The World Is Watching: Diplomatic Exits for Russia after Ukraine

From my perspective, there are several variables affecting the possibility of diplomacy. 

• The first relates to sanctions against Russia, which may not have a decisive impact in the short run, but could have the potential to massively harm Russia's economy and cause long-term damage.
   
• The second is the continued delivery of arms and weapons by NATO countries to Ukraine. The weaponry supplied so far has positively influenced Ukraine’s capacity to resist Russian aggression.
   
• Third, expanded international pressure could prove crucial in diplomatic initiatives. France could play a leading role in this respect given its credibility in the Global South. It could rally opposition to Russia’s armed aggression, particularly in African countries where it has historic connections. All countries are vulnerable to unilateral border changes through the use of force like the one being demanded by Russia in Ukraine. As Kenya recently pointed out in the UN General Assembly, this border vulnerability is especially acute in Africa. In addition, the Russian blockade of Ukrainian ports is having a global impact on grain shipments and is increasing the prospects of near-term famine in African countries.
   
• Ukrainian insurgency in regions under Russian military control could also create a shift. Despite Russia’s superior military capacity, Ukrainians can make the situation ungovernable and increasingly costly to Russia.
   
• Finally, there is the possibility of a Ukrainian military breakthrough. This could offset recent setbacks in the Donetsk region. Ukrainians have demonstrated a remarkable resolve to recapture towns around Kiev and territory they had lost earlier, as well as territory recently taken by Russia around the city of Severodonetsk and other areas that were loosely under Russian control. In addition, with the use of new long-range weapons delivered by the US and other NATO countries, Ukraine is now planning an offensive against the Russian blockade of Odessa and other Ukrainian ports on the Black Sea. 

 
All or some of these variables could ultimately give Putin the incentive to negotiate with Ukraine. The negotiations that could take shape might center around the status of Crimea (which has been under Russia’s de facto control since 2014), the situation in the Donbass region, the question of Ukraine’s NATO membership, the withdrawal of Russian troops, the lifting of sanctions and ultimately, the issue of reparations, given the tremendous loss of life and amount of physical damage that Russian aggression has caused in Ukraine. 

With evidence mounting of Russian war crimes in Ukraine, can Moscow be held to account? Can the Kremlin’s propaganda influence efforts to bring justice?

The question of how to hold Moscow accountable is a key component going forward. 

My experience working on war crimes in the effort to end the conflict in the former Yugoslavia in the 1990s leads me to several conclusions. From a prosecution standpoint, perpetrators of abuses in Ukraine are more likely to be immediately and clearly identified than were perpetrators in the former Yugoslavia. During the time of the former Yugoslavian wars, it was difficult to prove who ordered the war crimes to be committed. In the Ukraine case, there is no question that orders came from the Kremlin. Putin has publicly and explicitly declared he was going to launch the invasion, asserting that Ukraine was not a legitimate country and maintaining NATO was a threat to Russia. 

However, it is worth noting that this entire conflict can be characterized as one major international crime: the crime of aggression. It is crucial to have Putin and Russia’s crime of aggression adjudicated and determined, particularly because this could have an impact on the issue of reparations. The International Criminal Court (ICC) and the International Court of Justice (ICJ) have the jurisdiction and the capacity to act.
 
When it comes to Russian propaganda, disinformation campaigns are more likely to influence the Russians than the international prosecution process. The Kremlin’s propaganda can be dispelled by having the ICC investigate any credible claims and make final determinations. On the other hand, getting the defendants (i.e. Putin or his generals) into court will be much more challenging. Finally, the question of impartiality and fairness is an essential component of international justice. It must be made clear that the investigations are non-political and will consider claims that have been made from both sides, including potential allegations brought forth by Russia of Ukrainian violations of international law. 

Finally, what is the potential impact of the Ukraine investigation on the ICC’s work globally? And on international law?

The near unanimity among nations that participate in international institutions of justice concerning the crime of aggression committed by Russia against Ukraine has greatly strengthened the work and role of the ICC. Forty-three nations around the world, and not only from the West, seeking accountability for atrocities, have come together to spur investigations into abuses and have called upon the court to initiate prosecutions. This is the largest number of nations that has ever been involved in an international justice issue. The ICC is getting support both from member states and non-member states. The United States, a non-member state, for example, has provided prosecutors. 

In the past, the ICC has been criticized for its expensive cost, the slowness of its processes and, for mainly focusing on African countries in its early prosecutions, where there were fewer impediments to prosecution than in more developed countries. African countries have pushed back against the ICC for geopolitical bias, thereby partially damaging its reputation. The Ukraine investigation could open a new chapter for the ICC to respond in an even-handed way. 

Copyright: ARIS MESSINIS / AFP