War Crimes in Ukraine and the Specter of Justice
A Reflection on the Limits of the Courts and the Function of States
In a letter to German-Swiss psychologist, Karl Jaspers, in 1946 as the first Nuremberg Trials were drawing to a close, Hanna Arendt wrote that “the Nazi crimes, it seems to me, explode the limits of the law . . . for these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is totally inadequate.”
There had of course been centuries of imperial Genocides prior to the Second World War—indeed the modern European Nation-State was founded upon those genocides—but in the European mind, the colonial space was a space in which indigenous sovereignty (and indeed humanity) was unrecognized. Therefore, any laws or codes of conduct that might be enforced, or at least valued in theory, in Europe were functionally nonexistent in the Global South where ways of organizing societies did not mirror European ways of ordering.
The colonial space was a geography of so much devastation specifically because it was understood as a Stateless zone by European colonizers (lacking in both laws and humans) and indeed necessarily constructed and construed as such. It was under this same logic that the Nazi’s operated. That is why the Polish State had to be destroyed whereas Norway, Denmark, and the Netherlands for example, where relatively very few Jews were killed (and where the resident gentiles were not seen as racially inferior) were occupied but not erased. Poland, like Ukraine (then by the Nazis and the Soviets and now once more by the Russian State), was seen as a Stateless land populated by sub-humans which was necessary to colonize in order for the German State and people to reach their full political and biological potential (without the colonization of Africa or America’s westward expansion, this conceptual framework for Germany’s eastern campaign could not have existed as it had). It is for this reason that all of the killing centers were built in Poland. Chelmno, Belzec, Sobibor, Treblinka, Majdanek and Auschwitz.
Before the death camps, however, there were the mass shooting sites across Eastern Europe, including in Poland, Slovakia, Latvia, Lithuania, Ukraine, and Belarus. Here local Jews were executed as well as Jews deported from central Europe. The death pits, like the death camps (which were ultimately erected to address issues of logistics and expediency more than anything else), existed in a colonial realm where States and the legal protections they offered in reality or in theory were erased. To strip a people’s right to life one must view a group as unworthy of living and the geography which they inhabit (or are slated to die) as a geography without any legitimate means of protecting that (now) illegitimate life.
We remember Auschwitz, and it has (problematically) become a symbol for the Holocaust and for the embodiment of evil in the 21st century, not because it produced the most death, or because a gas chamber is a fundemantally more horrific death than the systematic execution of tens of thousands of civilians into a pit they themselves were forced to dig, but because the majority of Jews sent to Auschwitz were from Western Europe. Violence is its own language. Who was killed said as much as where they were killed. The Polish resistance was as fierce as it was because they understood that when the Jews were gone, they’d be next.
The reason that these crimes, in Arendt’s words, “explode the limits of law” is ultimately because they took place in a geography that, within the Western imagination, was governed by a certain set of “legitimate” laws and legitimate political structures, even as they were destroyed by the Nazi regime within a broader intra-continental colonial project (indeed, many of these nations’ borders had been drawn up by the allied powers after the First World War and carved out of the German and Austro-Hungarian empires). While Arendt was critical of the West’s colonization of the global south—and especially Africa, and saw the linkages between colonialism and Europe’s descent into the total, industrial wars of WW1 and 2—that she does not similarly name the crimes of empire as “exploding the limits of law” reveals for all her wisdom she too is a victim and participant of Western exceptionalist and Euro-centric thought and ethos. Whose laws are valid? What sorts of (valid) institutions make these valid laws? What is the source of institutional validity?
As historian A. Dirk Moses later wondered in his essay “Revisiting a Founding Assumption of Genocide Studies”, “when the United Nations prefaced its post-war declarations with statements about events that ‘shock the conscience of mankind.’ We need to ask who defined the conscience and which events were excluded. Why had Europeans not been more shocked by their own colonial violence?” (A. Dirk Moses, pg. 296).
The sheer scope and brutality of colonization of the global south, especially in Africa, is what made the crimes of the 21st century in Europe possible. Psychically, technologically, and logistically. Yet it wasn’t until after World War 2 during the Nuremberg trials where Europe made an attempt to give language to and account for crimes of such brutality against civilian populations outlining definitions of genocide and broader war crimes. And it would not be for another half-century—until the Cold War ended and the Bosnian Genocide took place—that another international court would hold trials for war crimes, the International Criminal Tribunal for the former Yugoslavia (ICTY). Though, certainly, there had not been a void of war crimes or genocides in the years between the Second World War and the Yugoslav Wars. There had been many war crimes and many genocides (including the Rwandan Genocide which took place concurrently with the beginning of the Yugoslav Wars), but until Bosnia, they had all happened in former colonies outside of Europe and the subsequent trials were most often conducted by individual States’ courts (or ad hoc tribunals) in which those crimes took place or where the perpetrators were from. There were no international courts to speak of.
In the previous weeks, talk about Russian war crimes in Ukraine have increased as our insight into their scope has grown, especially so in the wake of the Bucha massacre. Under section 2 article 8 in the Rome Statute (the International Criminal Court’s founding document) the Russian army has arguably already committed as many as 32 different kinds of war crimes on countless occasions. More than 500 suspects within the Russian army have already been named, some of whom may already be POW’s. The larger question for many Ukrainian MP’s, however, is charging, trying and convicting Vladimir Putin himself. Putin can be tied to the individual acts of his soldiers and charged if the ICC can prove direct chain of command. That is, Putin either gave these orders or, knowing of their occurrence, failed to stop them. As far as Putin is concerned, however, under article 8 paragraph 3 the most likely crime he could be charged with is the Crime of Aggression as the commander in chief giving the order to invade a sovereign nation unprovoked. But how likely is any of this?
The bodies of civilians who local officials say were killed by Russian soldiers are seen after their exhumation from a mass grave in Buzova on April 10 (Via Radiofree Europe)
Every interview ultimately lands on the same conundrum. The chance of actually sending the leaders of regimes committing war crimes to the ICC is all but impossible. The NYT Daily podcast did a great episode on this that I recommend checking out and one which addresses, at length, the Bosnian genocide.
These conversations, moreover, have focused exclusively on the logistical and jurisdictional limitations of the International Criminal Court. That is, how does the ICC apprehend an individual in order to try them? Regarding the ICC, jurisdiction only exists for its signatories. Russia is not a signatory to the ICC’s Rome Statute (nor is the US it should be mentioned). Russia ultimately gives the ICC, its findings and its power, the same legitimacy as the Ukrainian State: none.
The only means of enforcing punishments for war crimes then for non-signatories would be through complete defeat of another Nation-State and subsequent capture of its leaders (as in the Nuremberg trials of Nazi top brass) or through State extradition. I cannot imagine any future, absent a war which proliferates into a successful invasion of Russia (which shouldn’t and almost certainly won’t happen) or a Russian revolution reminiscent in scope and outcome of the Bolshevik revolution a century ago, that would result in a Russian State admitting to, let alone extraditing Vladimir Putin for, war crimes.
The question and larger issue that, unsurprisingly, diplomats, politicians and pundits are not talking about, are the conceptual limits of the courts generally, the sheer insufficiency of juridical “Justice” in the face of war crimes which “explode the limits of the law”, and what these insufficiencies reveal about the modern democratic Nation-State itself.
What punishment aims to accomplish, whether imprisonment or death is that (a) the punishment seeks to annul the initial crime committed by re-enacting a proportional event upon the body of the condemned and (b) through the punishment upon the body of the condemned, it seeks to re-establish order, the very socio-political order that was disrupted by the crime.
Whether it be petty theft or mass murder, what is really on trial is less the harm done to an individual or individuals, but the harm done to the sovereign, in present times, the State. In a crime from one person to another, the assailant disrupts the victim’s normative world, and their relationship to it, but it also disrupts the normative political order which maintains a monopoly on the use violence. As we see in policing, capital punishment and war, only the State has “legitimate” claim to murder or imprisonment. The State’s use of violence, individually or en masse, is what we have come to know as “Justice”. The expression of that justice is an expression of order founded by violence.
The reason that war crimes are so hard to try and convict through the international criminal court or an international tribunal is because international juridical justice is also an expression of the might of Nation-States, and this expression is sanctioned by militarism. If war is not sufficiently concluded to the degree that one State or union of States has enough power over another to capture and try the criminals of the enemy state(s), then the only real mechanism to apprehend war criminal leaders is through further war. The very event which occasions war crimes.
All court proceedings, subsequent sentences, and the infrastructure to carry those sentences out are dependent upon militarism. Upon force or the threat of force. Through “Justice”, what is being restored is not the normative world of the victims (how can the normative world of the residents of Mariupol, Aleppo or Grozny be restored?) which had been ruptured by violence, but instead an international order in which the force of law reigns supreme, and the concept of Justice is, ultimately, the violent expression of the State.
It was supposed to be justice for Göring to hang, and justice for Milosivic to spend the rest of his life in prison (had he not died of a heart attack in the middle of his trial), but neither measure is proportionate to the millions dead and displaced. Neither measure is restorative in any which serves the victims and survivors of war crimes nor does either measure orient us toward a world in which war crimes cease to take place. Convictions, and the juridical process, are only specters of the fiction of Justice ultimately serving to further legitimize the modern Nation-State, and the militarism upon which its “authority” and the “validity” of its legal systems depend.
We are not even two months into the war in Ukraine and there is not a punishment severe enough which is able to raise the dead or reconstruct the lives lived by millions of refugees. Putin could join Sisyphus and roll a boulder for all of eternity and still, it would be inadequate. What is really revealed here is that punishment itself, in all its forms and for all crimes, is inadequate. And it is the inadequacy punishment through the juridical which reveals the inadequacy of the State. Both its material and conceptual limits.
Every national border is a product of war. In every war there have been war crimes committed by both sides. There is not a single Nation which is not a product of war of one kind or another and is not maintained by war of one kind or another.
The truth is that Nation-States have no mechanism by which to adequately address the violence which they engender. It is both a failure of the modern Democratic Nation-State’s imagination and its very architecture. War is in the Nation's DNA; it is foundational to both national belonging and national borders.
This is why the narrative battle, the propaganda infrastructure, is so essential. Within a binaric performance of State power, there must be good and evil, the protector and the invader, the citizen and the anti-citizen, the law-abiding citizen and the criminal.
As historian Saul Friedlander reflects in his article History, Memory, and the Historian: Dilemmas and Responsibilities, “the most basic function of this representation of evil is inherent to the self-image of liberal society as such . . . in order to identify its own ideals and the nature of its institutions, any society needs to define the quintessential opposite to its own image” (Friedlander, pg. 10).
We are trapped within the same fictive entities upon which our livelihoods depend (and by which our livelihoods are simultaneously threatened). What can be done?
Just as the call for the abolition of police asks us to create the conditions in which police are no longer necessary, the world must also ask the question: what conditions are necessary so as to avoid war crimes? This question ultimately asks, what are the conditions to avoid war?
If the call is to end war, then what really must be demanded is a global demilitarization facilitated by a fundamental reformation of how we both organize and understand ourselves in relation to each other. War predates Nation-States, certainly, but Nation-States, as explored, express themselves in terms of identarian and geographical boundaries and belonging through war.
It is delicately complex, at best, to discuss the dismantling of States in a political moment wherein a belligerent imperial power is expressing in its propaganda the illegitimacy of the Ukrainian State through mass murder and what appears to be more and more possible, if not likely, Genocide (especially in the wake of this horrifying article published by Russia’s official press agency, RIA Novosti). It is essential, however, that we find a way to both acknowledge and support the right of Ukrainians as a historically oppressed group to defend themselves and determine how they are organized, while also acknowledging the violence inherent to the State as a construct and concept.
The question and the problem of war crimes in Ukraine, or anywhere, is not only (or ultimately) that they are difficult to bring to trial and even more difficult to end with convictions, especially for heads of State. It is that the performance of juridical “Justice” further legitimizes the authority of States, founded by war, as the only legitimate global actors. Seeking to find ways in which punishment is more expedient and more far reaching has not and cannot engender a context of peace, if it is peace that we really want then we must acknowledge the incompatibility of peace and the Nation-State. In so doing we must acknowledge that the juridical process, while it is the only (accepted/legal) mechanism we currently have, is an insufficient one with its primary function being a reaffirmation and performance of the State’s monopoly on violence. Putin deserves whatever the victims of Mariupol and Bucha and Aleppo think he deserves, but what the people of Mariupol and Bucha and Aleppo deserve cannot be provided through the courts or the Nation-States which have co-created, across generations, this current moment of carnage.
Friedländer, Saul, 2000. “History, Memory, and the Historian: Dilemmas and Responsibilities”, Duke University Press, New German Critique, No. 80, Special Issue on the Holocaust. Pg. 8, 10
Moses, A. Dirk, 2011. “Revisiting a Founding Assumption of Genocide Studies”, University of Toronto Press, Genocide Studies and Prevention, Volume 6, Number 3. Pg. 296
Other relevant texts: Force of Law: The “Mystical Foundation of Authority”, Jacques Derrida. Discipline and Punishment, Michel Foucault, The Enigma of Senseless Violence, Anton Blok, Violence and the Word, Robert M. Cover, The Origins of Nazi Violence, Enzo Traverso