Three days after Russia invaded Ukraine, I published a column in the FinancialTimes on the crime of aggression, which allows the prosecution of the leaders of a country provoking a war. This emerged in international law in the summer of 1945 as a “crime against peace”, during the negotiations for the creation of the Nuremberg tribunal – ironically, it was a Soviet proposal, which the Allies had initially opposed. Since then, aggression has been one of the four recognized international crimes, alongside war crimes, crimes against humanity and genocide.
Having jurisdiction over these last three crimes, the International Criminal Court (ICC) recently issued a first arrest warrant against Mr. Putin for the deportation of children, a war crime. The ICC cannot, however, exercise jurisdiction over aggression. This serious shortcoming prompted me to propose the creation of a special criminal tribunal to investigate Mr. Putin and his cronies for their conduct of a manifestly illegal war.
After the publication of my column, Dmytro Kuleba, Ukrainian Minister of Foreign Affairs, declared that Ukraine also wanted the creation of a special tribunal. A few months later, a coalition of the three Baltic States and Poland supported this project, which was soon followed by the Parliamentary Assembly of the Council of Europe, the European Parliament and NATO. The momentum quickly ran into Realpolitik: Britain, France, Germany and the United States were not very enthusiastic. Not so much as a matter of principle as out of an instinct for self-preservation: if a tribunal is created today to judge Russia, wouldn’t they risk seeing such legal instruments turn against them? An elephant in the room happens to be the Iraq war of 2003, launched on manifestly illegal grounds, which makes a number of countries in the South, and particularly in Africa, say that when it comes to international justice, there is a “double standard” for the benefit of Westerners.
Since then, France has supported the creation of a special court. Others followed, acknowledging the reasonable and legitimate desire of Ukrainians for justice. The European Commission has thus announced the creation of a Center for the Prosecution of the Crime of Aggression, to gather evidence and identify potential defendants.
Ukraine has the right to an international tribunal worthy of the name
This is a first step towards the establishment of a court capable of judging the perpetrators of the military aggression against Ukraine, which will have to be the subject of a legal agreement, most probably between the Ukraine and the United Nations or a European organization. This agreement can be easily drafted – the statutes of the Nuremberg Tribunal were drawn up in a month. It would be good if the agreement were signed in Lviv, whose bloody history gave rise to the legal terms of crimes against humanity and genocide – their respective inventors, Hersch Lauterpacht and Raphael Lemkin, lived in this Ukrainian city. Ukraine rightly wants a fully-fledged international body.
France and the G7 seem to want a smaller creature, little more than a Ukrainian office in The Hague. President Zelensky has rejected this model, and he is right: Ukraine is entitled to an international tribunal worthy of the name. Over the next few weeks, creative minds will be able to build bridges to find a solution. When the political will crystallizes, the law follows.
We are living in a crucial historical moment. We were unprepared for the invasion of Ukraine, the crimes and other horrors that followed, including the totally illegal targeting of civilian infrastructure, acts with no military purpose. After his failures in Georgia, Chechnya, Crimea and Syria, Mr. Putin thought the West would turn a blind eye. Fortunately, he was wrong.
I am aware of the limits of short-term law and the need to go through military and diplomatic efforts. But not dealing with this aggression by Ukraine would amount to renouncing the achievements of Nuremberg and the very idea of the crime of aggression, for this war as well as those of the future. The message must be sent that military aggression of one country by another will not be tolerated and will result in individual criminal prosecution, up to the highest level. Let’s not forget, as Aimé Césaire said, that a civilization that tricks its principles is a moribund civilization.
*Philippe Sands is a Franco-British international jurist, professor of law at University College London and the author of Back to Lemberg (2017) – European Book Prize, special mention from the jury – and The Last Colony (2022) – Prix de la Contre-Allée -, published by Albin Michel.