Justice for Ukraine: Harold Koh on International Law
“The world is no longer safe for Vladimir Putin. He has sacrificed his legitimacy. He can’t be Russia’s leader going forward. He’s got to be held accountable and the mechanisms to do so exist. "
As the war in Ukraine grinds on, and ever more evidence of Russian war crimes emerges, Ukrainians and people around the world have begun demanding justice. But what help can international law provide—especially while Russian President Vladimir Putin remains in control of a vast, nuclear-armed military and security apparatus? To understand the options and the prospects for justice, I called Harold Hongju Koh, a leading U.S. expert on international law, national security law, and human rights. Now Sterling Professor of International Law at Yale Law School, where he previously served as dean, Koh is the rare academic who actually understands how power works and the way policymakers think. Among his accomplishments: from 2009-2013, he served as Legal Adviser to the U.S. State Department, where he played a key role in shaping many aspects of the global war on terror. And a few weeks ago, he represented Ukraine in its case against Russia at the International Court of Justice. We spoke last Friday.
Octavian Report: You were quoted recently saying that every case of mass atrocities takes on its own distinct character. How would you describe the character of the Ukraine war?
Harold Koh: It’s one of the few times in my lifetime—maybe the only time—that we’ve seen war crimes used as a tool of naked aggression. It appears that Putin’s deliberate plan from the start was to kill civilians. In 2014, Russia’s approach to Crimea and the Donbas was to use little green men and the like to ensure deniability. This time, the aggression is blatant.
In terms of the war crimes themselves, you have two things going on. The first is the indiscriminate targeting and shelling of civilian infrastructure from afar, regardless of whether children and other noncombatants are present. This was best illustrated by the bombing of the theater in Mariupol that had the word “children” written on it. It takes an evil person to deliberately bomb something that says “children,” especially when it would have been easy to accomplish the mission without doing that.
Second, what Bucha has now shown us is that when the Russians move in close, the war becomes even more brutal. We’re talking face-to-face brutality of a kind that we haven’t witnessed in a long time. Russian soldiers have apparently been instructed to rape women, torture people, bind their hands, and then shoot them in the head and dismember them or throw their bodies into a mass grave. This combination of indiscriminate shelling from afar and brutality up close is very distinctive; there have been few cases in recent history that have been that blatant.
OR: What’s the best historical analogy for what’s happening, and what lessons should we draw from that example?
Koh: I think it has to be Bosnia, but in a slightly different way. There are several ideas to focus on right now. One, we should steadfastly support an accountability process without prematurely committing ourselves to any particular institution to conduct it. The process could be handled by a number of different bodies. First, you have the Ukrainian courts. National courts, particularly in Germany, have a long history of effectively prosecuting wartime atrocities. And the laws are all in place. If that doesn’t work, you also have the International Criminal Court (ICC). Some international law professors have been arguing for an entirely new court, but reinventing the wheel when you’ve already got some wheels that work seems a little crazy. Particularly if you want swift justice.
The second idea is a fragmented Nuremberg. We’re not going to get a single coordinated prosecution of atrocities and aggression in one place. Unlike after World War II, when the Nazi leaders were defeated and in custody, not a single high-level Russian is in custody today. And Putin still has 180,000 troops and nuclear weapons. So it would be counterproductive to spend a lot of energy at this point creating an aggression tribunal that might end up having the perverse effect of driving Putin out of ceasefire negotiations. I think what we’re going to see instead is a kind of an accelerated version of Dayton.
OR: Describe what that means, exactly.
Koh: The wars in the former Yugoslavia took place over a long period of time. Who was up and who was down shifted often. After the Serbs’ initial military success, the Croats started to gain the upper hand. On that basis, and supported by NATO bombing, the Serbs came to the table at peace talks held in Dayton, Ohio, and made a deal: the 1995 Dayton Peace Accord. And that deal still holds today.
What was very interesting about Dayton was that the Yugoslav war crimes tribunal had been created about a year before, but neither [Serbian President] Slobodan Milosevic nor Radovan Karadzic, the leader of the Bosnians Serbs, nor Karadzic’s military leader Gen. Ratko Mladic—all of whom were war criminals—bargained for immunity at Dayton. As a result, the negotiators at Dayton were able to stop the fighting, make peace, resolve the political disputes, and partition Bosnia. And Milosevic, Karadzic, and Mladic all ended up at the tribunal in The Hague a number of years later. Milosevic died in captivity and Karadzic was convicted and remains in prison. That’s a model of what we’re looking for today. The question is, how do you get Putin to that place?
I think it’s a five-step process. First, you need good information. If there’s any advantage that we have now over the past, it’s the extraordinary amount of information out there that can’t be controlled: social media, live video, etc. Second: illegality. We need, as much as possible, to brand everything that Putin, his facilitators, and his cronies are doing as illegal. Third: isolation. We need to drive Putin and his supporters into a state where they feel isolated and have limited leverage. That requires keeping the Chinese from openly backing Russia because of the fear of being implicated in war crimes and illegality, which would prevent China from functioning in our interdependent world.
Fourth, you need diplomacy, with everyone brought to the table. Who should be the shepherd of that diplomacy? I’m not sure [Turkish President Recep Tayyip] Erdogan, who is currently sponsoring peace talks, is the right person, given his failings as a democrat and as a leader. Finally, fifth, we need accountability. Accountability must not be bargained away in the diplomatic process.
The reason why I describe the process as an accelerated Dayton is you don’t want it to go on for five years. I don’t know if Ukraine has the capacity to win the war outright. Military, they’re doing an extraordinary job, but I think you want a ceasefire as fast as possible, followed by negotiations that lead to a stable, peaceful outcome.
OR: It sounds like you agree with Richard Goldstone—the South African judge who served as chief prosecutor of the Yugoslavia war crimes tribunal—who’s argued that bringing charges prematurely against Putin could be counterproductive to negotiations.
Koh: Yes, you don’t want Putin to say, “I won’t negotiate unless I get immunity,” because that would split the coalition against him. Some people would say, “We’ve got to give him immunity to get him to the bargaining table.” But I think he has to be driven there by his own sense of isolation and loss of leverage. We’re already on the way. Let’s not kid ourselves: in the space of two months, he’s gone from being a dominant leader within his own territory to a kind of Augusto Pinochet figure, isolated from the world. He can’t step outside of Russia, nor can his assets, nor can his children. He’s already put himself into a box. But we need to maintain some kind of off ramp, so that he doesn’t conclude that his only choice is to use chemical weapons or hypersonic missiles or, God help us, something more.
OR: Are there things that international law can do now to help address the crisis despite the fact that no one is in custody? I’m thinking here of your recent case at the International Court of Justice (ICJ). You’ve called the court’s ruling against Russia’s invasion and its demand that Russia cease its activities in Ukraine a landmark. But given that the ruling hasn’t affected Russia’s behavior, how has it made a difference?
Koh: I don’t accept the premise that the ruling hasn’t changed Russia’s behavior. President Joe Biden didn’t call Putin a war criminal till after that ruling. When Biden met with Chinese President Xi Jinping on Zoom and told him not to give weapons from to Russia, I’m sure part of the message was that the International Court of Justice has called Russia’s military actions illegal, so giving weapons to Russia would also be illegal. If China still wants to function in the World Trade Organization and other international bodies, they’re going to have to face that fact.
There has been some delay on the enforcement side because the United Arab Emirates was the president of the UN Security Council in March, and they had voted against the initial resolution condemning Russia’s actions. But the United Kingdom is now president of the council, and there’s already been a flurry of activity there. I think you’re going to see an enforcement effort at both the Security Council and the General Assembly.
So don’t assume that the ICJ ruling hasn’t been effective. People need to ignore all these newspaper stories that say things like, “The world court can’t enforce its own orders.” No court can enforce its own orders. Even the United States Supreme Court cannot enforce its own orders. When President Richard Nixon was told to turn over the tapes, it’s wasn’t the Supreme Court that went out and enforced that ruling; it was everyone else. Whatever veneer of legality Putin was trying to attach to his actions has now been debunked by the ICJ. That opens the space for pervasive determinations of illegality by everyone else, and that means that everyone can enforce. They can seize the oligarchs’ yachts. They can freeze Russian assets. They can bring cases in domestic courts, as has already happened in some eight or nine countries.
They can also push for an ICC prosecution. Within the United States, there’s already been a remarkable turnaround in the attitude of Congressional Republicans toward the ICC. For the last 24 years, they acted like the ICC is America’s enemy. The Trump administration imposed sanctions on the ICC’s prosecutor and deputy prosecutor. Now, suddenly, you have senators like Lindsey Graham and Chuck Grassley supporting the ICC.
OR: What can they and the United States do to help the court?
Koh: It’s not enough to say “I support the ICC”—you have to give it resources. So the U.S. government should send 20 Department of Justice prosecutors tomorrow, with money and intelligence support. And if doing so would be inconsistent with U.S. law, then pass new laws. What made the war crimes tribunals for the former Yugoslavia and Rwanda successful was that top-notch career U.S. prosecutors went and worked on those tribunals. That’s why they got successful cases. One of the reasons why the ICC hasn’t been so great thus far is that the United States hasn’t participated. The ICC’s top prosecutor, Karim Khan, doesn’t have nearly enough prosecutors.
Ukraine’s war crimes directorate is apparently gathering information, but why isn’t the United States intelligence community and its allies in the Five Eyes intelligence alliance [Australia, Canada, New Zealand, and the United Kingdom] maintaining a common database that operates in real time? If I can upload my COVID vaccinations into a government database, then someone fleeing Kyiv who sees their apartment building destroyed should be able to upload their video into a common database to lay a claim. Both civil and criminal accountability needs to be facilitated by the establishment of archives.
OR: You’ve already touched on this in a few places, but explain to our readers who may not understand international law or may be skeptical of it what it can do to affect the outcome of the Ukraine war now—as opposed to merely seeking to justice after the fact.
Koh: International law can declare Putin’s actions illegal, isolate him, and limit his leverage by reducing his resources. It can force him to choose between his current course—which involves the blatant use of war crimes and the killing of civilians—and a negotiated solution, on the theory that he’d be more likely to get what he wants that way. The Russians already seem to have dialed back their aspirations in Ukraine. That could be the basis of negotiations.
If you go into diplomacy and get issues like humanitarian concerns or Ukraine’s NATO aspirations or its potential neutrality on the table, and the process produces a document like the Dayton Accord, that’s international law. So international law helps provide a way out of this. And then if you don’t grant Putin immunity, then accountability issues can stay in the picture and get worked out over time, with cases brought against individuals as they’re apprehended. And that’s what happened in Bosnia.
OR: If, at the end of the day, Putin and his top lieutenants do escape justice, what will the repercussions be for international justice? How much damage would that do?
Koh: The way in which people have been calling for war crimes prosecutions, the speed with which people have labeled Russia’s actions genocide—that shows there’s already been progress. How many people watched the videos from Bucha and said, “Somebody’s got to pay for this?” The world is no longer safe for Vladimir Putin. When Biden said, “For God’s sake, this man cannot remain in power,” he was simply voicing what a lot of people were already thinking. Putin has sacrificed his legitimacy. He can’t be Russia’s leader going forward. He’s got to be held accountable and the mechanisms to do so exist.
At the end of the day, however, the most critical players will be the people of Russia, whom the United States and the other NATO countries have repeatedly told, “You’re not our enemy.” They and the oligarchs have to be thinking, “What are we getting out of this? Putin has ruined our lives, and it looks very bleak for the indefinite future.” I’m sure that people in the FSB [the successor to the KGB] and elsewhere are thinking, “Is there an escape route that involves getting this guy, who seems to have lost touch with reality, out of the scene?”
OR: Do you really think that we as a species have gotten better at preventing mass atrocities? I used to think that history had a ratchet, so that while things could always get bad, they would never get quite as bad as they had in the past. But here we are in 2022, 70 years after the Holocaust, and we have concentration camps in China, we have genocide in Myanmar, and we have the deliberate targeting of civilians and other terror tactics being used by Russia. It’s not clear to me how much deterrent effect past war crimes tribunals have had. In fact, one could argue that trials and international justice have only ever been possible in the rare moments where either the great powers agreed or were distracted, or the leader guilty of war crimes was deposed and handed over by his people, as happened with Milosevic. What’s your take on this?
Koh: I think that there’s no doubt that the state of affairs is better. We have a much more transparent situation. How many people died during China’s Cultural Revolution? We have no idea. There was no Internet, so you could quietly disappear millions of people and nobody would know about it. The fact that you were just able to mention what’s going on in different, far-flung places, and that all these cases have been subject to close examination and labeling, suggests that the world is much more transparent now.
Human rights abuses are also no longer just an internal affair. We’re no longer operating within strict spheres of influence where the Chinese can just slaughter Uyghurs in Xinjiang and then act like it makes no difference to the world. Look at the loss of reputation suffered by Myanmar’s Aung San Suu Kyi when she went from being a persecuted Nobel peace prize winner to someone who’s actively defended the slaughter of the Rohingya.
International law is a human construct, a tool that can be used as an alternative to force. It may be a weak human construct, but it’s better than what we had. The Dayton Peace Accord has held for almost 30 years. Maybe what you have in Bosnia today is a cold peace, or a frozen conflict, but that’s better than the open genocide of the 1990s.
Putin thought he could get away with his actions in Ukraine. He thought that he could seize a country of 44 million people, commit war crimes, and that the Ukrainians would roll over and the rest of the world would not respond. But he was wrong. It turned out to be a huge miscalculation on his part. And that’s a huge statement. I don’t know how this will end, but it doesn’t look good for Putin. Ukraine is his Vietnam, and it probably ends with him leaving power and ending up [at the ICC] in The Hague.
This interview has been edited for clarity and length.