Nuremberg in the 21st century

Can we make Russia accountable for the crime of aggression? – ask prof. Kevin HELLER

.One of the reasons why judges in Nuremberg after World War II described the „crime of aggression” as the supreme international crime was because it contains all the other crimes within it. In other words: we can expect, that when the crime of aggression is committed, it will lead to war crimes, crimes against humanity, and sometimes genocide. In the last 75 years since the Nuremberg trials, we haven’t experienced too much full-scale aggression involving one state against another. It is this direct violation of international law by Russia that is surprising and striking at the same time.

From the point of view of international law, the situation is quite clear. In accordance with article 2.4 of the UN Charter, the use of force against the political independence or territorial sovereignty of another state is prohibited. The dominant interpretation of this provision is that the use of force, no matter to what extent, is prohibited. It does not matter whether Russia calls it a „special military operation”, just like it does not matter whether NATO countries referred to Libya as „kinetic military action” or the war in Vietnam was referred to by the United States as a „police action”. The point is: the use of force by one state against another, without proper justification, is a violation of the prohibition of the use of force. Russia, by amassing 200,000 troops and crossing the Ukrainian border with the military, air force and tanks, left very little room for interpretation.

The same can be said about its justifications. In general, we can assume there are certain situations when the use of armed force against another country is justified. The most obvious is self-defense. A country which is the victim of an armed attack has the right of self-defense. If this state, acting in self-defense, uses force on the territory of the aggressor state, that doesn’t violate the prohibition of the use of force, because it’s a legitimate act of self-defense.

Russia provides three supposed justifications for its invasion. First, Russia claims it is exercising its right of self-defense against Ukraine. They do not claim they were in fact a victim of armed attack; they do not claim there was an imminent armed attack in the sense of the Ukrainian army approaching the Russian border. Their argument is based on a complete fiction: that Ukraine has conspired with the West, especially the United States, to develop Ukraine’s military capacity to the point where they could attack Russia. So Russia invokes a legitimate self-defense argument and then transforms it in a way that is completely unacceptable to any state in the world. The answer to that is quite simple: no state can exercise the right of self-defense for a hypothetical attack for which there is hardly any evidence. Such defensive action can be described as preventive self-defense, but even the United States, which has a long history of stretching international law, particularly concerning self-defense would not allow itself to openly argue such legal absurdity. Even Israel, which generally accepts preventive self-defense, would not do so. Thus, Russia’s self-defense argument has no factual basis.

The second justification concerns collective self-defense. A state that is the target of aggression may ask other states for help. Russia is using this argument when it claims it is acting in defense of the so-called People’s Republics of Donetsk and Lugansk, which are supposedly defending themselves against the aggressor state, Ukraine. First and foremost: Donetsk and Luhansk are not states and they do not become states simply because Russia says so. There are a number of conditions that a given political entity must meet to be recognized as a state, and Donetsk and Luhansk certainly do not meet these conditions. There is no doubt outside of Russia that these two entities don’t objectively qualify for statehood. So if they’re not states and they’re just part of Ukraine, they don’t have any right of individual self-defense against Ukraine (because they’re part of Ukraine). And if they don’t have a right of individual self-defense against Ukraine, they don’t have the right to ask Russia to engage in collective self-defense on their behalf. This argument of Russia is therefore also invalid.

The last reason Russia uses to justify its aggression towards Ukraine is the need to protect ethnic Russians from genocide committed by the Ukrainians. First of all: there is no genocide against ethnic Russians and there is literally zero evidence to that effect. And even if genocide did occur (And it did not!), what Russia is actually referring to is the right of unilateral humanitarian intervention. This is a concept that assumes one state can invade another state to protect civilians against their government, even without the blessing of the UN Security Council. However, there is almost no argument in international law that unilateral humanitarian intervention is lawful. We can only talk about it in the case of decisions made by the UN Security Council. In that sense the intervention in Kosovo was illegal and so was the invasion of Iraq. Likewise, an attack on Ukraine is illegal. In this case, Russia is not even invoking a legitimate exception to the prohibition of the use of force. They’re invoking an illegitimate one and still managing to make a mockery of it, since no facts actually support its application.

But if international law clearly indicates the complete lack of legal grounds for Russia’s actions in Ukraine, why is it still invoking them? Many people are saying the example of Ukraine shows the irrelevance of international law. There is a legitimate problem with international law about enforcement. We all know it is not easy to enforce international law. But if international law meant absolutely nothing then why would Russia even go to the trouble of trying to justify its aggression? Even if they are doing it just from the legitimacy standpoint or to craft a justification for their own citizens, they are still taking it into consideration.

Evidently, Russia’s invocation of international law is to sanction the invasion and protect it from liability for the aggression. That liability, in turn, can be divided into several dimensions: individual criminal responsibility, state responsibility and other negative consequences.

When we talk about general consequences, it must be acknowledged that Russia’s clear violation of international law met with an unambiguous response. The fact that this reaction covers countries from Japan to Poland, private enterprises and organizations, is extremely impressive. That proves international law is not only the provisions written on a piece of paper, but also embodies principles and values with which the international community as a whole clearly identifies.

When it comes to state responsibility, theoretically Russia should have to withdraw its troops, probably apologize, and pay reparations for breaking international law in the way it did. However, such responsibility is very difficult to enforce. That is really what is underlying Ukraine’s case against Russia at the International Court of Justice. Ukraine is trying to hold Russia responsible as a state for using a misreading of the Genocide Convention as a pretext to launch a full-scale invasion of its territory. The International Court of Justice has taken preventive steps, pointing out that Russia has likely violated international law and ordering that Russia as a state cease its military activity pending the rest of the case is playing out.

Finally, there is the individual criminal responsibility. Can Russian officials be prosecuted for their illegal aggression against Ukraine?

The answer is quite complicated. Right now, the prosecutor of the International Criminal Court, Karim Khan is investigating international crimes allegedly committed in Ukraine. If he concludes that there’s a reasonable basis to believe there is a Russian (or even Ukrainian) political or military leader responsible for those crimes or even a lower-level commander, he could issue an arrest warrant and all the states that are members of the court would be obligated to fulfill that warrant. So there is at least potential accountability for war crimes and crimes against humanity committed in Ukraine. The investigation is ongoing.

It is, however, more complicated to prosecute the crime of aggression. The ICC does have jurisdiction over the crime of aggression, but it has a very narrow jurisdictional regime, one that is very different from the jurisdictional regime that applies to war crimes, crimes against humanity and genocide. The biggest difference is that a non-state party (a state that isn’t a member of the court) cannot be prosecuted for aggression even if they commit aggression on the territory of a state that has accepted the ICC’s jurisdiction. So, whereas the court can investigate war crimes, crimes against humanity and genocide it can’t investigate Russia for the crime of aggression committed on the territory of Ukraine.

This is a very serious limitation. In fact, the only precedent when there was actually a conviction for the crimes of aggression was Nuremberg, where most of the defendants were accused of what we would now call crime of aggression (at that time it was called crimes against peace). So it is hard to persecute public officials for the crime of aggression, at least through the ICC. What then is the way forward?

If we want to hold Russia accountable for its illegal aggression – which I think we do, because we need to send a message to the international community, particularly to any potential would-be aggressors out there that this kind of behavior is not going to be tolerated – then we need to find a mechanism for it.

Ukraine does criminalize aggression in its domestic Penal Code, so it could prosecute a Russian political or military leader that it managed to capture. Furthermore, a number of states, including Poland, have initiated an aggression investigation on the basis of universal jurisdiction. Technically, there’s no reason why Poland, Germany or Sweden couldn’t prosecute a Russian official that they managed to capture.

However, I believe the best solution would be for Ukraine to create a new High Court in their specialized chambers, one that would be just for aggression. This could be a hybrid tribunal consisting of Ukrainian and international investigators, prosecutors, and judges. The jurisdictional basis for that tribunal would be the territorial jurisdiction of Ukraine. Ukraine has the right to prosecute Russians for aggression, since that aggression has been committed on its territory. So Ukraine also has the right to ask the international community to help it do that. We may call it a kind of collective legal self-defense.

.It is necessary for the international community to help fund and support such a Tribunal. In particular, I think the Council of Europe should step in and be the international organization that helps Ukraine create it. That solution has a number of advantages. Almost all of the states in the Council of Europe have a long-standing commitment to fighting crime of aggression. An overwhelming percentage of states in the world that have ratified the ICC’s aggression amendments are members of the Council of Europe. The overwhelming percentage of states in the world that criminalize aggression domestically are members of the Council of Europe. What’s more, all the Central and Eastern European countries, which have a particularly strong interest in prosecuting Russian aggression, are member of Council of Europe. I believe, therefore, that the accountability problem for Russian aggression has a European solution in the form of a Ukraine-based hybrid tribunal supported by the Council of Europe.

Prof. Kevin Heller