adviser to the Ambassador-at-Large for War Crimes Issues in the US State Department from 1999 to 2002. He also helped negotiate the International Criminal Court Elements of Crimes. The views expressed in this commentary are his own.
This interview has been lightly edited for clarity and flow.
Based on that definition, have we seen this already in Ukraine?
What role should the US play in documenting war crimes in Ukraine?
The Ambassador-at-Large for Global Criminal Justice represents an important voice within the State Department and interagency, and Van Schaack’s leadership would help ensure success for the new joint US-EU project documenting war crimes.
Prosecution of Russian leaders, oligarchs and commanders for crimes in Ukraine must be a “whole of the Free World” approach. Brave Ukrainian lawyers are doing their part, and we should support them.
American leadership provides the centripetal force to consolidate documentation efforts and incorporate the rapidly coalescing array of private documentation efforts. Investigations will also provide corroborating evidence to refute Russian propaganda and legal distortions.
What role did you play in the prosecution of Serbian leader Slobodan Milosevic in the 1990s?
I stood at the border of Kosovo with the first Ambassador-at-Large for War Crimes Issues (the previous name for this ambassadorship), David Scheffer, to help document the crimes later charged against Slobodan MiloΕ‘eviΔ.
Unlike the current Office of Global Criminal Justice, we reported directly to the US Secretary of State, and we took the FBI into Kosovo to assist investigations benefiting the Hague Tribunal. These efforts buttressed many cases, in addition to Milosevic’s.
Who would decide if any Russian leader is to be held responsible for war crimes?
The judges of each case assess the legal basis for every charge. Because the Geneva Conventions grant broad criminal jurisdiction to sovereign states, domestic officials may prosecute war criminals found on their territory, too.
How realistic is it that they would be tried in a courtroom?
Russian leaders should feel deep disquiet in the face of a deeply entrenched body of precedents since the Second World War.
Prosecuting those responsible for crimes committed in Ukraine conforms with patterns of international criminal justice that include many defendants who thought that they were above the law.
The presidents, prime ministers, defense officials, military commanders and staff officers who have been brought to book represent a litany of infamy. Defendants included Slobodan MiloΕ‘eviΔ, former Liberian President Charles Taylor, former Iraqi dictator Saddam Hussein, former Rwandan Prime Minister Jean Kambanda, former Rwandan General Augustin Bizimungu — and many others.
What can we learn from other war crimes trials?
These trials are inherently complex. They take more time to investigate and prosecute than victims would like. Proceedings must be based on compilation of evidence and procedural regularity absent overtones of political retribution.
Prosecutors exercise discretion based on actual evidence rather than polemics. Careful lawyering is the key. The sensational nature of charges requires close coordination with civil society and victims’ organizations. The Congress of Vienna, which reorganized Europe after the Napoleonic wars, termed Napoleon Bonaparte “Enemy and Disturber of the tranquility of the World.” Russian leaders are no less deserving of that title, yet political speech will help bring justice only when it is translated into binding legal opinion.
Even if no Russian leaders could be easily convicted, why would it still be worth pursuing charges?
Indeed, coordinated efforts to restore the rule of law are necessary to augment financial sanctions. In the world’s first military treatise, ancient Chinese general, military strategist and philosopher Sun TzΕ wrote that “to fight and conquer in all your battles is not the supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.”
In upholding the law of war, our efforts will reclaim the initiative from the Russian aggressors. We must stand fast in upholding professional military norms and reinforcing the laws and customs of warfare.
Opinion: War crimes expert says Russian invaders are crossing a line