Thoughts on Ukraine, Part 4: Just War Theory

…just war theory offers a series of principles that aim to retain a plausible moral framework for war. From the just war (justum bellum) tradition, theorists distinguish between the rules that govern the justice of war (jus ad bellum) from those that govern just and fair conduct in war (jus In bello) and the responsibility and accountability of warring parties after the war (jus post bellum). https://iep.utm.edu/justwar/

Figure Kleptocrats identified in the Sanctions (source: https://www.cnbc.com/2022/02/26/here-are-the-russian-oligarchs-targeted-in-bidens-sanctions.html)

International Criminal Court (ICC) Prosecutor Karim A. A. Khan QC stated, “Today, I wish to announce that I have decided to proceed with opening an investigation into the Situation in Ukraine, as rapidly as possible.” But he then exposed one of the ICC’s weaknesses: membership. If you are not a member, you cannot initiate action and may not even be subject to action. This throws a wet blanket over their ability to do anything meaningful. Still, there are other venues such as the war crimes unit at the Hague that Europe used to prosecute war criminals in the Bosnian wars.

By Just War theory, Russia has clearly committed war crimes. By justum bellum, Russian started a War of Aggression which is a war crime. By jus ad bellum, their attacks on civilians are also war crimes. These crimes are documented by video and eye witness accounts. There is little doubt about them. The only potential doubt is two-fold:

• How far down the chain of command does the prosecution go? Do we go down the rocket battery commander that fired the rockets: the battalion commander, the regimental commander, or higher? The prosecution at Nuremburg after WWII clearly established that following orders is no defense against a war crime.
• How culpable are the Russian oligarchs? It is easy to throw around the term kleptocrats, as I did in part 2 and part 3, it is another to prove culpability in war crimes. Is simple acquiescence and funding a war crime? The precedence at Nuremburg may provide some answers. What did the prosecutors do to the executives of major German industrial firms and banks that enabled the Nazi war of aggression and jus ad bellum war crimes?

I think we also need to keep in mind the problems that a harsh peace settlement can create. The Treaty of Versailles created WWII. We certainly do not want that. We need to use WWII’s peace as an example. Our goal should be to incorporate Russia into the west as a responsible state with an effective government that embraces human and western values.

Therefore, I propose a different way to handle these war crimes. Separate the kleptocrats from the state. Prosecute the kleptocrats and use their considerable personal wealth to pay for the damage they inflicted in Ukraine. By most accounts, this is billions of dollars. Now this hangs on the second bullet above. However, since they are named in the sanctions, there is a simple case.

Rather than holding the Russian state and people responsible for these crimes, we should hold the kleptocrats responsible for them. The war crimes prosecution should work in conjunction with the sanctions and the world financial system. Each kleptocrat found guilty should lose their entire wealth to the damages inflicted on Ukraine. If the west has enough evidence to sanction them, there should enough evidence to prosecute them.

Civilized nations need to get serious about curtailing wars of aggression. We also need to get serious about holding non-state kleptocrats and narco-terrorists accountable for their actions. They destroy lives and foundations of civilization through their drugs, human trafficking, and violence. They need to be held personally accountable for the death and destruction they wrought.