In the Wake of an Unjust War

The war in Ukraine is now raging into a second year of carnage with clear signs of more intense fighting to come. Despite a dogged defense by Ukrainian armed forces, a grim stalemate and war of attrition loom ahead as Russia masses manpower in the field. More sobering is the grim possibility that Moscow will make good on its threat to use tactical nuclear weapons. Observers in the West are shocked by the mounting casualties and specter of nuclear war.

This war has, once again, proven that rule of law is an imperfect instrument for reining in aggressors. International norms of behavior, conventions, and agreements among sovereign states—including the 1994 Budapest Memorandum of Security Assurances for the sovereignty of Ukraine—have been tested and found wanting. 

The only moral object of war is to make a more perfect peace. No other reason suffices to justify the death, destruction, and, suffering of war, especially when modern wars make little distinction between combatants and non-combatants and are waged with weapons of mass destruction that raze entire cities. Justice after war—Jus Post Bellum—seeks the more perfect peace that establishes an enduring peaceful order, employs justice instead of revenge to redress wrongs, and creates the conditions for conciliation. 

When this war is over, Ukraine will remain a disordered state, insecure in its own borders and still threatened by Russia. There will be no justice meted out for Moscow’s contrived reasons for aggression—the unjust use of force—and little or no justice for all the victims of war crimes. No imaginable agreement could reconcile Moscow’s paranoia, imagined grievances with the West, and Russian President Vladimir Putin’s unbridled ambitions—with Kyiv’s demands for recognition of its sovereignty, a Russian withdrawal from all occupied territories, and indemnities. 

When this war is over, a more perfect peace will not be made.

A War Unjust, Illegal, and Immoral 

The Just War Convention in the western tradition—Jus ad Bellum—are those conditions by which a state may resort to the moral use of armed force and thereby, fight a just war. Those conditions are animated by a just cause, namely that the state of peace that exists after the war is better than conditions before the war. 

In addition, a war can only be waged justly when there is a reasonable chance that resorting to force of arms will achieve success. Wars that result in needless death, destruction, and suffering are immoral and unjust. In principle, too, armed force must only be used as a last resort—literally, after all other peaceful means to reconcile have been exhausted. These conditions of just war are codified in the United Nations charter, of which both Ukraine and Russia are signatories. The charter binds nations to seek the peaceful resolution of disputes and, further, requires approval of the UN before any nation resorts to the use of force, except in self-defense. 

Attempts to organize negotiations faltered and then failed in March 2022 when representatives in the bi-lateral talks literally found no common ground on which to establish a Russian-Ukrainian border.

Moscow claims to be fighting Nazis in Ukraine, defending the historic lands and rights of Russian-speaking people, and preventing genocide in the southern and eastern parts of the country. These canards are false on their face, like so many soundbites that come out of Tehran and Pyongyang. This is no war of self-defense. The cause for war was manufactured by Putin. In recently published accounts, Putin is said to have prepared invasion plans with a few confidants; he excluded the most senior members of the Kremlin and Russian leadership. Some reports claim that Russian leaders were stunned to learn that Putin authorized the “special military operation” in Ukraine without their knowledge.

Putin’s plan was intended as a sweeping invasion leading to the swift occupation of the eastern territories, the capture of Kyiv, and the capitulation of the Zelensky government. His goal was to annex occupied territory in Luhansk, Donetsk, Kherson, and Zaporizhzhia; depose the Kyiv government and install one friendly to Moscow; pull Ukraine firmly into Russian orbit; present the West with a fait accompli; and burnish his legacy with war-time leadership and victory.

None of these goals constitute a just cause, and moreover, it is unlikely all these goals could be achieved by armed force. Neither did Putin plan the invasion as a last resort having exhausted all other means of resolving what he saw as threats to Russia. In an overwhelming vote, the United Nations General Assembly condemned the invasion, called for Russia to withdraw its forces, and for an immediate end to hostilities. The Assembly also adopted a resolution that condemned Russia’s “illegal so-called referendums” inside Ukrainian territory and demanded Moscow reverse its annexation declaration. 

The Russian war in Ukraine has been judged by the international community as unjust, illegal, and immoral.

An Enduring Peace Denied

If a ceasefire were declared in Ukraine today, nothing would have been accomplished to resolve Moscow’s conviction that Ukraine is part of Russia’s historic motherland and Kyiv’s certitude of the country as a sovereign state. There is more than atavism at issue here for Russia and especially for Putin. In 2014, in a speech celebrating the Russian annexation of an assumed independent Republic of Crimea, Putin exclaimed Ukrainians and Russians “are one people . . . Kyiv is the mother of Russian cities. Ancient Rus’ is our common source, and we cannot live without each other.” For Putin and Russian leadership, that Ukraine is Russia is an article of faith. 

Putin is desperate to pull Ukraine away from the West—away from liberal democracy and the western economy. A Moscow-friendly regime in Kyiv could ensure that Ukraine fails in its aspirations to join the US-led transatlantic partnership in NATO and the European Union. Moreover, a Ukrainian state annexed to Russia—as Crimea was annexed—would create greater security. Even as an independent but Russophile polity, Ukraine would serve as a sort of buffer state between Russia and NATO countries. 

Before the Russian invasion, Moscow had demanded binding guarantees that Ukraine would never become part of NATO. This demand remains a “red line” for Russia as Moscow sees further NATO enlargement as an increasingly existential threat. If Moscow’s invasion of Ukraine was a warning to other states not to join the alliance, that effort has failed. Instead, the Kremlin will face an enlarged alliance with new member nations Sweden and Finland—once purposefully declared neutral states—and an alliance filled with a new and hardened resolve to check Russian aggression.

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Subsequent efforts to start negotiations have foundered on Ukraine’s demands for the immediate withdrawal of all Russian forces and Russian demands for recognition of its rights to occupied territory. Now only success on the battlefield—and boots on the ground—will dictate the shape of peace.

Kyiv, for its part, has made plain its view of a more perfect peace: any negotiated settlement must include Russia’s complete withdrawal from all Ukrainian territory including Crimea and the Donbas regions. This position should not be dismissed as the opening gambit of negotiating strategy. Ukraine’s President Volodymyr Zelensky has wholly rejected Moscow’s claims that the results of Russian organized referendums in the occupied territory of Luhansk, Donetsk, Kherson, and Zaporizhzhia justify their annexation; the rigged voting there has been widely denounced as a coercive sham. 

Zelensky has also rejected Moscow’s demands that Ukraine recognize Russian sovereignty over Crimea as a precondition for any peace negotiations. The attempts to organize negotiations faltered and then failed in March 2022 when representatives in the bilateral talks literally found no common ground on which to establish a Russian-Ukrainian border. Subsequent efforts to start negotiations have foundered on Ukraine’s demands for the immediate withdrawal of all Russian forces and Russian demands for recognition of its rights to occupied territory.

Now only success on the battlefield—and boots on the ground—will dictate the shape of peace.

War Crimes and Justice in War

Russia’s initial invasion of Ukraine was unjust. Russia’s continued aggression and warring in Ukraine are also unjust and its actions that result in death, destruction, and suffering are immoral. Moreover, Russian troops have violated international norms, laws, and treaties for conduct during armed conflict— widely acknowledged Jus in Bello principles that seek to limit the destructiveness of war, protect noncombatants, and prescribe the range or area where fighting occurs. 

Foremost among the principles of Jus in Bello is the necessity to protect the innocent—civilians, prisoners of war, the incapacitated or wounded—from harm. Russia is in clear violation of this unimpeachable moral imperative and humanitarian convention. The United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) reports 22,209 civilian casualties as of mid-March 2023: 8,317 killed and 13,892 wounded.

These indiscriminate attacks are being launched to no military advantage, simply to terrorize and demoralize civilians.

UN monitors in Ukraine have also documented deliberate attacks launched on civilian targets; indiscriminate attacks on civilians, the massacre of unarmed civilians; and the torture, rape, and murder of women and children. As Russian forces withdrew from Kyiv, they left in their wake not only the detritus of war but the bodies of their victims, some mutilated and burned. In the town of Bucha, the UN has documented the massacre of 458 Ukrainians including dozens who were lined-up, with their hands bound behind their backs, and summarily executed at point-blank range. The bodies of more than 1,200 civilians; mass graves; and evidence of torture, sexual violence, and of civilians forced to become human shields were found by Ukrainian officials and UN personnel in the greater Kyiv region after Russian forces withdrew.

Widespread reports of the forced deportation and outright abduction of Ukrainians, including thousands of children, have been confirmed recently by investigators from the International Criminal Court (ICC). The ICC subsequently issued unprecedented arrest warrants for both Putin and Maria Alekseyevna Lvova-Belova, Russia’s Commissioner for Children’s Rights. In a statement, the ICC said “there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.” Moscow, however, does not recognize the court’s jurisdiction or extradite Russian citizens. 

The actions of Russian forces, indeed the Russian plan of battle, also fail to meet the principle of discrimination, that is, to determine lawful military targets for the use of force. The widespread use of massed artillery bombardments and erratic missile strikes on cities, coupled with the deliberate targeting of schools, hospitals, and large residential buildings, has resulted in heavy civilian casualties. Nearly 140,000 buildings have been destroyed—most of them private homes and residential apartment buildings—leaving an estimated 3.5 million Ukrainians displaced or homeless in the country. The World Health Organization (WHO) counts 7.9 million Ukrainians as refugees throughout Europe. 

As early as April 2022, the WHO documented 91 separate attacks on Ukrainian healthcare facilities, patients, and healthcare workers. Those attacks on inviolate targets have continued unabated. In December, the Kyiv School of Economics (KSE) reported that 978 medical facilities, more than 1,200 schools, and nearly a thousand daycares and kindergartens had been wrecked. UNESCO reports that 242 Ukrainian cultural sites have been destroyed; KSE puts this figure at 775 sites. The World Council of Churches claims that nearly 500 churches, synagogues, and mosques have been destroyed. 

These indiscriminate attacks are being launched to no military advantage, simply to terrorize and demoralize civilians. The UN High Commissioner for Human Rights has called the loss of life from Russian use of indiscriminate weapons and tactics “indisputable.” These attacks are violations of the Geneva Conventions of 1949, and of humanitarian law, that can and should lead to the prosecution of war crimes. For this to happen, the ICC would need to expand its current investigations to look across the battlefields for all evidence of violations of the laws of armed conflict, examining both soldiers who committed these crimes and the officers who permitted them to occur. 

It would also require an independent investigation of reports of mistreatment of prisoners of war. The HRMMU has conducted hundreds of interviews with both Russian and Ukrainian POWs and has compiled credible evidence of mistreatment, torture, mutilation, summary execution, and murder. Ukraine has reportedly begun a criminal investigation into the mistreatment of Russian prisoners. OHCHR has called for an investigation of allegations of mistreatment of POWs “in a manner that is—and is seen to be—independent, impartial, thorough, transparent, prompt and effective.”

There are ample grounds here too, and a precedent, for the UN to establish an International Criminal Tribunal to investigate Putin’s conduct and, as warranted, indict him for violations of the law and customs of war. The International Criminal Tribunal for the former Yugoslavia was established by the UN in 1993 and subsequently indicted 161 persons, including Radovan Karadžić and Slobodan Milosevich. Both heads of state stood trial; Karadžić was convicted and is serving a life sentence of imprisonment (the proceedings against Milosevich were suspended when he died in custody).

A criminal tribunal for Ukraine—seeking justice, not revenge—can be convened. The Council of Europe has called for such a tribunal to investigate “the crime of aggression . . . committed by the political and military leadership of the Russian Federation,” a move supported by the European Commission, the NATO Parliamentary Assembly, and the government of Ukraine. Even if such a tribunal were empaneled, neither Putin nor those culpable for waging Russia’s war of aggression will likely ever stand trial. Putin, the architect of the war, may be indicted and he may be tried in absentia. He will remain, however, beyond the reach of just punishment.

Meting out justice for all those tens of thousands of criminal victims of the war will never be wholly accomplished, even when this war is over.

Reconstruction and Reconciliation

Ukraine is in ruins. Documented damage to the nation’s infrastructure amounted to more than $600 billion by late 2022—the country’s entire annual GDP is estimated at $200 billion. The cost of destruction will continue to rise as fighting rages in the eastern and southern portions of Ukraine, and will become monumental should the Russians launch another drive on Kyiv from the north and press forward in the south. The destructiveness of this war is exacerbated by attacks that reach beyond military targets to strike dual-use facilities like roads, bridges, and the energy infrastructure, and by indiscriminate attacks with wide area effect weapons (cluster munitions) that wreak havoc on the civilian population.

In the immediate aftermath of the liberation of Kherson, hundreds of Ukrainian citizens were arrested, suspected—justly or unjustly—of having actively aided Russian forces during the occupation. Overnight, billboards were erected throughout the city asking people to help police and the SBU identify collaborators.

When this war ends—as all wars must end—and some tenuous peace is restored, the monumental tasks of reconstruction of Ukraine will need to begin. Unless there is regime change in Russia, it is impossible to foresee circumstances under which Moscow would agree to any negotiated terms that enure the benefit of Ukrainian reconstruction. Neither restitution (meeting the obligation to return property carried off from occupied territory) nor reparations (making payments to cover the cost of loss or injury) would be forthcoming. These are terms imposed on defeated nations. Germany, for example, signed treaties after World War II with several European countries and with the Jewish Claims Conference to compensate victims of the Holocaust. Ending in 2005, German payments totaled more than $93 billion in today’s dollars. Russia under Putin will never admit defeat. Absent enormous economic assistance from abroad, Kyiv will shoulder the heavy post-war burden of reconstruction.

Kyiv faces even more daunting conciliatory issues with its own citizens. Large portions of southeast Ukraine are home to Russian-speaking Ukrainians, many of whom feel an enduring affinity for Russian culture and traditions. The Kharkiv and Kherson regions have, for years, been fertile ground for pro-Russian political parties. After the invasions, Kyiv banned pro-Russian political parties, and police and agents of the Security Service of Ukraine (SBU) undertook investigations of Ukrainians suspected of aiding Russia. In the immediate aftermath of the liberation of Kherson, hundreds of Ukrainian citizens were arrested, suspected—justly or unjustly—of having actively aided Russian forces during the occupation. Overnight, billboards were erected throughout the city asking people to help police and the SBU identify collaborators.

This approach to rooting out collaborators is rife with the potential for abuse, especially so by informants motivated by ancient insult or injury, jealousy, or spite. In Ukraine it is a crime to collaborate; the criminal statute is so broad it includes activities in the informational, educational, political, military, administrative, economic, and labor arenas. While much of Ukraine’s civil and criminal courts system is still functioning, hundreds of new cases will likely overwhelm investigators, prosecutors, jurists, and defense counsel. Costly and polarizing litigation could stretch over years, even decades.

Kyiv could now take the long and difficult road to forsake revenge and avenge injustice and wrongs in open, honest, and forthright criminal prosecutions. Or, when this war is over, Kyiv could embrace amnesty.

The Coming World Disorder

Russia’s invasion of Ukraine sent shock waves through Washington and the capitals of Europe, and the ripple effects are being felt in Asia and the Pacific. Though widely anticipated and forecast by western intelligence, the Russian attack still took many of the world’s political leaders by surprise. Then, Ukrainian resistance proved both fierce and successful. The prevailing western assessments of Russian military capabilities were seriously flawed, as were the predictions that Russian victory would be obtained quickly and cheaply. Defense aid flowed into Ukraine from the United States and 34 nations around the world and 10 other nations provided non-lethal assistance. The Russo-Ukrainian War has drawn neutral nations towards the maw of war.

Now, Moscow’s foreign relations with the West are in tatters. The economic links forged in the post-Cold War era have been broken. While Russia has weathered the first round of energy and sanctions, the long-term consequences of these and newer sanctions, the loss of access to capital markets, the exit of western businesses from Russian markets, and the closure of western markets to Russian trade, will stifle the country’s economy for years to come. 

Europe has done more than shun Russian energy. European heads of state now recognize that Putin’s grand ambition is to reconstitute the Soviet empire. More than three decades of Western overtures to Moscow, and broad opening to trade and participation in international forums, have come to naught. Russian ambition has been unmasked. In a parliamentary session of the Organization for Security and Co-Operation in Europe, dozens of delegates walked out of a speech by the Russian delegate. Russia has been expelled from the G7 economic forum, and calls are coming forth to end Russia’s participation in the G20. European parliaments are taking a hard look at their defense spending, prompted by the lessons learned on the battlefields of Ukraine.

Post-war conciliation with Russia is possible, but the probability of that occurring diminishes day by day until this war is over. Russia has now made a permanent place for itself among the pariah states of the world.

An End of War

The war in Ukraine has its roots in the long enmity Moscow has harbored towards the West and in Putin’s startling political miscalculations. Moscow went to war for an unjust cause, seeking to invade and capture the sovereign territory of another nation. This was not a war made as a last resort; this is a war of naked aggression. The Russian military and the Russian people are now yoked to Putin’s remorseless ambitions. This war will go on.

Russia is waging war in contravention of existing norms of international behavior and in clear violation of the UN Charter and continues to make war in the face of an order from the International Court of Justice to immediately suspend all military operations in Ukraine. Russian forces have repeatedly violated the international laws of armed conflict. Civilian noncombatants have been deliberately targeted, killed, wounded, and displaced, and their homes, hospitals, schools, and churches have been indiscriminately attacked and bombarded for no military purpose. These deliberate attacks on the innocent are not merely violations of humanitarian law, they are unconscionable and immoral. 

The international community has only imperfect measures with which to confront Russia’s aggression and prosecute all war crimes. The countless victims of this war will never be made whole by treaties, laws, conventions among nations, or by future criminal prosecutions. The vast scale of this injustice will dwarf even the most arduous efforts to prosecute the perpetrators. The aggressors who planned, launched, and continue this war will very likely never be punished.

A perfect peace marked by enduring order, justice, and conciliation will be out of reach when this war is over.

But if the rule of law is to ever prevail, prosecutions for war crimes must and should occur, not just when this war is over, but even as the fighting continues. Open, transparent, fair, and prompt prosecution of war crimes may not find justice for all, but prosecution powerfully demonstrates the viability of international humanitarian law and the moral resolve to protect the innocent. Trial in absentia for aggression and other war crimes may not bring the aggressors in this war to the bar of justice, but a guilty verdict irrevocably condemns them for their actions. Reparations to rebuild shattered Ukraine must be found, even if they are found wanting. Reconciliation among those aggrieved and those who have caused grievances—forgiveness and amnesty—will be difficult to achieve, but enmity and irreconciliation have always been fertile grounds for future conflict. 

As imperfect as these measures may be, they remain the best tools by which the international community can reify its conventions for war—and for the peace that must be made when the war is over.


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