Pearls and Irritations

What is a war crime?

There are plenty of candidates – Guernica, Dresden, the firebombing of Tokyo, the atomic bombing of Hiroshima and Nagasaki, the devastation of Korea, the massacre at My Lai – the list goes on and on. And now the International Criminal Court (ICC) in the Hague has added another. Maria Lvova-Belova, Presidential Commissioner for Children’s Rights, is a war criminal, as by extension is her superior, the President of the Russian Federation, Vladimir Putin. The charge? Crimes such as taking orphans from the war zone in the Donbass to meet potential foster parents in Nizhny Novgorod.

And those other war crimes? The ICC was not in existence then but its failure to investigate war crimes committed on its watch, such as in the invasion of Iraq, is suggestive of a convenient selectivity.

What are the grounds for this apparently perverse decision? The ICC doesn’t tell us; the existence of the warrants for the arrest of Putin and Lvova-Belova is made public but the evidence is kept ‘secret in order to protect victims and witnesses and also to safeguard the investigation.’ This lack of transparency seems to have been a wise move.

There have been previous claims by the Kyiv government of 16,000 ‘abductions’ and lurid media articles such as ‘How Moscow grabs Ukrainian children and makes them Russian’ but the trigger for the ICC action appears to have been a report from Yale University in February 2023 entitled ‘Russia’s Systematic Program for the Re-Education & Adoption of Ukraine’s Children’. This would appear to provide the dispassionate, academic heft to justify an ICC prosecution. However, as the New York Times admitted:

The research was a collaboration between Yale University and the Conflict Observatory program, which the State Department set up in May to document war crimes and other atrocities committed by Russian and Russian-backed forces in Ukraine.

So not quite dispassionate rather a State Department Lawfare operation – the use of law as a weapon of war.

The Yale report covered the transfer from the war zone of the Donbass of orphans to foster parents and the temporary placement of children in holiday camps. The section on methodology is illuminating:

Facilities that allegedly hosted children from Ukraine were identified through open source research in social media posts, government announcements and publications, and news reports…… Many actors involved in facilitation of these camps celebrated their involvement and made no effort to hide it, and occupation authorities sometimes published lists of upcoming camp sessions.

In other words the placement of orphans and the holiday camps were far from secret; in fact they were used in Russian government propaganda. It was admitted that:

…there is no documentation of child mistreatment, including sexual or physical violence, among the camps referenced in this report.

So how can this be construed as a war crime, and one sufficiently egregious to justify the arrest of the President of Russia and the Children’s Commissioner? In fact the whole brouhaha is not really about children, or actual war crime, but the claimed territory integrity of Ukraine. The Kyiv government, the State Department and now the ICC are asserting that it is sacrosanct and inviolable, irrespective of the wishes of the people in the disputed area. It is a conflict between the concepts of territorial integrity and self-determination. The ICC argues that the transfer is a crime because it is from Ukraine to Russia. Others will counter that saying that the Donbass has voted to join Russia, so there is no movement over state boundaries. Are these legal arguments irrelevant in view of the human rights of the children, taken from danger and deprivation to safety and a normal, hopefully happy, environment?

Children are the focus of this campaign partly because of the emotional pull; ‘Putin is a war criminal who mistreats children’ is a statement many will accept without question because psychologically a critical evaluation would seem to them to condone child abuse. Moreover, children have no agency; orphans do not choose their foster parents, children are sent to camps by parents and authorities. Adults are different. They vote in referenda and in Crimea and the Donbass they have voted overwhelmingly to join Russia. Figures of course need to be treated with caution but are broadly consistent with what might be expected. Moreover adults vote with their feet; according to data compiled by the UN High Commissioner for Refugees the country which by far hosts the greatest number of refugees is Russia. If the wishes of the people of the Donbass are taken into account the charges of war crimes evaporate.

This is not the only problem with the ICC warrants. To touch briefly on the major ones –

Firstly, the transfer of children from war zones to a safe haven, even on the other side of the world in a very different culture is not uncommon. Many good American families took in orphans from Vietnam.

Secondly, Russia, China and the United States are not party to the Rome Statute that established the ICC. The US has been particularly hostile with the Pentagon and John Bolton leading the way.

Thirdly, the ICC has effectively been weaponised by the US as an instrument of power. Chief Prosecutor Fatou Bensouda made the mistake of including the US in an investigation of war crimes in Afghanistan. The Trump administration sanctioned her. The ICC dropped the investigation. Perhaps in a deal Biden lifted the sanctions, Bensouda was replaced by British lawyer Karim Khan. The US had by then withdrawn from Afghanistan and the investigation was reopened with only the Taliban in the dock. Khan had learnt the ropes serving in the Yugoslav Tribunal which conveniently primarily focused on Serbian war crimes.

Fourthly, false war crimes divert from real ones and degrade the very concept.

Fifthly, the implications of an arrest warrant against the president of a leading power, and the consequences of America’s misuse of its power over international institutions from the Korean War up to today is profoundly dangerous and inimical to a peaceful transition to a multipolar international order.

Watch this space, there is more to be said.

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