War Criminals

One thing the Peace of Wespthalia did not have to deal with was war crime or war criminals. This is ironic considering that the Thirty Years’ War is a byword for the nastiest possible mistreatment of civilians. To really qualify as a war crime, though, the act needs to be committed as a matter of policy, whereas the atrocities of the Thirty Years’ War were mainly the result of an unpaid and poorly fed soldiery. Authorities may have used the threat of violence to get their way at times, but I’m not aware of any case of explicitly condoning atrocities against civilians. In fact, one of the most famous series of prints from the war, the “Great Miseries of War” by Jacques Callot, actually shows authorities punishing soldiers. Those bodies handing from the tree are soldiers being summarily executed for mistreating civilians.

Instead of war crimes, the Peace of Westphalia was notable for its provision of a broad, nearly universal amnesty. This was important because many participants were, at some level, subjects of the person they were fighting, mostly subjects of the Emperor. By taking up arms against their sovereign, they were guilty of treason and therefore had forfeited the right to life and property. One could make the case that their rebellion was justified, and, in any case, the foreign powers under whose authority they fought were not going to accept a peace after the conclusion of which their soldiers would be prosecuted. The result was one of the first general amnesties, something which became increasingly common in future treaties.

Nowadays, “war crimes” falls out of one’s mouth very easily, and some have already accused Putin of being a war criminal. He may actually be a war criminal by the current definition of targeting civilians and possibly by the use of unauthorized weapons such as thermobaric explosives. It is all very well to call someone a war criminal when he rules a weak country that can be conquered, the way Saddam Hussein was tried after the fall of Iraq, or Manuel Noriega after the invasion of Panama. (Note: I don’t think either of these rules was tried for war crimes, but the principle would be the same.) Putin, however, is the leader of a great power that possesses nuclear weapons. Since the conquest of Russia seems a very unlikely outcome of the present conflict, I’m not sure how useful it is to accuse Putin of war crimes. At some point, people are likely to negotiate with him, and I feel like it would be awkward to come to an agreement with someone that you have labelled a war criminal. “Look, I know I called you a war criminal, and you are one — we would certainly put you on trial if we ever had the opportunity — but we recognize that you are the leader of Russia and that is not likely to happen. Therefore, would you like to make a deal with us?”

I’m not saying Putin isn’t a war criminal, and I’m not saying everyone should tiptoe around the subject just because Russia has nuclear weapons. I do wonder, however, how useful it is for a head of state, such as Joe Biden, to announce that Putin is a war criminal. I feel like this puts another barrier in the way of possible settlements without doing much to deter Putin from further crimes of the same nature. An article in the Boston Globe helpfully points out some of the niceties of what constitutes a war crime and how that is adjudicated. It mentions several world leaders who have been convicted in the past, but they were all former heads of state by the time the trials occurred.

It also appears that an indictment is already in process against Putin and may be ready in a year, but the odds that anything will happen to him are very small (barring, say, a coup d’état). If you were a world leader who had been tried and convicted of war crimes, wouldn’t you make the vacating of the judgement against you a precondition for any negotiations? In matters like this, I suppose it is inevitable that the actors filing charges are themselves states, but I wonder if it wouldn’t be best for the current government to stay out of the process as much as possible. That way, if Putin says, “I will not negotiate unless you drop the war crimes case against me,” the president could say that he was not involved in the prosecution so it was not up to him. As chief executive power, it would clearly be somewhere in his purview, but he might not have direct supervision over it. After himself accusing Putin of war crimes, on the other hand, Biden could not make such an argument even as a legal fiction. That means that the matter of Putin’s alleged war crimes could well be brought into negotiations, forcing the U.S. either not to make an agreement, or to agree to stop pursuing what might be a perfectly just case. That sets a bad precedent, especially as we would be unlikely to keep our promise if Putin were ever out of office and out of Russia.