I just returned from London, where leaders in legal circles are noodling about how to bring to justice Russian President Vladimir Putin, who faces mounting legal challenges from the international community.
In March, the International Court of Justice (ICC) issued a warrant for Putin’s arrest for the war crime of illegal deportation and the transfer of children from Ukraine to Russia. Philippe Sands, the savvy London professor of law who has written about the origins of genocide and crimes against humanity, urges the international community “not to give up the Nuremberg moment” to prosecute Putin, referring of course to the Nuremberg trials in which former Nazi leaders were charged and convicted as war criminals by an international military court.
In his brilliant book “East West Street: On the Origins of Genocide and Crimes against Humanity,” Sands distinguishes “crimes against humanity” as the “killing of individuals as part of a systematic plan”— as Putin has done in Ukraine — from “genocide” as “the killing of the many with the intention of destroying the group of which they are a party,” as the Nazis did with the Jews during World War II. The difference, Sands argues, is largely a matter of proving in the case of genocide, the intent to destroy the group.
In March of last year, the ICC, which grew out of Nuremberg, launched a war crimes investigation into Russia’s invasion. The body’s chief prosecutor said he would begin work “as rapidly as possible” to determine whether war crimes and crimes against humanity have been committed in Ukraine.
Alongside the ICC investigations, proceedings are also under way at the European Court of Human Rights in Strasbourg and the International Court of Justice in The Hague. The investigations are continuing, but no one has yet to bring formal charges, perhaps because of the absence of jurisdiction.
Sands argues that there is insufficient strength in the permanent international courts to convict Putin. The criminality of the ruthless bombing and murder of civilians, and of the resettlement of children from Ukraine to Russia, is obvious. However, war crimes and crimes against humanity take time to prove, and the process of gathering evidence on individual cases may be complicated. There are also thorny legal issues of jurisdiction. None of the international courts has the jurisdiction to prosecute the crime of aggression. That is why, he contends, the time has arrived for a new dedicated international tribunal.
Sands argues for immediate prosecution of Putin before that tribunal for the crime of aggression, one of the four established international crimes — alongside war crimes, crimes against humanity, and genocide — to grow out of the Nuremberg trials.
The distinguished British diplomat Lord David Hannay takes issue with Sands on the prosecution bit, arguing that Nuremberg is the “wrong model.” He points out that the Nuremberg trials only occurred after the allies had conquered the Nazis, and the highest Nazi leaders were either in custody or dead. Today, Ukraine has not yet emerged victorious, and Putin resides safely in Russia, unlikely to travel in the foreseeable future. Better to ensure that Russia’s aggression has “failed, militarily, politically and economically.”
And there is a new alternative. As reported by the respected British legal analyst Joshua Rozenberg, Ukraine’s senior prosecutor, Andriy Kostin, told a London legal forum that Russia’s invasion of Ukraine was not merely Ukraine’s war, but “a global war that is putting international peace and security at risk.” He has announced “an ad hoc special international tribunal” to be established at The Hague to respond to Russia’s crime of aggression. This, he argued, will close the “accountability gap” for Russia’s “leadership crime.”
The goal of this tribunal will be to weave a “comprehensive web of accountability,” so that war criminals could not act with impunity within safe havens. He added that “no one is, or should be, above the law.”
The attorney general of the U.K. perceived a number of legal hurdles involved in such a new tribunal, including leadership impunity, but vowed work to overcome them. Kostin noted that nobody had expected to see the Serbian leaders Slobodan Milošević and Radovan Karadžić on trial, but it happened.
The ball is now in the court of the international community. The crime of aggression is quite clear. Prosecuting Putin for aggression would not only hold the Russian president accountable under international law, but represent a stark deterrent to other leaders. In London, the mindset is that this is Adolf Hitler in 1939 all over again.
At the forum, Kostin thanked the British for their “unwavering and continuous support.” That support is buttressed by the U.S., which just supplied the Ukrainians with an arsenal of cluster bombs. So far, there is bipartisan backing in the U.S. for Ukraine. Whether that continues after the 2024 elections remains to be seen.
James D. Zirin is a former federal prosecutor in the Southern District of New York.