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Why International Governance Will Fail Ukraine

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“If there is no alternative and no option, then the next option would be dissolve yourself altogether,” Ukrainian President Volodymyr Zelenskyy told the UN Security Council in early April. Zelenskyy’s blunt comments and clear frustration with the Council’s inaction regarding Russia’s aggression against Ukraine speak to a larger discussion surrounding the flaws of international governance.

Russia’s invasion of Ukraine has seemingly turned the post-Cold War international world order on its head. Within the context of war crimes, the invasion makes evident that international governmental institutions are ineffective at accomplishing the tasks that they were set up to do. In part, this ineffectiveness stems from the structural nature of state sovereignty, which inherently crops up as an issue when forming these international structures. Furthermore, the international legal system is undermined by dominant world powers, principally the United States, which fail to lend the International Criminal Court (ICC) desperately needed legitimacy by putting their full weight behind the institution.

International law requires warring parties to make a distinction between combatants and civilians; however, there are reports that Russia has been indiscriminately killing civilians throughout the ongoing invasion of Ukraine. Evidence of mass graves discovered in Bucha and the bombing of a Mariupol theater are widely viewed by the international community, particularly the West, as war crimes. This conclusion naturally raises the question of what international governance structures could have done to deter these crimes and what mechanisms they will use to hold Russia accountable.

International institutions, namely the ICC, exist with the stated purpose of creating a forum where individuals can be held accountable for war crimes on the global stage. These institutions, though, are unlikely to act effectively in the present-day conflict between Russia and Ukraine. The ICC was established through the passage of the Rome Statute, an international treaty written in 2002, and is supposedly given jurisdiction by the ratifying countries to conduct investigations and prosecute war crimes. Notably, neither Russia nor Ukraine has ratified the Rome Statute. 

The ICC’s track record in holding individuals accountable for war crimes is shaky and does not suggest that Russian President Vladamir Putin will face consequences imposed by the international community for his atrocities. And it is very clear that the threat of being held accountable for war crimes by international institutions did not deter Putin’s decision to invade Ukraine and target civilians initially.

In practice, the ICC has rarely prosecuted victors of power struggles or civil wars. This precedent creates immunity for those in power, such as Putin, to the laws of war. In instances when perpetrators of war crimes are brought to justice (whether at the ICC or other courts), these rulings are almost always against those on the losing side, such as postwar Germany, American-occupied Iraq, Rwanda, the Ivory Coast, or Sierra Leone. Additionally, the ICC in particular appears to have a geographical bias: All of the individuals that have been indicted by the court hail from Africa.

There are certain barriers that prevent international institutions, as they are currently constructed, from effectively investigating and prosecuting members of sitting governments. For one, it may be nearly impossible to collect evidence in territory controlled by the government violating the law, and the burden of proof is exceptionally high for war crime cases. Sitting governments are also able to block ICC investigators from entering their territories, as Russia’s did after its 2008 invasion of Georgia and Israel has done during its occupation of Palestinian territories. When the compliance of sitting governments is required to carry out a war crime investigation, international institutions do not have mechanisms to hold these governments accountable.

The principle of state sovereignty lies at the core of the international legal system, which is what has led to these compliance issues. The ICC does not have the leverage to compel national governments to comply with investigations, and it can be difficult to imagine a system where countries would subscribe to the authority of the ICC when it may go against their interests. However, finding a better balance between respecting the autonomy of national governments and ensuring accountability for human rights abuses is critical to addressing international criminal activity. 

The failure of international governance in war crimes is further exemplified by the Bosnian trials, which provide a case study on how the ICC may ultimately confront Russia’s atrocities. In the 1990s, then-President of Serbia Slobodan Milošević went to war with Bosnia; during this war, 8,000 Bosnian Muslim men and boys were massacred in the town of Srebrenica. Milošević was due to face an international trial for crimes against humanity and genocide yet could not be tried until 2000, after he left power. 

Milošević was ultimately extradited to the International Criminal Tribunal for the Former Yugoslavia (ICTY). Located in The Hague, Netherlands, the body was formed by the UN in 1993 to investigate war crimes that occurred during the conflicts in the Balkans in the 1990s. The extradition took place under two conditions, both of which may not hold for Putin. The first is that Milošević lost an election and was, therefore, removed from power. It is unlikely that Putin will be ousted anytime soon due to his authoritarian control. 

The second condition is that the Serbian government was willing to give Milošević up to the ICTY in 2001. Serbia’s prime minister at the time had hoped this move would improve relations with the West and possibly open it up to billions in foreign aid to revive its economy. It is likely that the prospect of EU membership was also a motivating factor in Serbia sending Milosevic to The Hague. 

Russia is certainly not in the same position as Serbia was in 2001 in terms of hoping for Western rapprochement. Even if Putin were to lose power, since antagonism to the West is deeply ingrained in Russian politics, a new leader would be unlikely to extradite Putin to the ICC. This would require nothing short of a sea change in political thinking at the Kremlin. Russian authorities are denying any allegations of war crimes and have refused to cooperate with investigative inquiries. Furthermore, Russia is already taking steps to destroy evidence of crimes, according to Ukrainian officials. Even if Putin is deposed and extradited, and ICC investigators are allowed to enter Russian territory, there may not even be sufficient evidence left to convict Putin for his actions.

The American history of undermining the international legal system, particularly the ICC, also reduces the Court’s ability to hold Putin accountable for war crimes. The United States has not ratified the Rome Statute, greatly limiting its international standing and support. Although US President Joe Biden has labeled Putin a war criminal who should face trial, Biden has not specified which forum should be used for such a prosecution.  

These actions represent a damaging hypocrisy in which international structures intended to hold war criminals responsible are used only when it is convenient for American interests. These actions also set a precedent for other countries to refuse to ratify the Rome Statute.

The ratification of the Rome Statute by the United States would demonstrate a commitment to the authority of the ICC and to the legitimacy of the international legal system as a whole. Given the role of the United States as a leading world power, there is no understating the importance of this move. Moreover, if President Biden is going to argue that Putin should be held accountable for his crimes, he should follow through and empower the only court with the authority to effectively do so.