In his opening remarks before the Nuremberg Trials, Chief United States Prosecutor, Justice Robert H. Jackson, said:
“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
Yet here we are, some 77 years after the Nazis were defeated, with the question being asked again, can civilization tolerate Putin’s Russia, who is now repeating some of these very same crimes, in their brutal, devastating and merciless assault on Ukraine?
The irony here is inescapable that, as one of the major allied powers, then the Soviet Union, was also represented in the prosecution of Nazi war criminals in Nuremberg. Today, we are seeing a role reversal, with Vladimir Putin and the Russian leadership that ought to be sitting in the dock of the accused, for these gravest of crimes on mankind.
Thus far, in just over five weeks of relentless war and savage violence, we have already witnessed what appears to be war crimes and violations of international law committed by Russia on an industrial scale, including the targeting or indiscriminate firing at civilians or civilian infrastructure, use of cluster bombs, crimes against humanity and even possible genocide.
From Mariupol to Bucha, Ukraine has become one mass war crime scene wherever you turn.
It is impossible not to look at the images from Bucha, including mass graves and civilians with their hands tied, summarily executed by Russian forces at point blank, and not be sickened to your very core. If this is not the most flagrant violation of international law, then what is?
As of the time of writing, a number of international legal proceedings have already commenced, including an investigation by the International Criminal Court (ICC) Prosecutor, as well as cases brought against Russia by Ukraine, before the International Court of Justice (ICJ), as well as the European Court of Human Rights (ECHR) in Strasbourg.
Of these, the ICC is the most important, because it has the power to investigate, prosecute and jail individuals.
The ICC was created in 2002, as a court of last resort, to ensure that individuals who carry out the most egregious crimes, such as those prosecuted in the Nuremberg Trials, do not remain immune for the actions.
Neither Ukraine nor Russia however, are party to the Rome Statute, the governing document which established the ICC’s jurisdiction over war crimes, crimes against humanity, genocide and the crime of aggression. However, pursuant to Article 12 of the Rome Statute, Ukraine has submitted a declaration acquiescing to ICC jurisdiction for crimes committed any time on its territory after February 2014. In theory, this could include jurisdiction over individuals from President Putin, Foreign Minister Lavrov, Russian military forces and all those complicit in the enabling and carrying out of the alleged crimes.
On 28 February 2022, ICC Chief Prosecutor Karim Khan, announced his intention to investigate the situation in Ukraine, “as rapidly as possible”, saying he was “satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” However, this is a process that may take years and if Putin (or other Russian individuals) were ever charged, they would need to be arrested in another state that accepts the court’s jurisdiction.
In the meantime, an ad-hoc international tribunal may also be established, similar to the one over former Yugoslavia, with broad ranging powers, to investigate war crimes, including the crime of aggression and genocide, and to jail perpetrators provided that they are physically present in the court’s power.
Putin and other Russian individuals may also be prosecuted in the national courts of other states, under a principle known as ‘universal jurisdiction’, which allows foreign courts to prosecute individuals for the most serious of crimes in international law, such as crimes against humanity, war crimes and genocide, even when the alleged crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state.
The exercise of universal jurisdiction, often seen as the jurisdiction of last resort designed to prevent impunity by perpetrators of war crimes, is also predicated on the basis where countries lack adequate judicial systems to prosecute these crimes, or are either unwilling or unable to do so in good faith, as may be the case in Russia, given the Russian’s courts lack of independence and Putin’s control of the judicial system.
In January of this year, a German court sentenced a former Syrian intelligence officer to life in prison for crimes against humanity, under the universal jurisdiction principle, after having found him guilty of overseeing the murder of at least 27 people and torture of at least 4,000 at a Damascus prison.
The brutal cold reality is, if the principles set forth at Nuremberg and codified in the existing framework of international law are to have any meaning and not be merely pieces of paper, they must be unwaveringly exercised, in order that perpetrators of the most heinous crimes of mankind, do not avoid impunity.
The case against Russia will, therefore, be a litmus test for the international order and rule of law if Putin and his enablers will not be held to account for the mass crimes committed in Ukraine.
The views expressed in this article are the author’s and not necessarily those of the Kyiv Post.
