As prosecutors gather evidence of thousands of alleged war crimes committed by Russian troops in Ukraine, a number of prominent figures have joined the Ukrainian government in calling for a new Nuremberg-style tribunal to hold Russia’s leaders accountable for the crime of aggression, which they claim is slipping through the cracks.
What are war crimes, and is Russia responsible for them in Ukraine?
Ukraine collaborates with a number of international organizations to prosecute war crimes, and it has already charged individuals through its own criminal justice system. Advocates for a special tribunal argue that prosecution for the crime of aggression may be the best way to ensure that Russian President Vladimir Putin faces punishment for the war.
“When bombs fall on your cities, when soldiers rape women in the seized cities,” Ukrainian Foreign Minister Dymtro Kuleba stated in March when the call for a tribunal was first made public. “However, this is the only tool of civilization available to us to ensure that all those who made this war possible will be brought to justice in the end.”
What is the nature of the crime of aggression?
Since 1945, four categories of international crime have been identified: war crimes, crimes against humanity, genocide, and the crime of aggression. Philippe Sands, a professor and international law expert, told CBS News that the last is defined as “waging a manifestly illegal war” in the founding Rome Statute of the International Criminal Court.
“Aggression is a leadership crime,” emphasized Sands. “It is only perpetrated by those with the authority and competence to launch or maintain an obviously illegal war. What this means in the context of Ukraine is that you are referring to Vladimir Putin, Sergei Lavrov, the Minister of Defense, the highest military and intelligence authorities.”
In Nizhny Novgorod Region, Russian President Putin observes the “Zapad-2021” military exercise.
In September 2021, Russian President Vladimir Putin (center), Defense Minister Sergei Shoigu (left), and Chief of the General Staff of the Russian Armed Forces Valery Gerasimov witness military exercises between Russian and Belarusian forces.
SPUTNIK/SERGEI SAVOSTYANOV/POOL VIA REUTERS
However, the current international justice system makes it difficult to prosecute Russia for the crime of aggression committed during the Ukrainian war.
In the instance of Russia’s invasion of Ukraine, the International Criminal Court lacks jurisdiction over aggression, absent an extremely unlikely referral from the United Nations Security Council, where Russia has veto power.
Sands stated, “There is a void in the international legal order.” International law recognizes the offense, but there is no method to enforce it.
Why is the crime of aggressiveness significant?
It may be difficult or even impossible to establish a direct connection between the alleged war crimes and crimes against humanity committed by Russian troops in Ukraine and Russia’s leaders.
Former British Prime Minister Gordon Brown, who supports the establishment of a tribunal for Ukraine, told CBS News, “I think it’s possible to find evidence linking Putin directly to war crimes and crimes against humanity, but there’s absolutely no doubt that Putin is guilty of this initial crime — what the Nuremberg trial authors called the ‘initial and fundamental and supreme crime’ — the crime of actually planning an aggression against a sovereign state.”
Brown stated, “The only way [Putin] will understand is if there is a strong response from the West, and part of that response is to inform him that he cannot escape unpunished for crimes that he has done and is responsible for leading.”
Mykola Gnatovsky, a law professor and advisor to Ukraine’s foreign minister, concurs that a forceful international response to Russia’s actions is required to demonstrate that the unjustified invasion of a sovereign state is unacceptable.
When the initiative to establish a tribunal was announced in March, Gnatovsky said, “We are dealing with a dramatic, tragic situation to a significant degree because in 2014, when Russia attacked Ukraine and seized parts of its territory, the international community was unable to provide a response strong enough to deter further aggression and hold the aggressor accountable.”
Limited backing for a court
Some major geopolitical powers, including the United States, have yet to expressly support the establishment of a special international tribunal to prosecute Russia for the crime of aggression.
“They’re concerned that if you create a special tribunal for one permanent member of the Security Council today, then another may be created tomorrow in regard to an allegation of a crime committed by the United Kingdom, France, or the United States,” Sands told CBS News. Iraq is, of course, the elephant in the room here.
Brown, who led the United Kingdom after the conclusion of its involvement in the Iraq war, stated that any special tribunal would not be retrospective.
2018 Hay Festival
Former British Prime Minister Gordon Brown speaks at the Hay Festival on June 3, 2018 in Hay-on-Wye, Wales.
DAVID LEVENSON/GETTY
In recent years, the crime of aggression was introduced to the statutes of the International Criminal Court, according to Brown. Therefore, we are not speaking retrospectively; rather, we are discussing actions based on decisions made by the international community quite recently.
James Goldston, executive director of the Open Society Justice Initiative, told CBS News, “Historically, the United States has been a leader on the international stage with regard to accountability for the most serious crimes, and, of course, the United States was one of the countries that formed the Nuremberg Tribunal after World War II.” In spite of this, it is not surprising that great countries, including the United States, may view prosecutions for the crime of aggression with some reluctance, given their own historical activity and desire to maintain freedom of action in the future.
The Open Society Justice Initiative has prepared a sample indictment that might be used to prosecute Russian leaders for aggression.
“If Putin is not prosecuted for aggression, I want history to reflect that the legal case against him was clear and that the failure was purely political,” said Rebecca Hamilton, an associate professor of law at American University in Washington, D.C., who co-authored an early version of a model indictment.
“It is criminal what Putin has done and continues to do to the Ukrainian people,” stated Hamilton. “It is as illegal now as it was in February when he initiated this war. And although the rest of the world is beginning to focus on other matters, the Ukrainians do not have the luxury of “moving on.””
