The writer is professor of law at University College London, barrister at 11 KBW and author of ‘East West Street: On the Origins of Genocide and Crimes against Humanity’
Four days after Russia’s invasion of Ukraine, I wrote in this paper on the crime of aggression, introduced into international law during the negotiations of the Nuremberg tribunal, by a Soviet jurist back in 1945. Since then, aggression has been one of the four established international crimes, alongside war crimes, crimes against humanity, and genocide. The International Criminal Court in The Hague is currently investigating alleged crimes in Ukraine but has not yet issued any indictments.
The ICC cannot, however, exercise jurisdiction over aggression, a gap that prompted me to propose the creation of a special criminal tribunal to investigate Vladimir Putin and his acolytes for their waging of a manifestly illegal war, which is a leadership crime. I and others were concerned that it could be difficult to pin the other crimes on the leadership, and recognised that the only crime which reached the top table with any certitude was that of aggression. There continues to be serious concern, in the face of the horrors occurring across Ukraine, that the ICC investigations would culminate in proceedings against low-grade military, but allow the leaders — political, military, intelligence, financial — off the hook.
Over the past year there has been a growing recognition of the need to avoid impunity for the crime of aggression. A few days after my article appeared, Dmytro Kuleba, Ukraine’s foreign minister, said that Ukraine wanted a special tribunal. Within months, a coalition of core countries, led by the three Baltic States and Poland, joined forces, and the parliamentary assemblies of the Council of Europe and Nato and the European parliament added their support. Avaaz, a global activist organisation, organised a petition that soon gathered more than a million signatures, as academics debated the pros and cons of a first tribunal to address the crime of aggression since Nuremberg.
The momentum soon confronted the realpolitik: Britain, France, Germany and the US were — to put it mildly — initially trepidatious. It was perhaps not so much a matter of principle, more self-preservation: if a tribunal were to be created today in relation to Russia, then why not tomorrow in relation to us? There are, too, elephants in the room, not least Iraq and the many other conflicts to which the western powers turned a blind eye on matters of justice.
Yet here, on the territory of Ukraine, of all places, there can be no impunity for this most grave of crimes. Chile Eboe-Osuji, former ICC president, recently called for a Special Criminal Tribunal as “one of the building blocks in the never-ending construction project of international law”.
France was the first to shift, a few weeks ago, and the UK and Germany have since followed. The European Commission has announced the creation of a Centre for the Prosecution of the Crime of Aggression, and the Dutch government has offered to host an interim mechanism. There is no reason why international and Ukrainian investigators cannot be appointed now, with an interim prosecutor, to gather evidence and identify potential indictees.
An international tribunal will need a legal agreement, most likely between Ukraine and the UN or a European organisation. That can easily be drafted and texts are already circulating. It would be fitting for the agreement to be signed in Lviv, the Ukrainian city whose bloody history was handmaid to the ideas that, in the 1940s, became the new legal categories of crimes against humanity and genocide.
The costs will be peanuts, compared with the ICC. To be sure, there will be points to hammer out, on the structure and nature of the tribunal. Ukraine rightly favours a full-fledged international body, a call supported yesterday by Christoph Heusgen, chair of the Munich Security Conference, which meets this weekend — but no doubt creative minds will be able to do what is necessary. There will be technical legal issues to address — not least the question of whether a head of state should be entitled to immunity — and relations to be established with investigations and prosecutions at the ICC and in Ukrainian and other national courts.
This is a crucial historical moment. We were not prepared for the invasion, for the crimes and other horrors that have followed, including the grotesque and wholly illegal targeting of civilian infrastructure across Ukraine. Such acts have no military purpose, and are intended to break the will of the population (though they have precisely the opposite effect).
After the west’s failures on Georgia, Chechnya, Crimea and Syria, Putin believed it would blink. He was wrong. I am not starry-eyed about the power of the law but keenly aware of its limits and the need for military and diplomatic efforts. Yet if this aggression is not addressed, we may as well give up on the Nuremberg moment and the crime of aggression. Let the anniversary of this terrible moment in Europe be used to signal that crossing this line will not be tolerated and that there will be individual criminal liability, right to the very top.