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Justice for the Crime of Aggression Today, Deterrence for the Aggressive Wars of Tomorrow: A Ukrainian Perspective

2022-08-29

International organizations now actively debate the need for an ad hoc international tribunal for the crime of aggression and its legal grounds. The Ukrainian Bar Association from the first days of the full-scale war in Ukraine has also noted the need for a Special Tribunal for Russia and urged on the international community to take immediate steps to end the war and hold Russia accountable.
Why the international community must put the creation of a prosecution mechanism beyond debate and implement it into reality, read in the article by Dr. Gaiane Nurijanian, Senior lecturer at the National University of Kyiv-Mohyla Academy in Ukraine and a postdoctoral research fellow at the UiT-Arctic University of Norway, for Just Security.

Calls to establish a special tribunal for prosecution of the crime of aggression have been appearing since the very early days of Russia’s full-scale invasion of Ukraine. While there is general agreement that Russia committed an act of aggression against Ukraine, various avenues of prosecuting the crime of aggression have been proposed. Some believe that the Rome Statute should be amended to empower the International Criminal Court (ICC) to prosecute crime of aggression against Ukraine by authorizing the U.N. General Assembly to refer the situation to the ICC (Shane Darcy). Others support the idea of a special tribunal, disagreeing, however, on whether it should be of purely international or hybrid character (Tom DannenbaumCarrie McDougallKevin Jon HellerOwiso Owiso).

Ukraine itself has chosen to advocate for the creation of an international ad hoc criminal tribunal to prosecute the crime of aggression. While the idea is supported, among others, by the Parliamentary Assembly of the Council of EuropeEU Parliament, and NATO Parliamentary Assembly, Ukraine’s Minister of Foreign Affairs Dmytro Kuleba admits that negotiating the creation of such a tribunal is not an easy task. There is some reluctance, according to Dmytro Kuleba, to create an alternative to the ICC, a permanent court which already possesses jurisdiction over the crime of aggression, notwithstanding the fact that legal constraints prevent the ICC from exercising its jurisdiction in respect of the crime of aggression committed against Ukraine. Another reason for hesitation of “international partners”, says he, is the exceptional nature of the practice of trying state leaders for international crimes.

The need for an ad hoc international tribunal for aggression and its legal basis are now actively debated by international scholars (see events organised by Chatham HousePILPGUkrainian Bar Association and Edge Hill University). Leaving aside legal issues, this piece shares a Ukrainian perspective on the normative need to ensure accountability for the crime of aggression against Ukraine. The international community must move the creation of a prosecution mechanism beyond debate and into reality: it is a vitally important part of creating meaningful justice in Ukraine, and necessary for ensuring the legitimacy of a rules-based international order and deterring future aggressive wars.

“The Accumulated Evil of the Whole”

The frequently cited passage from the 1946 judgment of the International Military Tribunal in Nuremberg describes the crime of aggression as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” It is waging of the war that often leads to war crimes and other atrocities being committed. However, the damage inflicted by the war in Ukraine is even greater than the harm of all the war crimes taken together. Nor would prosecution for any potential crimes against humanity, even genocide, capture adequately all the hurt and injury caused by Russia unleashing its aggressive and destructive war on the Ukrainian people.

To be sure, these are all grave crimes and none of them is hierarchically superior to others. But many in Ukraine suffered from Russia’s aggression without necessarily being victims of other international crimes. As Carrie McDougall points out, the waging of an aggressive war is also a wrong committed against non-civilian Ukrainians and members of Russia’s own armed forces. The war does more than claim lives of those who are fighting in the hostilities or become victims of those hostilities. It destroys the hope for a better life for generations in Ukraine, who for many years to come will have to deal with the war’s material consequences and psychological scars. These people’s suffering and the war’s impact on the Ukrainian people must also be recognized and vindicated.

One of the greatest impacts of the war on Ukraine is massive displacement of its population. Within months after the invasion, 6.64 million people moved to other regions of Ukraine, while 6.3 million fled abroad. In total, nearly 13 million people, about 30% of Ukraine’s population, were driven from their homes by the war and lost, either permanently or temporarily, that place to which one’s personal and family life is most closely connected. In addition, for millions of Ukrainians, displacement means separation from their families, loss of employment, and a very uncertain futureThe International Organisation for Migration reported that, in April 2022, over one-third of displaced persons indicated that they had no source of income.

The war is estimated to plunge the population of Ukraine into poverty and destroy whatever economic growth and prosperity Ukraine had managed to achieve in the recent years. According to the World Bank, the poverty in Ukraine is projected to increase to 19.8% in 2022 from 1.8% in 2021 because of the war. Additionally, 59% of Ukraine’s population will be at risk of ending up below the international upper middle-income poverty line (US$5.5 a day). At minimum, poverty affects person’s access to basic needs such as food, water, clothing, housing, health care, and education. But for Russia’s war, the chances of nearly 80% of Ukraine’s population being exposed to the risk of poverty in 2022 would have been close to zero.

But for Russia’s aggression, Ukrainians in all parts of the country would have also been spared the very real mental anguish and suffering brought about by the war and caused, to mention only a few factors, by witnessing violence, losing family or friends, being deprived of sense of physical security, and living under constant threat of Russian indiscriminate attacks and air strikes. Having experienced this “accumulated evil of the whole,” Ukraine requires a commensurately comprehensive opportunity for justice, one that reflects the full range of harms Ukraine and Ukrainians have experienced.

The World Held Hostage

Russia’s war is much more than an attack on Ukraine, and its effects reverberate far beyond Ukrainian borders. It has already been pointed out that Russia’s blatantly unlawful war on Ukraine is an attack on the international legal order. The war erodes the post-World War II paradigm that international disputes must be resolved by peaceful means and that the force must not be used to redraw international borders. However imperfect at preventing regional wars and localized conflicts, the paradigm at least succeeded at maintaining world peace. Until now. Russia’s invasion of Ukraine in February 2022 brought the world to the brink of a third world war and nuclear disaster.

The war not only turned the world into a less secure place. It also generates concrete and severe consequences for many lives outside the Ukrainian borders. The war seriously exacerbates the cost-of-living crisis. The World Bank estimates that the combined effects of the war and the pandemic will drive up to 95 more million people into extreme poverty. According to the U.N., an additional 47 million people are expected to face acute hunger in 2022 because of Russia’s war. These “hunger games” are deliberate, as Russia is using starvation as a warfare method in Ukraine and the food supplies as a weapon against the rest of the world.

Aggressive Wars of Tomorrow

The political and military leaders of Russia bear responsibility for waging the war on Ukraine and should be prosecuted for the crime of aggression. It is reasonable to question whether creating an ad hoc international criminal tribunal for the crime of aggression will lead to any practical results in prosecuting the Russian leadership, given difficulties of getting hold of potential suspects.

However, no less pertinent to this discussion is the question: What would the implications of failing to even attempt to prosecute the crime of aggression against Ukraine be? The answer may by now be rather predictable, but only because it is worth reiterating time and again. It would send a signal that waging blatantly unlawful and colonizing wars in the 21st century can easily go unpunished. It would create a gap of impunity, with Russia and its leaders escaping accountability for subjecting millions in Ukraine to the human tragedy that is the war and driving millions more in the world into poverty and starvation. It would undermine even further the international legal order, which would be seen as incapable of even setting up a competent mechanism for prosecuting the crime consisting in an egregious violation of its most fundamental norm – that of prohibition of use of force.

And the past lack of effort to hold those responsible for waging of unlawful wars is not a reason to continue to remain passive. If anything, such past failures, for instance in respect of aggression committed by Russia against Ukraine since 2014 onwards, have at least in part enabled Russia’s full-scale invasion in 2022. A failure by the international community to even try to hold accountable those responsible for today’s aggression may very well enable aggressive wars of tomorrow.