Zelensky visits Bucha: Russians "treat humans worse than animals" 0:46
(CNN) ––
When the war criminal is a world leader, how do you negotiate with him?
Mounting evidence of Russian atrocities in Ukraine –– over the weekend, it was in the city of Bucha, on the outskirts of Kyiv–– prompted US President Joe Biden to say Monday that Vladimir Putin must be court.
But that truth is complicated by the fact that this war is very likely to end through negotiations with Putin, whose control of power in Russia seems absolute.
Russian war in Ukraine: breaking news and invasion news
Building the case against Putin for crimes in Ukraine
We have already written here about the difficulty in international law in holding someone like Putin, the leader of a nuclear-armed, gas-producing nation, accountable.
That was before the horrific images that showed dead civilians on a street in Bucha.
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Joe Biden calls the atrocities in Bucha, Ukraine, a "war crime"
Biden had previously said that he felt Putin was a war criminal.
And reports about Bucha led him to say that a methodical case must be put together to bring the Russian leader to trial.
“We have to get all the details so that this can be a real war crimes trial,” Biden told reporters in Washington.
"This guy is brutal and what is happening in Bucha is scandalous and everyone has seen it," he insisted.
Putin is the key to ending violence in Ukraine
When Ukrainian President Volodymyr Zelensky toured the disaster in Bucha, he saw the obvious.
"It's very difficult to negotiate when you see what they've done here," Zelensky said.
A portion of CNN's report on the matter:
Wearing a bulletproof vest and surrounded by security, (Zelensky) spoke about "key leaders of countries who made the decisions about whether Ukraine should be a NATO member."
"I think they should come here and see how these games end, this flirtation with the Russian Federation," he said.
What are war crimes and who can be tried?
At some point, Zelensky will likely have to negotiate directly with Putin to end the war.
Earlier in the weekend, Ukrainian negotiators reported that they were nearing the point where "direct meetings" between the two leaders might be possible.
Create a "justice mechanism"
Bucha, massacred by passing Russian forces 2:13
In other remarks on Sunday, Zelensky said he was also seeking a new "justice mechanism" to investigate crimes committed by Russian soldiers on Ukrainian soil.
"This mechanism will help Ukraine and the world to bring to concrete justice those who triggered or in any way participated in this terrible war against the Ukrainian people and crimes against our people," he said.
ANALYSIS |
Everything you need to know about war crimes and how Putin could be prosecuted
Officials from the European Union, which Ukraine also wants to join, have said they have set up a joint investigation team with Ukraine to investigate Russia's alleged war crimes.
All this adds to the efforts of the International Criminal Court, which has started its own investigation into Russian activities in Ukraine.
Putin's protection amid the war in Ukraine
Now, Putin's power in Russia looks strong, for now.
Which makes it almost impossible to bring him to trial, as Biden suggests, according to Kenneth Rodman, a political scientist at Colby College who has studied war crimes and the ICC.
Hundreds of Ukrainian children lost their childhood to the war 1:06
In all of the above cases, “in order to prosecute someone, you actually have to defeat them or they have to be overthrown in some kind of coup or political process,” he explained to me in a telephone conversation.
That was the case for Nazi and Japanese leaders after World War II.
Also from the Bosnian, Serb and Rwandan leaders of the 1990s.
He had to flee from the Nazis as a baby.
Now this Ukrainian Holocaust survivor has to flee her home again
"If they haven't been beaten, you have to negotiate with them," Rodman warned.
Beyond immunity for world leaders
The agreement that created the International Criminal Court -- the Rome Statute -- not only prohibits trials in absentia, but also appears to give ruling leaders immunity from prosecution, according to Rodman.
I asked a former ICC official, James Goldston, who is now executive director of the Open Society Justice initiative, if the world has the mechanisms to prosecute someone like Putin.
He agreed with Rodman that heads of state are generally granted immunity from prosecution.
ANALYSIS|
The recent atrocities in Ukraine were inevitable... and they won't be the last
But Goldston shared with me a passage from the Rome Statute: "It should apply equally to all people without any distinction based on official position. In particular, official position as Head of State or Government."
Goldston added that the International Criminal Court could use this to justify a case against Putin.
There are also proposals to establish a special international body focused specifically on aggression against Ukraine, Goldston said.
ANALYSIS |
Images of dead bodies of civilians lying in the streets of Bucha, Ukraine, shock the world
Multiple ideas have been suggested: a state could try to hold its own trial against Putin under the international legal theory of "universal jurisdiction."
Germany did this when it tried a former member of the Syrian regime.
Or the United Nations could set up a special court specifically to look into the actions of Russia and Putin.
Move up the chain of command
For now, any war crimes effort is likely to start at the lowest levels, with the Russians on the ground in Ukraine.
Expert trusts that Putin will be held accountable in court 1:32
Here is an excerpt from the email Goldston sent me:
There are many people who are responsible for the crimes that are now being committed in Ukraine. International criminal investigations often begin with the "crime basis" –– authenticated images, witness testimony, and other evidence relating to murder, torture, rape, or other prohibited crimes that may amount to war crimes or crimes against humanity–– and then continue up through a chain of military or political authority to prove the guilt of those who ordered, or knew about but did not prevent/sanction, the commission of such crimes.
Negotiating with 'bloody hands'
Accountability for the alleged actions of the Russians in Ukraine is one thing.
And stopping the war right now is another.
"The idea is to hold people accountable and end the culture of impunity that allows this type of behavior," Rodman said.
"On the other hand, ending civil conflict requires negotiating with people who have blood on their hands," Rodman told me.
And he pointed to the negotiations that the United States and others undertook with Serbian leader Slobodan Milosevic in 1995 or the negotiations between the African National Congress and the apartheid regime.
"It's a basic dilemma in international relations."
Could Putin be charged with war crimes?
3:44
This is a photo of Bill Clinton celebrating the Dayton Peace Agreement behind Milosevic.
Milosevic later died in jail while awaiting trial as a war criminal.
But only after he lost the elections in 2000 and fell from power in Serbia and Yugoslavia.
Goldston, the former war crimes prosecutor, said the need for accountability cannot be lost.
"Lessons from past conflicts overwhelmingly suggest that no peace will be sustainable if it is based on impunity for those most criminally responsible," he said.
War CrimesWar in UkraineRussia invasion of Ukraine