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Opinion | Document War Crimes in Ukraine (Even if Putin Never Faces Justice)

Delivering justice — collecting the evidence, securing an indictment, holding a fair trial — is hard, time-consuming and expensive. As such, few instances of war crimes lead to punishment. Though the I.C.C. can initiate prosecution on any act of genocide, crime against humanity or war crime on its own, a charge of the crime of aggression — the one most applicable to Mr. Putin and his lieutenants — would have to be initiated by the United Nations Security Council, where it would face a certain Russian veto. In addition, Russia does not recognize the I.C.C. and would not surrender suspects.

Ukraine also is not party to the treaty that established the court but has allowed it jurisdiction over crimes committed on Ukrainian soil. The United States, for its part, has its own history of hostility to the I.C.C., and when accusing Mr. Putin of war crimes, Mr. Biden did not make clear what forum should be responsible for prosecution.

Yet none of these hurdles should preclude a search for justice. Even if the process is difficult and stretches into months and years, it is important that history be left a forensic, credible, verified and judicially processed record of the specific crimes in Ukraine. Those responsible should be named, their actions specified, and if at all possible, the guilty should be locked away. The very fact that Russia is arguing that the atrocities were all concocted requires a detailed and incontrovertible judicial response.

The Biden administration and its allies have done an admirable job of puncturing the Kremlin’s propaganda with accurate intelligence. An authoritative record of war crimes would serve the same purpose for the future.

It would be good for the Biden administration to find a way to cooperate with the I.C.C. in collecting evidence, even if it is precluded by law from helping to finance the effort. There are other options: A special tribunal could be established without a U.N. endorsement, and several nations, including the United States, could claim universal jurisdiction and hold their own trials. But too many investigations would dilute the public impact of the legal process, and no tribunal carries the authority or mandate of the I.C.C.

However it is done, seeking justice against Mr. Putin and others responsible for war crimes in Ukraine is a goal for the longer term. Russia is not retreating. It is repositioning its forces for an assault in the east. And Russia’s participation in sputtering peace talks is looking increasingly like a ploy. The horrors of Bucha have prompted talk of offering Ukraine deadlier weapons and imposing yet more sanctions. These must be the focus of the West’s efforts to help Ukraine.

But it is also imperative to make sure that the horrific evidence of criminal atrocities on display in Bucha and so many other places is promptly collected while it is still there and that witnesses are questioned while their memories are still raw. Posterity must know what really happened. Justice must be given a chance.

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