Putin and Punishment

There’s a lot of talk these days about progressive prosecutors who seem to be acting like defense attorneys in refusing to indict certain criminals in the name of racial equity. They’ve decided to give marginalized racial groups a pass, which I suppose is preferable to indiscriminately arresting and incarcerating Jews, Asians, Indians and white people in order to achieve a prison population more representative of America.

Because the present composition of inmates smacks of prejudice.

There is this uneasy sense that the combination of bail reform, calls to defund the police, and lackadaisical prosecutorial decisions is menacing our streets, making America less safe, and introducing a different kind of unfairness into the legal system than existed before.

The one bright side is that our domestic laws are now more in line with the fecklessness of international law. With the world fully globalized, following the adoption of the League of Nations, which eventually became the United Nations, and the convening of an international tribunal in Nuremberg, and an International Criminal Court (ICC) in the Hague, humanity held out the promise that murderous heads of state and their overzealous henchmen will be held accountable. Few figured that these regal institutions of justice would turn out to be nothing but ceremonial shells.

These days, gangbangers and genocidaires sidestep legal systems that are not actually in the business of apprehending criminals.

The ICC just issued an arrest warrant for Russian President Vladimir Putin, accusing him of forcibly transferring Ukrainian children and teenagers into Russian territory in some grand wartime kidnapping scheme. More warrants are expected for the destruction of Ukrainian infrastructure and other acts of aggression.

That’s what you get when you start an unprovoked war against a neighboring state and pursue a scorched-Earth policy.

The problem is that the ICC has no jurisdiction over Putin, or any Russian, for that matter. Russia is not a signatory to the founding documents that created the ICC. Neither is the United States, China or Israel. Why voluntarily submit to the authority of a court if you will more than likely end up on the docket as among the very first defendants? It’s fine for Luxembourg, but not for Israel. The ICC lends legitimacy to kangaroo courts everywhere.

It can issue all the warrants in the world, and even indict Putin as a pedophile given the 16,000 children he apparently snatched. But without the enforcement mechanism to actually make an arrest, he will remain at large, his generals will continue to follow his orders, and bloodshed in Ukraine will go unabated.

How is that possible? What’s the point of a global body created to adjudicate crimes if the court is merely going through the motions with proceedings that are largely symbolic. The ICC does not conduct trials in abstentia. A head of state has to show up and answer the charges brought against him, or some other governmental leader needs to act as a sheriff and haul him before the bench.

Ousted Sudanese dictator, Omar al-Bashir, who committed genocide in Darfur, wanders the globe without fear of arrest—essentially taunting governments, daring them to treat him as a fugitive. Unvaccinated travelers are taking greater risks than he is, apparently. It took five years from when the genocide commenced before the ICC got around to issuing an arrest warrant, which, of course, was never executed. The worst crime in the world, apparently, is also the one least prosecuted.

It took five years from when the genocide commenced before the ICC got around to issuing an arrest warrant, which, of course, was never executed.

One would think otherwise. The Nuremberg Trials were largely a success and begged for a sequel. Governmental leaders were, for the first time, held personally responsible for the hideous crime of genocide. Indeed, it was given a new name, “crimes against humanity,” a whole cloth creation that brazenly violated the principle of retroactive punishment.

Moreover, following orders was no longer an acceptable defense because underlings now had affirmative duties to disobey illegal orders. And membership in the Nazi Party was evidence of guilt regardless of actions undertaken. The functionary who drove the truck carrying Zyklon B was to be treated no differently from the commandant who ordered that gas seep out of the showers.

A nation that operated with strict bureaucratic efficiency could not hide behind its piecemeal division of labor. The chain of command would not shield the culpable. Lawyers who drafted the laws that gave legal license to criminal behavior, and judges who enforced them, were found guilty, too.

But Nuremberg was a special case. The entire country was occupied by victorious Allies. The courtroom was on enemy soil, the proceedings staged to force Germany to confront the enormity of its crimes. A global manhunt was underway to track down Nazis who needed to answer for what they had done.

The Holocaust was unique, and so, too, was its aftermath.

Before the Holocaust, wars came to an end and losing nations accepted the terms for surrender. What happened to civilians was chalked up to casualties of war—including the plight of refugees. Prosecuting war crimes was not a priority.

The general principle was that nations had absolute sovereignty and leaders were not held personally responsible. Wars were concluded, and nations generally went back to their corners—minus deposed leaders and with the addition of redrawn borders. Humanitarian intervention and regime change were off-the-books outcomes.

Vladimir Putin is unlikely to ever see the inside of a jail unless his own people someday decide to place him in one. The loss of life in Ukraine, the abduction of children, the widespread annihilation of property—all are of a completely different order of magnitude than ransacking the inside of a CVS. But for onlookers, lawlessness and chaos—the suspension of rules and norms—is the same in any guise and language.

People lose faith in the law when badges and titles are proven to mean nothing. The social contract was ratified to reassure citizens that the right to revenge would give way to the rule of law. But that carries an obligation to enforce those laws, otherwise a nation—and a presumably united world—is in breach of that contract.

It’s impossible to ever return to normal unless order is restored and perpetrators are held accountable—even if justice looks more like the South African Truth and Reconciliation Commission than the Nuremberg Trials.

What remains true the world over, however, is that allowing outlaws to go unpunished may be the most morally unpardonable omission of all.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.”