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Biden called Putin a ‘war criminal.’ That’s risky.

Here’s the downside to prosecuting former leaders

- March 24, 2022

Russia’s brutal war on Ukraine has many crying for justice. In the month since Russia’s invasion, the wheels of international justice are already turning. In early March, the International Criminal Court launched an investigation into possible Russian war crimes in Ukraine. And last week, the United States entered the fray when President Biden labeled Russian President Vladimir Putin a “war criminal.”

It is hard to disagree with Biden’s assessment. Putin’s forces have committed horrific abuses during their attack on Ukraine. In the city of Mariupol alone, Russia bombed a maternity hospital and a theater where more than 1,000 civilians were sheltering. For these crimes — and many others — Putin certainly deserves to face justice.

As appealing as it might be to imagine Putin behind bars, threatening him with prosecution carries significant risks. Most notably, it forecloses Putin’s ability to flee abroad in the event of a domestic threat to his rule.

Troubled rulers once had the option of exile

As recently as the 1990s, embattled rulers commonly went into exile once they were no longer welcome at home. Though they gave up power, unpopular dictators could live out their years in foreign safe havens. Their exile destinations often were luxurious: Filipino strongman Ferdinand Marcos retired to Hawaii, Haiti’s Jean-Claude Duvalier decamped for the French Riviera, and Uganda’s Idi Amin settled into a Saudi Arabian villa.

Exile thus traditionally functioned as a “golden parachute” for leaders facing potentially violent overthrow. While these golden parachutes were morally unappealing, they offered a way out of intractable political conflicts.

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The “justice cascade” makes exile difficult

But then something happened in the world of global justice. Although the founding of the ICC in 1998 was a landmark moment, social scientists call the broader development the “justice cascade.”

The justice cascade rests on two principles: individual accountability and universal jurisdiction. Individual accountability, which traces its roots to the war crimes trials after World War II, means that specific political and military leaders can be prosecuted for their abuses. Universal jurisdiction is the idea that some crimes are so heinous that they may be prosecuted by any government, not only by the ICC. It was under these principles that a Spanish judge ordered the arrest of former Chilean dictator Augusto Pinochet in London in 1998.

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Although the justice cascade deters some leaders from committing atrocities in the first place, it also makes it harder to get rid of those who do. As a recent book by one of us shows, since the late 1990s — when foreign and international courts first targeted heads of state for prosecution — oppressive leaders have become very reluctant to go into exile.

The logic is straightforward: Why give up power and flee abroad if doing so will ultimately land you in a jail cell? Instead, leaders culpable for war crimes now cling to power at all costs. Sometimes this strategy results in leaders fighting to the death, as with Libya’s Moammar Gaddafi, but other times they manage to reassert control, as with Syria’s Bashar al-Assad.

No foreign retirement for Putin

In Putin’s case, there is little chance that the sitting leader of a major nuclear power will be hauled in front of the ICC. But the ICC investigation and Biden’s “war criminal” label mean that a foreign retirement — or even foreign travel — is probably off the table. Indeed, the United States, despite its past disagreements with the ICC, fully supports a prosecution. Biden aides are working to cast Putin as “a pariah, an indiscriminate killer who should be standing trial at The Hague.” Putin, therefore, has good reasons to fear arrest and prosecution if he ever gives up power. Even if he holds on, it will be risky for him to travel beyond a handful of friendly countries for fear he might be detained.

This means that if the war in Ukraine continues to go badly and Putin is cornered by a popular revolution or a palace coup, he has no way out. Instead, he is likely to double down, gambling that he can hold on to power either by winning the war or brutally repressing the uprising. A cornered Putin would be exceptionally dangerous. Unlike previous leaders making fight-or-flight decisions, Putin has nuclear weapons.

Encouraging regime change?

Complicating matters is that branding Putin a war criminal is likely to encourage U.S. and allied policymakers and citizens to push for regime change in Russia — just as it makes it harder for Putin to leave. If Putin is guilty of horrible crimes, the thinking may go, how can he be left in power?

This is no idle fear. As the New York Times recently reported: “The White House says that ‘regime change’ in Russia is not on Washington’s strategic agenda. But in past cases when presidents have called national leaders war criminals — Saddam Hussein in Iraq or Bashar al-Assad of Syria — it has frequently been linked to an effort, covert or overt, to drive them from office.”

Changing the regime of a great power armed with nuclear weapons, needless to say, is extremely difficult. Early in the Cold War, U.S. efforts at covert regime change within the Soviet Union failed disastrously. Encouraging Russians to remove Putin on their own — as Sen. Lindsey O. Graham (R-S.C.) recently did — puts those Russians in extreme danger and is morally fraught. (When the George H.W. Bush administration encouraged popular revolts against Saddam Hussein in 1991, those were brutally crushed.) Putin is well protected against insider threats by a sizable praetorian guard. Regime change is therefore unlikely to succeed. Stoking sentiment for Putin’s removal only makes it harder to negotiate with him and resolve the crisis in Ukraine.

Find all TMC’s analysis of the Russia and Ukraine crisis in our new topic guide: Russia and its neighbors

Regardless of what the international community does, it’s doubtful that Putin will leave power, voluntarily or not. But threatening to prosecute him for war crimes lowers the probability even further. Policymakers might still reasonably conclude that trying to prosecute Putin is the most appropriate course of action. But they may wish to be aware of the risks involved.

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Alexander Downes is associate professor of political science at George Washington University and the author of “Catastrophic Success: Why Foreign Imposed Regime Change Goes Wrong” (Cornell University Press, 2021).

Daniel Krcmaric is assistant professor of political science at Northwestern University and the author of “The Justice Dilemma: Leaders and Exile in an Era of Accountability” (Cornell University Press, 2020).