Crimes against peace

The war crimes that have been committed and continue to be committed in Ukraine have their origins in the war of aggression unleashed by the Russian Federation against Ukraine. This is a war of the kind we thought/hoped we had left behind. It presents itself, in fact, as a war of territorial conquest, like those of the 19th and 20th centuries and, as such, prohibited by the UN Charter.

The International Criminal Court issued two arrest warrants for a specific type of these crimes, but the assault remained, so to speak, in the background.
The crime of aggression is included in the Rome Statute of the International Criminal Court, alongside genocide, crimes against humanity and war crimes. However, neither Russia nor Ukraine have ratified this important multilateral treaty (which today binds 123 states). Consequently, it will not be possible to bring the leaders of the Russian Federation, primarily President Vladimir Putin, before the court (permanent tribunal, based in The Hague). In the aftermath of the Second World War, some top leaders of the Nazi regime were tried in Nuremberg (November '45-October '46), by an international military tribunal established with an agreement, concluded in London in 1945, between the United States, the United Kingdom , Soviet Union and France. The first charge was related to the "conspiracy" to launch wars of aggression, while the second was dedicated precisely to the planning, unleashing and conduct of wars of aggression. War crimes and crimes against humanity were only covered in subsequent charges. In other words, the cornerstone of the trial of Nazi criminals was represented by what the London Agreement characterized as "crimes against peace". The legal logic understandably follows the human one: war crimes are the direct consequence (and entail the relative responsibility) of having decided to attack a State, the one in which the crimes are then committed.

While responsibility for war crimes (such as those against humanity and genocide) can be attributed to people occupying very varied positions in the chain of command (from the commander of a combat unit down to to the common soldier), the crime of aggression is considered a leadership crime. Those who commit it, that is, are at the highest levels of decision-making power (heads of state or government, ministers, commanders of armies). This explains the reluctance of states (i.e. their governments) to accept stringent regulations on the matter.

In the case of Ukraine, we can see that it is not easy to bring the Russian leadership - the Soviet tsar first and foremost - before the international criminal court. Russia is not a state party to the Rome Statute and therefore does not accept the jurisdiction of the court. The alternative would be for the case to be referred to the UN Security Council. But Russia holds the infamous "veto right", and would block any initiative in that direction.
In recent months we have sought and continue to seek a practicable way. The court is a permanent and pre-established tribunal. The alternative would be the establishment of a "special" court.
Various initiatives in the international community are dedicated to this possibility, starting from those developed within the European Union.
The European Parliament has adopted a resolution on the establishment of a tribunal to «investigate and prosecute the crime of aggression committed by Russian leaders against Ukraine» or, alternatively, have a resolution adopted by the UN General Assembly .

The search for an adequate legal basis for a special court is not easy. The previous models are essentially three. The first is the aforementioned Nuremberg tribunal, established on the basis of a multilateral agreement between states. However, it would be a precedent that states have always stated that they consider consigned to history, and not reproducible. The second is that of the two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. These were established in 1993 and 1994 by decision of the UN Security Council which, however, today would be paralyzed by the Russian veto. An attempt to have such a decision adopted by the General Assembly (rather than by the Security Council) would be open to criticism due to the weakness of the legal basis. A third way would be – as in the cases of Sierra Leone and Cambodia – to establish a "mixed tribunal", based on an agreement between Ukraine and the United Nations (again, however, on the initiative of the States in the general assembly) .

All these alternative hypotheses to the international criminal court, however, must take into account the need to respect the principle of legality and all judicial guarantees. After a war like this, there are serious dangers of sliding from justice to revenge. This would be a dramatic and painful step backwards in the history of international law and criminal justice.
In presenting a book on the Nuremberg trials, Senator Edward Kennedy recalled "the respect we rightly earned when we demonstrated to the world the immense power of the rule of law." This is the challenge that even today the international community is called to face, with seriousness, determination and courage.


Edoardo Greppi
NP August / September 2023