There have been calls to create a Special Tribunal for the Punishment of Crime of Aggression in Ukraine, which demands have been backed by The European Union Commission Chief Ursula von der Leyen.
This at a time that the goal of regime change in Russia has not been realized and Russia has not been defeated. In the cautious words of General Mark Milley, a keen student of military history and chairman of the Joint Chiefs of Staff, the US highest-ranking military officer and the principal military advisor to the president, the secretary of defense and the National Security Council, of November 2022, “the war in Ukraine is unwinnable by purely military means,” and “the war will turn into a “protracted conflict … measured in years.”
The current events in Ukraine, a sovereign country, which entail atrocities by the aggressor and have a component of genocidal intent, are absolutely overwhelming. Russia has with the unjustifiable annexation of Crimea and Eastern Ukraine provinces violated the principle of national sovereignty and international law.
This unprovoked attack against the territorial integrity of Ukraine has no justification and is in violation of Article 2(4) of the UN Charter, the threat or use of force against the territorial integrity of another state.
According to the 1946 Nurnberg Tribunal definition, “To initiate a war of aggression… is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Following this logic, the aggressive war in Ukraine is an international war crime. But at the same time the war in Ukraine is no different from President George W Bush aggressive war, or crime of aggression against Iraq, or the Russian-German invasion of Poland in 1939, a preventive war: its justification was that a designated enemy might, at some point in the future, pose a serious threat.
In the case of the alleged international crimes in Iraq, the most blatant act of aggression since the Vietnam war, the accused would have been President George W. Bush and Tony Blair and their inner circle, like in case of the alleged crimes of aggression in Ukraine the accused would be Russian President Vladimir Putin and his inner circle.
Without question, the alleged international crimes in Ukraine deserve a calculated response, instead of the unlimited moral outrage found in the halls of power of the Parliament of the European Union. But the aftermath of this conflict, when this arrives, this does not need a repeat of the victor’s justice seen from Nuremberg, to Tokyo and Baghdad.
Least of all does the “international community “ need a Special Tribunal whose rules only apply to “others” and exclude our ”own” western acts of aggression, confirming the selectivity and self-serving approach to international law.
A Special Tribunal created by tainted hands and run by the same states that invaded Iraq, would confirm the international community cares about some international crimes more than about others. This are the same states (US, UK and France) which have been responsible for weakening and obstructing of the International Criminal Court (ICC) in The Hague.
Nevertheless, the alleged war crimes and crimes against humanity committed in Ukraine must be and are investigated and prosecuted, thereby complying with International Public Law, International Human Rights Law, International Humanitarian Law (Laws of War) and International Criminal Law.
Although “The International Criminal Court (ICC) is plagued by political interference, selectivity and carries the stigma of victor’s justice, the ICC is despite its imperfections the proper venue to address the alleged international crimes, which investigations are already being performed by Court.
But with the demands to prosecute Russia’s top political and military leadership for the crime of aggression against Ukraine, this pushes the court over the limits of its power.
However, there is an old truth, the victors of war write the history and the well-known proverbial expression says, “To the victor go the spoils” and one can add, at Nuremburg and Baghdad the gallows were built for the losers.
Ukrainian President Volodymyr Zelenskyy has urged the United States to support the creation of a Special Tribunal to try the Russian leadership with the crime of aggression for waging war on Ukraine.
“Peace is impossible without justice and justice is impossible without due process of law, and it’s indispensable to establish a Special Tribunal for the crime of aggression committed from Russia against Ukraine.”
Regarding this proposal, based on Ukraine’s desire for retribution and vengeance, there are doubts and concerns about the legality and the selective justice, in addressing these issues at a Special Tribunal.
International Criminal Court Chief Prosecutor Karim Khan has defended his institution’s ability to prosecute high-ranking political figures and opposed the idea of a Special Tribunal as suggested by the European Union Commission Chief Ursula von der Leyen, stating “The EU has misstated the law.”
Such a Special Tribunal, which Russia is unlikely to recognize or cooperate with is used as a platform for a political show-trial enables victors’ justice and seeks to weaken Russia as a nation.
This is not unlike how in 1918 and 1919, the British Prime Minister Lloyd George and the France Prime Minister Georges Clemenceau both wanted to bring the Kaiser, the Crown Prince and others to justice.
The Special Tribunal would target a small number of defendants, including the Russian political leadership and senior military leaders, that would likely have avoided facing justice at the ICC, given the ICC can’t prosecute Vladimir Putin, although his senior officials could be tried.
It’s uncertain how such a Special Tribunal would address the issue of head-of-state immunity. Heads of state such as the Russian President Vladimir Putin, are generally considered immune from prosecution while they are in office and its uncertain if the cloak of head of state immunity can be pierced.
The European Union Commission Chief Ursula von der Leyen has backed the proposal for a Special Tribunal to be formed. In order to avoid issues of head-of-state immunity, it’s deemed essential for the initiators of this political trial to get approval from the United Nations general assembly, given the veto Russia has at the UN Security Council due to its status as a permanent member.
The German Foreign Minister Annalena Baerbock has come out in favor of Ukraine’s proposal to institute a Special Tribunal to prosecute war crimes committed by Russia. This tribunal should be situated outside Ukraine, but base its jurisdiction on Ukrainian criminal law.
In order to bridge the gap in current international law Baerbock called to extend the ICC’s jurisdiction to crimes of aggression. Baerbock has also suggested that “for the crime of aggression, like genocide, crimes against humanity and war crimes, it must be sufficient that the victim state is party to the treaty.”
At the same time it’s difficult to explain why Ukraine has not ratified the Rome Statute that forms the legal basis for the International Criminal Court, which has been ratified by 123 countries.
Ukraine signed a so-called declaration of submission in 2014, in which it authorised the ICC to investigate crimes on its territory. Meanwhile, Moscow has not ratified the Statute either, which now stands in the way of the court holding Russian leadership to account.
The ICC cannot prosecute nationals of a non-party state with the crime of aggression, and Russia like the China, Israel, Saudi Arabia and U.S. have not ratified the Rome Statute either. The international criminal court is instead investigating war crimes and crimes against humanity committed in Ukraine, which are hard to link directly to orders from the Russian leadership in the Kremlin.
This is the same International Criminal Court (ICC) located in the Hague, Netherlands, the United States government has consistently opposed and has no intention to join due to its concern about possible charges of alleged war crimes against US nationals and alleged atrocities committed by Israel in Palestine.
The Clinton administration participated actively in negotiations towards the International Criminal Court treaty, seeking Security Council screening of cases, which would have enabled the U.S. to veto any case it opposed. Since the refusal of this unequal standard of justice, the US campaigned to undermine the court.
The Bush administration, embraced an extremely active opposition, threatened termination of economic aid, withdrawal of military assistance, and other measures to frustrate the Court. On 6 May 2002 the U.S. Government informed the UN Secretary-General, as depository of the treaty, that the United States did not intend to become a party to the Rome Statute of the ICC. The United States considered the ICC Statute “flawed” and objected to the Court “both in principle and philosophy”.
The Obama administration was more willing to engage with the Court and to provide support for the Court’s ongoing prosecutions.
The crusade against the ICC by the Trump administration was abundantly made clear In the words of former national security adviser John Bolton at the Federalist Society on 10 September 2018. In his speech, John Bolton stated
“The ICC prosecutor has requested to investigate these Americans for alleged detainee abuse, and perhaps more – an utterly unfounded, unjustifiable investigation.
Today, on the eve of September 11th, I want to deliver a clear and unambiguous message on behalf of the president of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.
We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us. […].
If the court comes after us, Israel or other US allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: […]
We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans. […].”
Although President Joe Biden has brought normalcy and multilateralism back to the White House and his administration has started to engage and use the Court when this serves U.S. geo-political interests, at the same time, his administration has shown the same ambivalence previous administrations showed towards the ICC, in both subtle and obvious ways.
The Biden administration has made clear, like previous administrations, the United States will not tolerate ICC warrants against American citizens involved in alleged war crimes in Afghanistan and will not support any investigation into the alleged atrocities committed by Israel in Palestine.
As Secretary of State Antony Blinken has stated in 2021 Washington still disagrees with some of the actions the court has taken and expressed the US’s firm opposition and deep disappointment by the decision of the prosecutor of the International Criminal Court’s (ICC) to open a full crimes probe into the Palestinian situation.
This, confirms the hypocrisy and self-serving approach the U.S. has regarding international law and also confirms the divergence which exist between the Global South and the North.
The sanctions against Russian interests show a world divided between on the one side the industrialized and on the other side the neutral and non-aligned countries, including the BRIC countries which do not follow the sanctions. This lack of support was confirmed by the UN resolution in mid-November, which called on Russia to pay war reparations to Ukraine, which passed with 94 votes in favor, 14 against and 74 abstentions.
The alleged international crimes in Ukraine deserve a strategic calculated response, but do not deserve a Special Tribunal which serves victor’s “revenge” justice (war winner) thereby further limiting the victim’s justice (war loser), which most Tribunal’s since WWII have turned into.
The label “victor’s justice” applies to the Tribunal’s based on retribution as a punishment that gratifies the public desire for vengeance, and like history is written by the victors, justice is decided by the winners. This justice has also elements of ex post facto Law.
This is the logic of victors justice of the Treaty of Versailles, which demanded unpayable reparations from the vanquished German nation, laying the seeds for WWII.
This is the logic of the Nuremberg Tribunal, which Trial was criticized for being one-sided, inefficient, ineffective, politicized, very costly and unfair body, where high politics was masquerading as law. In the words of Harlan Stone, Chief Justice of the U.S. Supreme Court who described the proceedings of the Nuremberg Tribunal as a “sanctimonious fraud” and a “high-grade lynching party” to Germans.
This the logic of the Tokyo War Crimes Tribunal, where perpetrators of war crimes and crimes against humanity at Hiroshima and Nagasaki pronounced judgment on the war crimes of the defeated.
This the logic of the International Criminal Tribunal for the former Yugoslavia (ICTY), organized by the United Nations which refused to investigate allegations made by Western academics and Serb politicians, who accused NATO officials of war crimes during the 1999 bombing of Serbia.
This is the logic for the hanging of Saddam Hussein, convicted after a political show trial, for which the gallows were erected in Baghdad.
This is the logic which applies to Guantánamo, Abu Ghraib, rendition, dark rooms and enhanced interrogation techniques at Cobalt facility, whereby the CIA ignored the 1955 Geneve Convention. The dehumanizing of prisoners or so called enemy combatants have shown the world a mirror and provided another lesson about the unlimited brutality humanity is capable of and how torture methods are not a thing of the past, but have entered the 21st century.
This is also the logic, that President George W Bush and his inner circle responsible for the war of aggression in Iraq, whereby the US and the UK supported by a coalition of the willing invaded Iraq, overthrew the government and occupied its territory, was not prosecuted for aggression.
As the president of the African Society of International Law Professor Makane Moïse Mbengue diplomatically noted, “There is a feeling that international justice is a bit “à la carte.”
This diatribe expresses my personal views and observation.