What Does "Never Again" Mean Now?
I have been a bit under the weather this weekend, so I will be briefer than usual. But I felt it was important to not delay in noting the massacre in Bucha, Ukraine, provide some background on the International Criminal Court, and underline the need for action in response to these abhorrent war crimes. The issue of accountability continues to be front and center, not only in confronting criminality among the powerful in America, but in addressing the crimes being perpetrated by Vladimir Putin’s troops in Ukraine.
People around the world learned Sunday about the terrible atrocities in newly liberated Bucha, a suburb northwest of the capital, Kyiv. This included dozens and dozens of civilians shot at point-blank range, and the discovery of corpses with their wrists bound and shot in the head. A coroner from Bucha returned to collect more than 100 bodies and put them in mass graves. As the New York Times noted, “On Sunday, Ukrainians were still finding the dead in yards and on the roads amid mounting evidence that civilians had been killed purposely and indiscriminately.”
The sickening photographs and video of bodies strewn in streets and wearing civilian clothes made clear these were not one-off incidents. Ukraine’s foreign minister, Dmytro Kuleba, urged the International Criminal Court to send investigators to collect evidence of the Russian war crimes against civilians—crimes which the Russians have quickly dismissed as “staged.” As columnist Max Boot noted in The Washington Post, “The atrocities in Bucha were no aberration. There is ample evidence of other war crimes by Russian troops across Ukraine. Human Rights Watch has documented Russian troops committing rape, summary execution and looting.”
The latest revelations from Bucha intensified the public outrage. Ukraine President Volodomyr Zelensky called it “genocide” on CBS News' Face the Nation, adding, “We are being destroyed and exterminated, and this is happening in the Europe of the 21st century.” He was not alone, as The New York Times reported:
“The Russian authorities will have to answer for these crimes,” said France’s president, Emmanuel Macron. Poland’s prime minister, Mateusz Morawiecki, called the actions of the Russian army in Bucha and other towns around Kyiv “acts of genocide.” And António Guterres, the United Nations secretary general, expressing “shock” over the images of dead civilians, said: “It is essential that an independent investigation leads to effective accountability.”
The International Criminal Court (ICC), based in the Hague in the Netherlands, with a staff of over 900 people from 100 countries, is responsible for trying individuals for “genocide, war crimes, crimes against humanity and aggression.” It is seen as a court of last resort, not superseding national courts, and describes itself as taking part in “a global fight to end impunity,” and to “hold those responsible accountable for their crimes and to help prevent these crimes from happening again.”
Adopted in 1998 and put in force in 2002, the Rome Statute grants the ICC jurisdiction over four crimes. I think it’s worth detailing how these crimes are defined—and the system in which the Russian crimes in Ukraine can be addressed.
First is the crime of genocide, which the ICC explains is:
“characterized by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.”
Second which the ICC can prosecute are crimes against humanity, characterized as:
“serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offenses such as murder, rape, imprisonment, enforced disappearances, enslavement—particularly of women and children, sexual slavery, torture, apartheid and deportation.”
Third are war crimes, which are:
“grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.”
Lastly is the crime of aggression, which is defined as “the use of armed force by a State against the sovereignty, integrity or independence of another State.”
Before ICC prosecutors can investigate any case, they must conduct a preliminary examination to ensure there is “sufficient evidence, jurisdiction, gravity, complementarity, and the interests of justice.” They also must collect and disclose both “incriminating and exonerating evidence,” and treat defendants as innocent until proven guilty.
Despite the current outrage, which includes calls for additional sanctions against Russia, it’s useful to know that of the thousands of potential cases that could have been investigated and come to trial, only 44 people have been indicted and only 45 cases have led to ICC trial. Of those, only 14 have resulted in a full proceeding, leading to only nine convictions.
After WWII and the Holocaust, talk of “Never Again” became commonplace. Popularized in America by the Jewish Defense League, these two words became a powerful rallying cry for people struggling with the sense of profound injustice and the determination for humans to prove they are capable of standing up to such horrors. They wanted the world to know that they had learned a lesson, one in which crimes against humanity and genocide would not be permitted to repeat themselves.
But here we are. While leaders from around the world express outrage and everyone who sees the images can recognize the extreme inhumanity, there remains doubt whether the NATO-led West can risk entering Ukraine and the launching of WWIII. Will Russia, as a result, continue to get away with impunity for the indiscriminate murder of civilians? Will these crimes lead to real justice in the International Criminal Court? Sadly, it’s hard to be optimistic that justice will be served.
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Sorry to hear you've been under the weather, Steven. I share your pessimism regarding holding to account those who commit war crimes. It is clear that the World Court must investigate Russia's atrocities in Ukraine. But I have no confidence that such an investigation will in fact produce charges or trials. It seems that this venerable and necessary international institution becomes so bogged down in its painfully slow process that its momentum completely disappears and years later, nothing has happened, no one has been charged much less tried. I respect the World Court in principle and see its role as necessary, but have no faith its process will amount to accountability. Besides, those horrible human beings who are capable of committing the kinds of atrocities we are seeing in Ukraine and elsewhere are not dissuaded by the threat of consequences. It is a sad commentary on humankind's capacity for sadism and destruction. The thin veneer of civilization is all-too easily shredded.
Tony Blanken, Mr. Gov't Speak, refused to call it genocide, responding only, and with the allusion of sincerity, "look, the United States is going to evaluate everything that happens." "Going to?" He couldn't say "Has and concluded that . . . " Whose feathers does he not want to ruffle?