OPINION: How the “Crime of Aggression” Applies to Russia’s War Against Ukraine

The crime of aggression is often called the “mother of all crimes” or “the supreme international crime.” This is based on the concept that all other international crimes derive from the crime of aggression.

Both before and after Germany’s invasion of the Soviet Union during World War II, Soviet lawyer Aron Trainin proposed to criminalize the act of aggression. American international lawyer Beth Van Schaack emphasized that Trainin had been inspired by the idea that international law is not the law of force but a force for peace. He also insisted that the victorious nations should criminalize the act of aggression and establish a permanent international court.

What a paradox – the Soviet Union and progressive ideas on international law.

The Charter of the International Military Tribunal – issued on Aug. 8 1945, recognized criminal responsibility for waging an aggressive war, which became the main subject of the Nuremberg Trials. However, due to the politics of his state, Trainin was unable to clearly set out his case at meetings of the Commission that prepared the Charter and conveyed all his ideas through Czech envoy Bohuslav Echer.

Unlike in 1945, the Ukrainian idea of a special tribunal against the top leadership of Russia has explicitly defined “creators.” The idea has been in the works since late Feb. this year, when leading British international lawyer Professor Philip Sands QC published an article in the Financial Times setting out why we should create a special tribunal that can try the leadership of the Russian Federation for the crime of aggression against Ukraine.

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Ukrainian lawyers work a lot with our colleagues and international lawyers. Among them are the British (in particular, Sands, Dapo Akande, Aarif Abraham), Americans (e.g. Alex Whiting), and Australians (e.g. Cary MacDougall). Among Ukrainians, we can name Minister of Foreign Affairs Dmytro Kuleba, Mykola Hnatovskyi (currently a judge of the European Court of Human Rights) and Anton Korynevych – ambassador-at-large in the Ministry of Foreign Affairs of Ukraine – in particular regarding the issue of creating this special tribunal.

How would the tribunal work?

Firstly, it should be mentioned that no permanent or existing international judicial institution is endowed with jurisdiction over Russian high-ranking officials. The International Criminal Court (ICC) in the Hague is investigating the situation in Ukraine, however, it only exercises jurisdiction over three types of the most serious international crimes: the crime of genocide, crimes against humanity, and war crimes.

The crime of aggression against Ukraine cannot be considered by the court since neither Ukraine nor Russia has ratified either the Rome Statute of the ICC or special amendments to it. Similarly, because of its composition and the veto powers of its permanent members, we cannot expect the UN Security Council to determine that an act of aggression against Ukraine has occurred and refer the situation to the ICC itself.

We therefore need a special tribunal to complement the ICC. It would not create an alternative to the ICC but would complement the court in the context of jurisdiction over the crime of aggression against Ukraine.

The crime of Russia’s aggression against Ukraine has already been recognized by a resolution of the UN General Assembly. A special tribunal is, therefore, potentially the easiest way to prosecute Russian leaders. At the same time, it is important that members of the international community are willing to breathe life into this proposed tribunal.

Who would be the defendants?

If we recall the Nuremberg Trials, it was supposed that high-ranking officials, military commanders and other individuals, including entrepreneurs, who assisted Germany to re-arm after World War I would be put on trial. In the end, the only entrepreneur indicted by Nuremberg prosecutors was Gustav Krupp, whose firm, the Krupp Group, produced important military equipment for the Reich using slave labor.

Today we do not know where our future tribunal will lead, but we do know that Russian President Vladimir Putin is not the only one responsible for the terrible aggression against Ukraine. It is not only about the apparatus of the state and military – we need to look much further: to propagandists, oligarchs, businessmen and diplomats (the latter, for example after tweets to execute soldiers of the Azov regiment). But, of course, the key figures should be the representatives of the political and military leadership of the Russian Federation.

What steps have already been taken by the international community?

Currently, the idea of establishing a special tribunal for the crime of aggression against Ukraine is supported in two resolutions by the Parliamentary Assembly of the Council of Europe (PACE): a declaration of the NATO PA, a resolution of the OSCE PA, and a resolution of the Lithuanian parliament.

It is a mark of distinction that PACE became the first interparliamentary forum and powerful platform where the need for the creation of such a tribunal was officially stated in a resolution. Moreover, the tribunal’s future outline has already been constructed: it is possible to establish a tribunal based on an agreement with the Council of Europe with headquarters in Strasbourg and the main actors being the member states of the Council of Europe.

That concept is not perfect, but definitely worth considering and refining. We worked a lot on this resolution as the delegation of Ukraine to PACE. Additionally, the rapporteur on this issue, the deputy from Poland, Alexander Pochey, took into account all our reservations in such a way that the Ukrainian thirst for responsibility fit nicely into the legal canvas and was coordinated with the political positions of various delegations with a range of political preferences. That said, there should be no politics in the issue of responsibility for the breach of the peace in Europe and the murder of children and other non-combatants.

Conclusion

The Nuremberg Trials were one of the most significant manifestations of Power paying tribute to Reason – so said Robert Jackson, lead prosecutor for the U.S. at the opening of the trial.

We expect that the speech of the lawyer, still unknown to us, at the opening of the special tribunal on the crime of aggression by the highest political and military leadership of Russia against Ukraine, will surpass Jackson’s words and mark the point at which the international community insists “never again.” Only by severely punishing evil can you prevent its recurrence in the future.

Maria Mezentseva is a Verkhovna Rada deputy and head of the permanent delegation to the Parliamentary Assembly of the Council of Europe.

The views expressed are the author’s and not necessarily those of Kyiv Post.