When is a War a Crime?

Oona A Hathaway

For months, Ukrainian representatives have been quietly working to generate support for a special tribunal. The proposal picked up steam in mid-December, when the president of the European Commission, Ursula von der Leyen, endorsed the creation of a tribunal and pledged to “start working with the international community to get the broadest international support possible for this specialised court.” In mid-December, while accepting the European Union’s top human rights award, Zelensky called on states to form a special tribunal to prosecute “the crime of Russian aggression.” At the same time, a Ukrainian delegation, hoping to capitalise on the momentum, arrived in Washington, D C seeking U S support for a special tribunal.

The effort to establish a special tribunal may seem quixotic. After all, plenty of criminal investigations into crimes committed by Russians during the war are already underway in both domestic and international courts. Why add another court to the mix? But without a special tribunal for the crime of aggression, the fundamental crime of launching and waging this illegal war—a crime without which the other crimes would not have taken place—would go entirely unpunished. Creating a court that has jurisdiction to try this crime is an essential step in the global effort to reject Russia’s blatantly illegal war.

When legal scholars speak of the crime of aggression, they mean the crime of waging an illegal war. Since the end of World War II, that has meant a war that violates the UN Charter, which prohibits states from using force against any other state unless they are acting in self-defence or have been authorised to use force by the UN Security Council. For much of history, however, there was no such thing as a crime of aggression, because aggressive wars were perfectly legal. Indeed, military conflict was an accepted method of settling international disputes. States could go to war for any number of reasons, including to collect debts, to enforce treaties, and to protect trade routes. That changed only in 1928, when nearly every country in the world joined the Kellogg-Briand Pact, which for the first time outlawed war, prohibiting states from using war “as an instrument of national policy.”

The first court with jurisdiction to try this new crime was the International Military Tribunal established at Nuremberg, Germany, after World War II. There, 24 Nazi leaders faced trial for crimes committed during the war, including the “crime against peace,” as it was then called. Prosecutors—including Robert Jackson, who took a leave of absence from his position as a U.S. Supreme Court justice to serve as a prosecutor in Nuremberg—filed an indictment, the first count of which charged defendants with participating in a conspiracy to commit acts of aggression, noting that the “invasions had been specifically planned in advance, in violation of the terms of the Kellogg-Briand Pact of 1928.” The second count charged defendants who “participated in the planning, preparation, initiation, and waging of wars of aggression.” (Similar charges were made in the International Military Tribunal for the Far East in Tokyo, which tried Japanese leaders for starting and waging war.)

The Nuremberg court found eight defendants guilty of the first count and 12 guilty of the second. In its judgment, it explained the foundational importance of the crime: “To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

The only other international court with jurisdiction over the crime of aggression is the International Criminal Court (ICC), created in 2002. The treaty that established the court, the Rome Statute, granted the court jurisdiction over the crime of aggression. But the crime could not be prosecuted until a conference of the states that had ratified the treaty could agree on the definition of the crime. That task was only completed in 2010, when the conference of states parties met in Kampala, Uganda, to amend the statute to fill in the missing pieces. The draft writers limited criminal liability to “manifest” violations of the UN Charter by any person engaged in “planning, preparation, initiation or execution” that was “in a position effectively to exercise control over or to direct the political or military action of a State.” This meant that only those most responsible for the war, and not ordinary soldiers, could be prosecuted (though only after the amendments became effective, in 2018). In a concession to the United States, which participated as an observer, the conference also agreed to limit the exercise of the court’s jurisdiction over the crime to wars of aggression committed by states that had ratified the Rome Statute as well as the new amendments. The United States signed but never ratified the treaty; thus, no citizen of the United States can be charged for the crime of aggression in the ICC.

No citizen of Russia can be charged for the crime of aggression, either. Like the United States, Russia signed but never ratified the Rome Statute. Belarus, too, never ratified the treaty, and it therefore cannot be held to account by the court for its complicity in the illegal war, including by allowing Belarusian territory to be used in service of Russia’s war.

Although the ICC does not have the power to prosecute the crime of aggression committed by Russian or Belarusian citizens, the ICC does have the power to prosecute war crimes, crimes against humanity, and genocide in Ukraine. That’s because countries gave the court broader jurisdiction over these crimes, allowing it to prosecute the nationals of nonmember states if the crime is alleged to have been committed on the territory of a state that has agreed to the jurisdiction of the court. This is why the United States could be investigated by the court for alleged crimes, including torture, committed by its forces in Afghanistan. While the United States is not a party to the Rome Statute, Afghanistan is, meaning that crimes committed on its soil can be investigated by the court. In Ukraine, the court has had this same authority since 2014, when Ukraine first submitted to the jurisdiction of the court.

 Although the Ukraine war has renewed interest in amending the Rome Statute so that the crime of aggression can also be prosecuted against states that commit the crimes on the territory of a state that has accepted the court’s jurisdiction (as is true for the other crimes), such an amendment would likely take years to enact. The best way forward is therefore a two-track approach: a special tribunal for the crimes of aggression in Ukraine and an amendment to the Rome Statute to expand the court’s jurisdiction so that a special court will not be necessary in the future. But how it should be done remains an open debate.

The first widely circulated proposal, put forward by former British Prime Minister Gordon Brown and several other heads of state and legal experts, called for a special tribunal modelled on Nuremberg. But that approach has drawn criticism; some argue that a tribunal created by a few Western states would not have the legitimacy of one created under the auspices of an international organisation. And what would stop, say, Russia, Belarus, and Syria from creating a competing “international court” of their own?

Alternative plans have emerged one after another. There was a proposal to establish a hybrid tribunal under the auspices of the Council of Europe that would be called the Extraordinary Ukrainian Chamber for Aggression. But the proposal would have required unanimity among members of the Council of Europe, and it never picked up steam. What about simply leaving it to the Ukrainian courts? Ukrainian domestic law, after all, criminalises “planning, preparation and waging of an aggressive war.” But domestic courts are obligated to recognise the immunity of foreign heads of state, heads of government, and the foreign minister, which would mean that Putin and his foreign minister, Sergey Lavrov, would be out of the Ukrainian courts’ reach. (The same would likely be true of the proposed hybrid tribunal.) Russian generals could not take advantage of personal immunity, which applies only to those at the very highest level of government, but they would likely seek to claim functional immunity if prosecuted in Ukrainian courts, arguing that they cannot be held criminally responsible in a foreign domestic court for performing official acts. Those same immunities would not apply in an international court acting on behalf of the international community.

The proposal with the most widespread support at present) is a court created through the UN. This would require agreement between Ukraine and the UN, after a vote of the General Assembly recommending its creation. This would be fitting: after all, the court would be created precisely to enforce and reaffirm the UN Charter’s prohibition on the use of force. And creating the court through a vote in the General Assembly would give every country in the world a chance to reject Putin’s illegal war and endow the special tribunal with powerful international legitimacy.

 [Source: Foreign Affairs]