Ukraine, war crimes, and Vladimir Putin

The International Criminal Court (ICC) has indicted Russia’s president for war crimes, notably the unlawful transfer of Ukrainian children to Russia. It is just one of many violations documented in Ukraine since Russia’s invasion over a year ago.

How likely are we, realistically, to see any of Russia’s leaders, let alone Vladimir Putin, in the dock? What viable avenues to justice and accountability are there? That is what we will be discussing on the Inside Geneva podcast this week. Our guests are Agnes Callamard, secretary general of Amnesty International, lawyer and best-selling author Philippe Sands, and our regular analyst Daniel Warner.

There are now so many investigations into violations in Ukraine that it is sometimes difficult to keep track of them all. The Ukrainians themselves are of course collecting evidence and building prosecutions. UN Human Rights has monitors in Ukraine and there is now also an official UN commission of inquiry, created by the UN Human Rights Council. And non-governmental organisations like Amnesty International and Human Rights Watch are doing their own research and evidence collection too.

Amnesty’s Agnes Callamard welcomes all this effort. But she also points out that had the world reacted earlier to other clear violations by Moscow, we might not be where we are today in Ukraine.

“Had we responded effectively to Russia’s multiple war crimes in Chechnya or Syria, maybe we would not have seen the aggression against the people of Ukraine,” Callamard tells Inside Geneva.

Crime of aggression

That word aggression is one that Philippe Sands has been focussing on. Some of you may be familiar with Sands’ book East West Street, in which he compellingly tells the story of the development of international law, and how the charges of crimes against humanity and genocide were brought against Nazi leaders at the Nuremberg trials in 1945.

There was another charge before the court in Nuremberg: the crime against peace. Today it is known as the crime of aggression, and that, Sands argues, is the chief crime Russia’s leaders should be charged with.

“The real crime of crimes in this story is the decision to go to war. Every other crime, the deportation of children, the crimes against humanity and the war crimes, is a consequence of the decision to go to war,” he says.

But tellingly the charge has never been used since 1945. It is not even on the statute book of the ICC, which can prosecute war crimes, crimes against humanity and genocide, but not the crime of aggression.

Elephant in the room

The reason for that, of course, is that many countries have been traditionally reluctant to call for a prosecution for crimes of aggression, because of the precedent that might set. “The elephant in the room is Iraq,” our analyst Daniel Warner points out.

When the US and the UK invaded Iraq 20 years ago, without a UN Security Council resolution, many believed at the time, and continue to believe, that the move was illegal. There is no statute of limitations for the crime of aggression, so launching a prosecution against Russia for that crime could leave the US and the UK open to similar charges themselves.

Nevertheless, some British and American politicians and diplomats have expressed support. Former Prime Minister Gordon Brown, a senior member of the UK government at the time of the Iraq war, was among the first. And at the end of last month US Ambassador-at-Large for Global Criminal Justice Beth Van Schaack announced Washington too would support “the development of an internationalised tribunal dedicated to prosecuting the crime of aggression against Ukraine”.

It is not entirely clear what the US has in mind when it talks about an “internationalised tribunal”. Sands is also aware that, despite the support, there are likely to be all sorts of different views on what exactly such a tribunal will look like. But he is confident that “there is going to be a tribunal. The issue is not whether there will be a tribunal, but what sort of a tribunal”.

And what about the ICC?

So where does that leave the International Criminal Court and its indictment? Here, if you listen to Inside Geneva, you will sense a certain turf war taking place between the world’s top international lawyers. The ICC chief prosecutor Karim Khan has not spoken out in favour of a tribunal for crimes of aggression, a position Sands complains is “not principled”, suggesting instead that Khan feared losing the limelight were a new tribunal to be set up.

From this humble journalist’s standpoint, so many violations have been so well-documented in Ukraine that there surely should be enough work for every eager international lawyer out there.

Meanwhile, there are other serious human rights situations, such as in Ethiopia, Myanmar, Sudan, or the Democratic Republic of Congo. Ukraine, as Daniel Warner points out, is “taking up the oxygen”, both of our attention and of resources.

Amnesty International’s annual report, which came out in March, condemned what it said were “double standards”, in which “Western states reacted forcefully to the Kremlin’s aggression but condoned or were complicit in grave violations committed elsewhere”.

Agnes Callamard tells Inside Geneva that if we fail to uphold human rights everywhere – to ensure their universality just as intended when the Universal Declaration was drafted 75 years ago – we will all be losers.

Rather than complain that Ukraine is getting too much attention, she says, the work there should instead be a shining example of how all human rights violations should be tackled.

“The response to Russia’s aggression against the people of Ukraine stands out: in investigation of human rights violations, the delivery of justice and accountability. It could serve as a model, and it could help the world imagine a new international order,” says Callamard.