Filenews 11 March 2022
Gordon Brown, former Prime Minister of the United Kingdom
Such is the gravity of Russian President Vladimir Putin's attack on Ukraine that an international prosecutor should be appointed and a court created to try him and his associates for their crimes.
Ukrainian President Volodymyr Zelensky and his foreign minister appealed to the world this week for action based on the principles that guided Allied countries in 1942, when they gathered in London to issue a decree entitled "Punishment for War Crimes."
Just as the Allies in World War II swore 80 years ago to bring Nazi war criminals to justice, Ukrainian Foreign Minister Dmitro Kuleba is today calling for Putin to be brought to justice for the same kind of "crimes against peace".
With his armies encircling Ukraine's major cities and bombing their inhabitants indiscriminately, Putin's list of atrocities is growing: murders of civilians, including children, repeated violations of ceasefires and respect for humanitarian corridors, nuclear threats and preparations, as well as threats to execute civilians who will not bend to his dictates - in plain sight.
Vacuity
However, a loophole in international law prevents the International Criminal Court (ICC) from starting to conduct an investigation and prosecute Russia for the most basic war crime of all: its war attack, even though the unleashing of an aggressive war is recognised as a crime in the national legislation of many countries (including those of Russia and Ukraine).
The ICC has the power to investigate crimes against humanity, war crimes and genocides. However, Russia has never signed an amendment which establishes war attack as a crime and is therefore not bound by it. And this prevents the international community from moving faster and simpler for Putin to account for waging an illegal war.
Thus, while the United Nations General Assembly voted overwhelmingly that the invasion of Ukraine lacks any legal justification and that it is an international offence of aggression in violation of the UN Statute, there is no obvious legal route to accuse Putin of this heinous offence.
The European Court of Human Rights can investigate violations of civil liberties and the UN International Court of Justice can consider Ukraine's complaint against Russia, but the aggressor cannot be charged as was the case with the establishment of the international military tribunals that eventually led to the Nuremberg Trial.
The role of the U.S.
In the spirit of the 1942 agreement, I and more than 100 former and current European leaders and internationally known lawyers urge the US to stand by us to jointly support the establishment of a special court to try Putin for his crimes related to the attack on Ukraine.
There is an American precedent that could encourage President Joe Biden to take advantage of the moment. In 1993 and 1994, President Bill Clinton pushed for and succeeded in setting up special tribunals to deal with war crimes in Yugoslavia and Rwanda.
The pressure for such a court is, as the Ukrainians have told us, important in boosting the morale of a besieged but resilient people. Although lives are being destroyed, Ukraine's unity seems indestructible. Hearts may break every hour of the day, but their determination has proved unbreakable. The buildings are razed to the ground, but the spirit of the people holds up the morale of the whole world. We, in turn, must lift them higher, not only in words, but also in deeds.
Message
The establishment of a court would also send a message to Putin and his close circle that their brutal criminality will not escape trial and punishment. It would sow fear in Putin's inner circle, if not in Putin himself. Just as those who, complicit in Nazi crimes, began to distance themselves from their leader and seek private "exit" agreements, Putin's associates could begin to cooperate with the forces of international justice.
The way forward is for a group of states to support Ukraine in setting up such a court. As a first step, we must list the crimes of continued aggression as they take place.
An office in The Hague (seat of the ICC) should be staffed to collect evidence and explore how best to organise this path to justice. A small number of qualified personnel should cooperate closely with the ICC and, since the crime of war attack is already widely understood in its content, move quickly. By the summer, a court could operate and Putin indictment could have been brought.
Nothing less
"The great strategy looks beyond the war, to the subsequent peace," the historian Basil Liddell Hart has written. So, even at a time when Ukraine is being hit by bombs and bullets, it is right to think today about what is to come and how to achieve better reconciliation, peace and justice for the Ukrainians.
From 1942 to the present day, the words expressed in that Allied Decree have never been more apt. Our aim must be, they said at the time, 'to ensure the punishment, through organised justice, of the guilty or responsible' and 'to satisfy the sense of justice of the civilised world'.
The people of Ukraine deserve nothing less.
Source: BloombergOpinion
