Crime and Punishment Lite

All crimes merit punishment. Russia invaded the independent, internationally recognized country of Ukraine on February 24, 2022. Hundreds of thousands have been killed. Over eight million Ukrainians have been internally displaced; more than eight million have fled the country. The devastation within Ukraine is calculated in the hundreds of billions of dollars.  Russia’s invasion of Ukraine and its conduct in the war are examples of egregious violations of international law. Russia merits more than ineffective sanctions and superficial suspensions and exclusions.

Despite condemnation of Russia for the invasion (jus ad bellum) as well as for its conduct in the war (jus in bello), nothing has changed in Russia’s behavior since the invasion over 550 days ago. Those responsible for war crimes, crimes of aggression, and crimes against humanity have yet to be punished.

There have been several non-violent attempts to punish Russia. Sanctions have been imposed on the state of Russia as well as on certain Russian citizens. Russia and Russians have been excluded from international organizations and sporting events. The most impressive legal action so far has been the International Criminal Court’s issuing an arrest warrant for Russian President Vladimir Putin in March for war crimes, accusing him of personal responsibility for the abduction of children from Ukraine to Russia. Putin has been indicted, but not punished. As a jurisprudential precedent, the lesson seems to be that there is little punishment for major violations of international law.

Sanctions have been ineffective, and there have been many. According to the Atlantic Council’s new Russian Sanctions Database, “since the Russian invasion there have been more than 12,900 designations against Russia. 75 percent of them target individuals and around 24 percent of them target entities.” Covered in this database are the United States, the United Kingdom, the European Union, Switzerland, Canada, Australia, and Japan. Data in the database was last updated on April 17, 2023.

What has been the effect? While Putin brags about Russia’s economic resilience, there is no question the Russian economy has been effected, despite increased oil and gas exports to India and China. But the economy has not bottomed out, as was hoped for by those imposing sanctions. The argument that imposing sanctions would so damage the Russian economy that Putin would halt the fighting has failed. Although the rouble has lost considerable value, the war has not stopped.

Moreover, sanctions target the wrong people. Instead of putting pressure on rulers to change policies, sanctions mostly effect general populations. There are numerous historical examples. According to the U.N. Department of Humanitarian Affairs, 20% of the population in Iraq, or about 4 million people, experienced prolonged suffering and extreme poverty because of U.N. sanctions. As for sanctions on Libya, a U.N. panel of experts in 2021 said an arms embargo imposed on Libya in 2011 remains “totally ineffective,” adding that civilians continue to suffer human rights violations, according to U.N. News. “For those Member States directly supporting the parties to the conflict, the violations are extensive, blatant and with complete disregard for the sanctions measures,” the experts noted. Sanctions against the government of Afghanistan have also had devastating effects on civilians while the Taliban remain in power.

And in Russia? A Russian friend recently recounted a visit to his family near St. Petersburg. “Life goes on as if the war was not taking place,” he said. “People were out in the cafés and restaurants as if nothing unusual was taking place.”

“To be sure, there is no reason to think that Russia’s economy is on the brink of collapse,” Sergei Guriev, Provost of Sciences Po in Paris, has argued, although he does believe the sanctions have had some effect on the Russian economy. However, they have had no effect on Russia’s funding the war since “Putin is managing to circumvent trade sanctions,” he wrote.

This was recently confirmed by officials. “Russia has overcome the sanctions pressure and now produces even more missiles than before the full-scale invasion of Ukraine,” according to The New York Times, citing unnamed Western and Ukrainian officials.

If sanctions have not been effective in stopping Russia’s aggression, what about exclusion and suspension?

Here in Geneva, various U.N. agencies have tried different ways of punishing Russia. The World Trade Organization (WTO) has excluded Russia from certain talks related to its Most Favored Nation status, but has not suspended it or totally excluded it. (Russia became a WTO member on August 22, 2012, after 18-year negotiations.) Russia lost its observer status at the European Organization for Nuclear Research. The International Labour Organization decided to suspend its cooperation with Russia, except when related to humanitarian assistance. The U.N. Human Rights Council suspended Russia; it quit the Council soon after its suspension.

Internationally, the Russian president did not attend the recent Group of Twenty (G20) meeting in New Delhi, India, with no obvious negative consequences. The summit’s final statement avoided condemning Russia for the Ukraine war. Meekly, it said: “We call on all states to uphold the principles of international law including territorial integrity and sovereignty, international humanitarian law, and the multilateral system that safeguards peace and stability,” the declaration said. “We … welcome all relevant and constructive initiatives that support a comprehensive, just, and durable peace in Ukraine.”

The G20 statement was not even a slap on Putin’s wrist.

There are those who say that violators will eventually be punished. Even if that happens, it will come about because of military strength when Ukraine and its allies have inflicted enough pain on the battlefield for Russia to negotiate. Alas, that will only confirm that non-violent means to punish egregious violations of international law do not work.

What to do seeing that non-violent punishments have not worked? Andrew Clapham, Professor of Public International Law at the Geneva Graduate Institute and former representative of Amnesty International to the U.N. in New York, shares my frustration about the failure of non-violent punishments. He has an idea to target individuals and companies which aided and abetted aggression: “I think that it is time to think about widening the net beyond the war criminals and leaders of the aggression to encompass those who knowingly facilitate the crimes through their assistance in the commercial sphere. The topic of my upcoming speech at the Nuremberg Court is ‘White Collar War Criminals,’” he wrote me.

A novel idea. But a confirmation from an eminent legal scholar that punishment lite is not working.

Daniel Warner is the author of An Ethic of Responsibility in International Relations. (Lynne Rienner). He lives in Geneva.