Adam Oler on “International criminal justice is on life support. Can it be saved?”
Today’s guest post is by a favorite Lawfire® contributor and popular LENS conference speaker Adam Oler, who gives us a sober assessment of international justice. He traces its history–and notes the high points–but also offers a very interesting explanation for its current difficulties that you need to read.
The good news? Adam offers us a substantive plan to resuscitate international justice. Here’s Adam’s expert analysis and innovative recommendations:
International Criminal Justice is on life support. Can it be saved?
by Adam Oler
Since the war in Ukraine began nearly seven months ago, much has been written about the legal implications of Russia’s invasion. Some of the world’s top international lawyers regularly analyze important law of war issues across the spectrum of that conflict. The West Point Leiber Institute’s Ukraine Symposium and Human Rights Watch’s Ukraine Country Page are two forums providing excellent analysis of issues as they emerge.
Demands for justice—for the victims and the perpetrators—are ubiquitous, and understandably so. Putin’s attack on Ukraine was a flagrant violation of the UN Charter, and the thousands of war crimes committed by his soldiers are reminiscent of those perpetrated by the Nazis.
International Criminal Justice is the field of law dedicated to investigating and prosecuting those who perpetrate unjust wars or commit law of war violations during a conflict.
Though a relatively new area of practice—it is roughly 80 years old—in recent years international criminal justice practitioners achieved many successes, particularly in the Former Yugoslavia. Understandably, events in Ukraine now dominate the field’s attention.
Unfortunately, overshadowing the calls for justice is a somber, inevitable truth. The likelihood of any accountability for Putin or his lieutenants is woefully dim. The prospects for robust law of war tribunals are no brighter. The return of great power competition shattered the utility of international criminal justice as a substantial tool of accountability.
Despite many successes after the Cold War, the golden age of international criminal law is over. If international criminal justice is to survive, its practitioners will have to adopt a new forum. The court of public opinion must replace the courtroom as their principal arena, a paradigm shift that will be difficult to make.
The Short Life of International Criminal Justice
In July 1947, William Eldred Jackson penned an article for Foreign Affairs entitled “Putting the Nuremberg Law to Work.” Jackson, who accompanied his father Justice Robert Jackson to the great tribunal, formally served as personal assistant to the American Chief Counsel. The younger Jackson’s piece is telling in its hopefulness. In his view, Nuremberg and the fledgling United Nations finally breached the once impenetrable shield of state sovereignty.
Before World War II, a country’s decision to wage aggressive war was not subject to post-bellum prosecution. Post-conflict efforts to hold soldiers accountable for wartime misconduct had to occur at home, and rarely did. The Weimar government attempted to prosecute a handful of Germans in a series of trials that not only backfired, but provided Hitler an early forum for the infamous stab-in-the back myth.
Now, in the aftermath of World War II and all its horrors, not to mention the invention of the atom bomb, Jackson could justifiably conclude the world’s interest in keeping the peace trumped the right of individual states to claim sovereign immunity.
His optimism appeared well placed. The United Nations general assembly adopted the Genocide Convention in 1948, followed eight months later by the Geneva Convention of 1949. The legal system that would carry out the new laws came to be known as international criminal justice, itself a subset of public international law.
Jackson’s early optimism proved ahead of its time. The Cold War’s onset brought a decades-long failure to hold war criminals accountable. While some domestic courts took their personnel to account, nothing like the International Military Tribunals for Germany or the Far East materialized.
The fifty-year accountability gap is reflected in books on international criminal justice, which typically jump from 1949 to 1990 with minimal comment. Among these are Michael Bryant’s “A World History of War Crimes From Antiquity to the Present” and David M. Crowe’s “War Crimes, Genocide, and Justice: A Global History.”
Both are excellent treatises on their topics, but with the exception of the Eichmann trial, neither discuss international criminal accountability during the Cold War because there wasn’t any to speak of.
The end of the Cold War finally offered the opportunity to put the Nuremberg Law to work. The lawyers, investigators, judges, and others who spearheaded the effort advanced the practice of international criminal justice enormously.
Prior to 1989, the field was in the purview of academics, not practitioners. This started to change in the early 1990s. In 1993, all fifteen members of the UN Security Council (UNSC) voted to create the International Criminal Tribunal for the Former Yugoslavia, the ICTY.
A year later, thirteen UNSC members, including Russia, voted to create a similar tribunal for Rwanda. These tribunals, inconceivable just five years earlier, inspired creation of the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and others. Thus began the golden age of international criminal justice, an era in which Nuremberg’s legacy could be fully realized.
Yet, not thirty years later, that age has come to an end. To understand why requires an honest assessment of competing world orders, the resurgence of state sovereignty, and how one views interests in a world of increasing authoritarianism.
The Westphalia Contract Uber Alles?
For the last 350 years, the pair of agreements known as the Treaty of Westphalia have governed Western state relationships. Westphalia was a contract between the various princes of Europe to stop the religiously driven Thirty Years War. To end the strife, rulers pledged to honor as absolute each other’s domestic authority. The treaty thus barred invasions to either rescue co-religionists or convert apostates.
Though not inevitable, the Westphalian principles would eventually dominate the concept of statehood, and still do. And while Westphalia by no means ended interstate wars, the principle of domestic sovereignty and non-intervention became the cornerstones of the Westphalian framework. They remained virtually unchallenged until the mid-Twentieth Century, when Nazi crimes compelled the first meaningful exceptions.
The Rules Based International Order vs. Liberal International Order: A Distinction with a Difference
To understand the demise of international criminal justice, distinctions between the Rules-Based International Order and the Liberal International Order are key. As members of the United Nations, all 193 countries subscribe to the UN Charter and, at least in word if not deed, to its rules of conduct and behavior. The rules-based order affords odious regimes in China and Russia venues to resolve disputes, restrain U.S. power, advocate positions, and legitimizes their hold on power.
Of paramount importance to Xi and Putin, Westphalian principles of sovereignty and non-intervention are the foundation of the UN Charter, and with it, the rules-based order itself.
Like all authoritarian leaders, Xi and Putin’s primary interest is staying in power, and to the extent the rules-based international order prevents external interference, the more their interests are served.
For this reason, Putin and Xi contest the Liberal International Order, the so-called “LIO” led by the United States. Sometimes referred to as liberal internationalism, in the present context the LIO is best thought of as the UN-established rules-based international order, with a distinct emphasis on individual and human rights.
The “L” in LIO incorporates Western notions of “the rule of law,” which build on principles found in the Declaration of Independence, Declaration of the Rights of Man, and in the UN’s aspirational Declaration of Human Rights.
So, while the rules-based order serves Putin and Xi’s interests, the LIO is antithetical to them. Why? Because at the heart of the LIO are principles of democracy and freedom that, if allowed to flourish, threaten their hold on power.
To be certain, Russian and Chinese leaders are convinced Washington will violate the rules-based order when it serves American interests. From Moscow and Beijing’s vantage, the American proclivity to violate principles of sovereignty and non-interference eviscerate the central pillar of the Westphalian system and rules base order built upon it.
They cite NATO military intervention in Kosovo, the invasion of Iraq, the toppling of Muammar Qaddafi, military support for Taiwan, and public condemnation of Beijing’s Uighur Genocide, as proof that American commitment to the Westphalian foundation of international law is situational at best.
Lest there be any doubt about this, Putin said as much at the 2007 Munich Conference, now properly seen as Russia’s declaration of independence from U.S. global leadership. Xi and Putin’s perception may or may not be accurate, but they correctly surmise that Washington has long considered the spread of liberal democracy as advancing America’s interests.
In the U.S., how the LIO should be extended—either by America’s example, inducements, or coercion—is constantly debated. At least until recently, whether it is in U.S. interests has not. Because liberal democracies are hesitant to go to war with each other, the LIO theoretically perpetuates peace, expands U.S. economic opportunity, and ties other countries to American security and value interests.
International Criminal Justice is a pillar of the LIO. However, because it reflects the primacy of an individual’s right to live freely in peace over the despot’s demand for power, Nuremberg and its jurisprudential legacy are particularly antithetical to Putin’s interests. After World War II, exposing the Nazis’ crimes served Stalin’s political agenda.
For the U.S., accepting Stalin’s lieutenants sitting in judgement of Hitler’s served the West’s interests as well. As we have seen, during the Cold War multilateral efforts at accountability stalled. There were some unilateral successes—the Eichmann trial being the best example—but the creation of an international criminal tribunal, let alone a standing international criminal court, was out of the question.
The Uniipolar Moment and the Pinnacle of International Criminal Justice
What changed after the Cold War, such that two international tribunals and the ICC came into being? Put simply, the “unipolar moment” in world history. In the winter of 1990-1991, Charles Krauthammer identified an unprecedented shock to the global balance of power. Between Westphalia and 1945, various countries, mostly European, vied with each other for power.
Whether in terms of land, resources, shipping routes, or prestige, power constantly shifted among the states of Europe. The Vienna Treaty that closed out the Napoleonic era established a balance of power sufficient to spare Europe from general war for a century. By ensuring no country was strong enough to risk war against a coalition of its neighbors, the leaders of Europe spared the continent another major conflict until 1914.
Following the First and Second World Wars, the world moved into a bi-polar era in which the Soviet Union and the U.S. vied for power. While there were some non-aligned states, most of the planet found itself tied to either Washington’s pole, or Moscow’s.
As John Ikenberry has best described it, a “pole” is something like a magnet that attracts (or compels) smaller or weaker states to align with a dominant one. Whether through inducement or coercion, self-interest compels small states to follow their superpower’s lead. As smaller states aligned with the U.S. pole, most adopted the tenets of the LIO. Those countries compelled to remain in Moscow’s orbit did not.
Writing after Saddam Hussein invaded Kuwait, but before the shooting started, Krauthammer identified a fatally wrong assumption made by the Iraqi dictator. Hussein assumed that Moscow would never tolerate a massive U.S. army in the Middle East and would prevent its arrival. It was Saddam’s misfortune that Russian power had so attenuated that it was no longer in Moscow’s interests to block America and its allies.
On the contrary, by 1991 the Russians had a far greater interest in opening to the West, adopting to its economic model, and finding ways to recover from decades of malaise. Given America’s newfound power relative to Russia—and frankly, to everyone else—Washington found itself in the role of global hegemon. With a single superpower in the world, the unipolar moment had arrived.
It was thus America’s global hegemony—its unipolar moment—that allowed International Criminal Justice to come of age. When the U.S. and Britain sought creation of the ICTY, the new Russian Federation joined in, even though its historic allies, the Serbs, were the ones destined for the dock.
The economically prostrate Russians had few options. Furthermore, Moscow’s experimentation with liberal democracy meant its leaders’ support for the ICTY and ICTR were in their political interests as well. Hence their support at the UN.
International Criminal Justice flourished. As a field, it moved from the province of Ph.D.s to attorneys, achieved justice for victims in the Former Yugoslavia, Rwanda and elsewhere, and incentivized tremendous academic work on the law of war.
When measured in terms of multilateral support, the peak of international criminal justice occurred in the spring of 2011, when both China and Russia abstained from UN Security Council 1973, permitting NATO to intervene in Libya for the express purpose of preventing genocide on the Mediterranean Coast.
Two events pinpoint when international criminal justice culminated. The first was the war in Libya, when the approved mission to prevent a mass atrocity morphed into regime change. To the Russians and Chinese, the removal of Qaddafi proved that the supposed humanitarian trappings of the Libyan invasion were little more than subterfuge.
As in Iran, Chile, Grenada, Iraq, and many other places, events in Tripoli reaffirmed for dictators everywhere that the Westphalian, rules-based international order only applied when America wanted it to. For Putin and Xi, they feared being next.
The other high-water mark was creation of the International Criminal Court, the ICC. In his 1947 piece on Nuremberg, Jackson warned that without a standing court to investigate and prosecute war crimes, the tribunal’s achievements could be lost.
Jackson hoped the new International Court of Justice’s (ICJ’s) jurisdiction could be extended beyond state parties to individuals, but offered the establishment of an ICC as a second path. The ICJ’s writ was never expanded.
However, the unipolar moment offered an opportunity to create an ICC, and in 1998 the Rome Statute did just that. As we now know, it did not take long for early opponents of the ICC to be proven right.
The new court soon became highly politicized, spent ungodly amounts of money to attain a handful of convictions, seemed neo-colonial, and never persuaded the U.S., Russia, or China that it was in their interests to come aboard. The end result was a near-fatal discrediting of the ICC, and with it the greatest aspirations of International Criminal Justice.
Saving International Criminal Justice: A New Framework
Early in a judge advocate’s career, the new attorney is shown a Venn diagram that introduces the three components of rules of engagement (ROE). The graphic consists of overlapping circles labeled “law”, “operations”, or “policy”. The intersection is marked “ROE.”
Though basic, a revised diagram could help frame the new approach for stopping war crimes. The law element would remain the same, but “policy” would be replaced by “evidence,” and “effects” would substitute for operations. The intersection would be “the message.”
Using this framework as a point of departure, to implement the new approach at least four practical developments should also occur.
New Lawfare Cells. In the near term, government attorneys who already work alongside law enforcement and public affairs experts should also be partnered with intelligence units. These specialist teams would operate as a cell.
The ability to rapidly identify war crimes, collect sufficient evidence to prove them, and then release the information at an advantageous time, is paramount to achieving effects. The merging of public affairs and intelligence assets for purposes of information warfare was a key lesson learned by the Israelis in 2014 when it fought the first social media war.
Protect the Law. Unlike jury trials or other tribunals, the public must also understand why the law says what it does. The passions wrought by images of dead civilians can easily trump appeals to legal justifications.
Explaining not just what the law says, but the reasons undergirding it, are of paramount importance. This is especially so when international criminal justice practitioners are called upon to defend U.S. and ally actions.
So, even if the law is now in a supporting role, continued mastery of the Law of War is essential for international criminal justice advocates to retain public legitimacy
Re-integrate Senior Attorneys with Public Affairs. The Department of Defense should place a senior judge advocate alongside the chief of public affairs at every combatant command and service headquarters.
Modeled on the since-replaced Air Force Executive Issues Team in the Office of the Secretary of the Air Force, the senior attorney’s mission would be to help advocate against enemy war crimes, participate in interagency messaging efforts, and oversee the new, integrated public affairs and intelligence cells.
Law Schools Have a Role. Though it would take some time to have an impact, law schools should instruct aspiring international criminal justice practitioners through courses on public diplomacy. Seminars on the law of war should not be taught without equal emphasis on the latter.
Though few law professors are familiar with public diplomacy, there is a rich and growing body of work on how this fundamental tool of U.S. power can be wielded. Graduate level LL.M. programs focused on public international law should require this coursework as well.
One Case Study.
Putin and his legions do not fear accountability; it is doubtful they ever did. As a result, the U.S. and its allies should anticipate even worse atrocities than those seen to date.
While no one can predict precisely what Moscow will direct, history suggests several awful prospects. One appears particularly likely. Because it served Soviet interests so effectively after Hitler’s defeat, in the coming months one should expect mass forced depopulation wherever the Russian Army can achieve it.
Moscow’s fifty-year Eastern European occupation and permanent annexation of the East Prussian heartland was, above all, the product of mass expulsions of German and Polish-speaking peoples.
Though largely forgotten outside of Germany, some important scholarship has emerged about the period between 1945 and 1950, when the Soviets forcibly deported 12-15 million human beings. Of these, at least half a million died.
The deportations began with Czech statesman Edvard Beneš’ campaign to remove the Sudetenland Germans, who served as Hitler’s pretext for the 1938 invasion. The Soviets copied the Beneš decrees and exiled Poland’s ethnic German population in its entirety.
Similar to the Czechoslovakians’ agenda, Russia’s goal was to end German irridentist claims in the east once and for all. America effectively endorsed the policy, believing the brutal step appropriate.
Although West Germany did not fully renounce its post-war territorial claims until 1991, the expulsions forever prevented Bonn or Berlin from alleging mistreatment of Germans living beyond the Iron Curtain. Even if they could, there were no Germans left to defend, protect, or support.
As Edward Luttwak might have added in his 1999 Foreign Affairs piece, “Give War a Chance,” Russia’s decisive victory allowed it to restore peace across its western frontier, a peace that long endured. That peace was entirely on its own terms, the product of brutality exceeded in Europe only by the Nazis.
From Moscow’s vantage though, it worked. From Putin’s vantage it warrants emulation, which explains reporting from occupied portions of Ukraine undergoing forced population movements, including the mistreatment of children.
The Russians will engage in other war crimes, but the scale of looming deportations, resettlements, and forced assimilation portends the most likely grave scenario.
If the demise of International Criminal Justice means the Russians need no longer fear accountability under the law, how can the champions of global justice still contest such atrocities? The answer may well be on their smart phones.
What’s to be done? Applying the new paradigm.
With Nuremberg-levels of accountability off the table, other ad hoc tribunals a legal impossibility, and the ICC so discredited as to be a non-factor, to remain effective global justice advocates must move beyond law-focused solutions.
In their place, practitioners at every level should be trained on how best to wield the informational instrument of power. Where information previously supported the pursuit of courtroom justice, the missions have been reversed. The law is now in a supporting role.
How, then, might international criminal justice practitioners help stop the looming displacement of millions of people in Ukraine? Given that Putin and his inner circle are the source of the threat, their interest calculous is the center of gravity.
Affecting that calculous is key. In short, the U.S. should wield its available instruments of power in a way that makes Putin and Company value what we want—an end to deportations—over their inclination to commit these atrocities.
Since the threat of prosecution no longer impacts Putin’s calculous, what might? Unless Putin attacks NATO, there is little impetus for direct Western military intervention. While taking military action could have a positive effect, the potential for nuclear escalation is all too real. Some form of inducement could also be offered—though envisioning one at present is most difficult.
Instead, Washington’s strategic approach should focus on shaping overwhelming global disapprobation of Putin’s forced population movements. It is here that international criminal justice practitioners can still play an important role, even if not the leading one.
Using the revised Venn diagram, in our case study the law would include the Fourth Geneva Convention, the Genocide Convention, and other legal sources. The evidence would include imagery, testimony, and forensics. The effect would be sufficient international and perhaps domestic pressure such that Putin’s interest calculous changes.
The message would be the most important piece, which is why training judge advocates and other practitioners in the fields like public diplomacy is essential. How might this new framework—this new paradigm—best be applied?
The new lawfare cells would be responsible for three elements. First, the intelligence members would collect evidence in the form of witness statements, imagery, and other available sources. Embassy Country Teams would be especially important in this regard.
Next, the assigned attorneys would provide the legal arguments explaining why Russian actions are prohibited. These two elements—intel and legal—would then provide the public affairs officer with the information she needs to complete her mission.
To an extent, this may indeed be happening already. But the cells would possess a new ability to act in real time, with sufficient celerity to wage the information campaign effectively. Through social media, within the news net itself, and via public statements from officials around the world, the inhumanity and illegitimacy of Moscow’s deportation effort could be iteratively exposed and constantly broadcast. The new PA-JA senior team at the Pentagon would coordinate these efforts.
Similarly, attorneys would also help ensure public awareness about the Law of War more generally. Much of the work is being done at places like West Point and other venues, such as Lawfire. However, that work needs to be better publicized if it is to have the sought-after effect. Here again the new leadership team at the Pentagon—or perhaps the NSC—would have an oversight role. Public affairs officials across the interagency, in partnership with the newly created lawfare cells, would carry the load.
Finally, law schools and other public policy graduate programs would need to capture lessons learned and incorporate those into curricula. The nation’s war colleges in particular could leverage these lessons as they prepare senior officers to better address changes in war’s evolving character.
The Future of International Criminal Justice.
Some may insist it is too soon to give up on Nuremberg’s promise of an international court system capable of deterring war crimes and holding perpetrators accountable. They point to successful efforts at accountability after the Cold War as proof what is possible.
Unfortunately, such arguments are unrealistic. Hopes for a globally adopted, liberal international world order proved more aspirational than attainable. The survival interests of authoritarian leaders—particularly in Moscow and Beijing—ended the LIO juggernaut. The golden age of international criminal justice ended with it.
All need not be lost. Provided international criminal justice experts are willing to re-align their efforts, this field of practice can maintain some of its utility. By supporting institutions and actors wielding the informational instrument of power, practitioners can still achieve desired effects.
While broad accountability may not be one of them, preventing and stopping atrocities is still feasible. To prevent further atrocities, international criminal justice practitioners must move to a new arena.
About the Author:
Adam Oler is an associate professor of strategy and department chair at the National War College, National Defense University, in Washington, DC. Professor Oler spent twenty-four years as a judge advocate, serving multiple tours in Europe, Korea, and the Middle East. At the National War College, he instructs on national security design and implementation, the Middle East, and national security law. You can follow him on Twitter at @aonwc11.
Disclaimers:
The views expressed in this paper are those of the author alone and are not an official policy or position of the National Defense University, the Department of Defense or the U.S. Government.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. See also here.
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