Punish Putin for past and present crimes

For decades, the idea of holding the Russian state accountable for atrocity crimes in a court of law was unthinkable. 

The country’s status as a permanent member of the United Nations Security Council, as well as its refusal to join the International Criminal Court (ICC), have allowed those Russians responsible for war crimes and crimes against humanity—against Chechens, Georgians, and Syrians—to escape prosecution. Moscow has also benefited from a lack of political will from other states worried about disturbing the global world order.

But that status quo of impunity has dramatically changed since Russian President Vladimir Putin invaded Ukraine on February 24. In just the first two weeks of his murderous campaign, the UN Human Rights Council and the ICC announced they would open an inquiry and an official investigation, respectively, into alleged atrocities committed as his armies pounded civilian infrastructure and residences in cities like Kharkiv and Mariupol.

But justice will remain incomplete if these inquiries don’t connect the dots with Putin’s crimes in Chechnya, Syria, and elsewhere. If he had been stopped after Grozny, would he have unleashed brutal force in Aleppo? And had the world collectively held Putin accountable for his military’s abuses in Syria, would he have felt emboldened enough to bomb Ukrainian cities?

At this early stage, there are already promising signs that the international community will pursue the full spectrum of Russian state responsibility for previous atrocity crimes as the horror in Ukraine continues to unfold. For instance, the ICC’s top prosecutor, Karim Khan, announced that he’s seeking arrest warrants against three people—including two Russian nationals—for their crimes against ethnic Georgian civilians committed during Russia’s 2008 invasion. 

But this is not enough. It’s vital that Putin and other Russian decision makers are held accountable for all their abuses, and that the international community avoid a “hierarchy” of victims, where violations against Ukrainians are punished but identical violations against Syrians are not. Selective justice can discredit international law as a whole. 

Tracing tragic steps… 

The ICC’s investigation was opened just a few days into Russia’s latest invasion of Ukraine. Lithuania and thirty-eight other ICC member states issued referrals in support—the largest such collective action in the court’s history—allowing the prosecutor to skip a procedural step and move straight toward starting the investigation. It’s a resounding mandate to look into crimes committed by nationals of a global power. And while neither Russia nor Ukraine are ICC member states, Ukraine lodged a declaration accepting the court’s jurisdiction with respect to crimes committed on its territory since February 20, 2014. That means Russian nationals waging war in Ukraine are fair game for prosecution.

If the profiles of early Russian participants in the Ukraine invasion are any indication, there is a good chance that suspects investigated by the court will include those who also bear criminal responsibility for Moscow’s years-long military campaign in Syria. That’s because more information might come to light—from the identities of Russian commanders who bombed Syrian and Ukrainian schools and hospitals, to the weapons manufacturers behind the cluster bombs used to indiscriminately target civilians in both Kharkiv and Idlib. It’s important to account for these overlaps in investigations of alleged perpetrators as part of a coordinated justice approach. 

Due to a mix of jurisdictional and political factors, including the fact that Syria is not a member of the ICC and Russia holds a veto on the UN Security Council, there is currently no investigation on Syria presently open at the ICC. But several pending requests to the prosecutor to open a preliminary examination for crimes committed against Syrian civilians who fled to Jordan are based on a narrow jurisdictional theory: that crimes against humanity of deportation, persecution, and other inhumane acts were partially completed in the territory of Jordan, an ICC member state. Therefore, it falls within the jurisdiction of the court. 

If the prosecutor moves forward with a preliminary examination, and eventually an investigation, on this limited category of crimes, it will be necessary to ensure that information about alleged Russian perpetrators is shared across probes into different countries. 

…and connecting the dots.

While overlaps between criminal activity and perpetrators across country-specific investigations may have arisen at the court in the past, no accused individuals have actually faced charges in multiple situations (although nothing explicitly prohibits the ICC prosecutor from doing so).

Here’s how something like that could hypothetically work: If an investigation were opened into crimes related to the Syrian conflict, investigators might find that some of the alleged suspects have also committed crimes in Ukraine. Or vice versa: As investigators sift through open-source information related to war crimes committed in Ukraine, they might discover that Russian military units responsible for attacks in Mariupol also bear responsibility for intentionally targeting civilians in Daraa in 2018, for instance. 

But the ICC prosecutor would need to ensure that this information is shared across the two files. That’s because different investigative teams assigned to different files may not have access to each other’s evidence, thanks to security protocols and the desire to limit access to confidential information. 

Identifying the potential for such overlap early—and sharing information effectively—could allow prosecutors to explore an indictment (called a “confirmation of charges” in ICC parlance) that would contain charges in multiple country-specific investigations.

This approach would also be relevant to the German federal prosecutor’s newly opened structural investigation on Ukraine—a broad preliminary investigation that catalogues crimes that have happened in a specific country or situation and identifies the structures behind them (such a military chain of command). German prosecutors have pursued structural investigations on Syria since 2011, which have resulted in several indictments and trials, but none against Russian perpetrators. Coordination between the structural investigations on Ukraine and Syria could help ensure that Russian perpetrators of atrocities in both nations face the full force of justice. 

How the long arm of American law can help

Despite not being a member of the court, the United States can always cooperate with an ICC investigation. But its own criminal tools should also be sharpened to allow for war crimes prosecutions.  

Given the current combative mood of American lawmakers to address Putin’s crimes with legal action, some quick fixes to the US federal war crimes statute could also provide a way to hold Russian perpetrators accountable for crimes in Ukraine, Syria, and beyond.

Currently, the statute limits jurisdiction to war crimes committed by or against a US national. This means that if a Russian military commander whose troops murdered, plundered, and displaced civilians in Ukraine and Syria decides to visit the United States, prosecutors cannot charge the commander with war crimes if no US nationals were killed in the violence.

But this can be addressed through legislation that tweaks the statute to allow for war crimes charges against an alleged perpetrator who happens to be present in the United States, regardless of nationality. The passage of a crimes against humanity statute would also help by allowing flexibility in charging suspects during and after wartime. It would complete the US government’s atrocity prevention and accountability tool box.

Equitable reparations

Meanwhile, countries in North America and Europe are seizing assets of Russian oligarchs and offering ambitious proposals to repurpose the funds for Ukraine’s reconstruction. 

Provided any potential legal challenges are overcome—and a sizeable pot of Russian state actor money is available to compensate victims and survivors—it would be fair to apportion part of those funds to pay out valid court judgment awards and other forms of reparations to victims and survivors of Russia’s bombing campaign in Syria.

Some lawyers and finance experts in the United States have even suggested that Russia be added to the US State Department’s list of state sponsors of terrorism, in the company of Iran, Cuba, North Korea, and Syria. If that becomes a reality, it will be important to introduce fixes to the US legal regime that allow for Ukrainian and Syrian refugees who naturalized or obtained residency in the United States after the occurrence of the alleged acts of terrorism to sue.

None of this would have seemed at all possible until recently. But now, there is a real opportunity to provide accountability and reparations for victims of Russian abuses. While it can be tempting for lawmakers to focus on the present, Putin’s past and ongoing atrocities in Syria and elsewhere provide critical context to current events. This is the moment to tell autocrats around the world that the world remembers each and every one of their crimes—and that getting away with them is no longer possible.

Gissou Nia is the director of the Strategic Litigation Project at the Atlantic Council’s Middle East Programs.

Jomana Qaddour is a resident senior fellow with the Rafik Hariri Center and Middle East Programs, where she leads the Syria portfolio. 

Further reading

Image: The Hotel Ukraine stands destroyed after a Russian air strike on central Chernihiv, Ukraine, on March 12, 2022. Photo by Oleh Holovatenko/REUTERS