How to apply the Nuremberg model for Russian war crimes

American international lawyer Beth Van Schaack pointed out that Soviet lawyer Trainin was inspired by the idea that international law is not the law of violence but a force for peace. He also insisted that the victorious nations criminalize the crime of aggression and set up a permanent international tribunal.

What a paradox – the Soviet Union and its progressive ideas on international law.

Due to his state’s policies, Trainin was unable to make this clear at meetings of the commission preparing the London Accords on the International Military Tribunal (known as the Nuremberg Trials), and conveyed his ideas through Czech envoy Bohuslav Echer. often without naming the author.

But unlike in 1945, the Ukrainian idea of ​​a special tribunal against Russia’s top leadership has its explicitly defined “creators”.

This idea has been in the works since the last days of February this year, as the UK’s leading international lawyer, Professor Philip Sands QCpublished an article in the Financial Times questioning why we should create a special tribunal that can try the leadership of the Russian Federation for the crime of aggression against Ukraine.

Ukrainian lawyers are working with both our colleagues and international lawyers on the creation of this special tribunal. Among them are British (especially Sands, Dapo Akande, Aarif Abraham), American (Alex Whiting) and Australian (Cary MacDougall). And among the Ukrainians there are Minister of Foreign Affairs Dmytro Kuleba, Mykola Hnatovskyi (currently judge at the European Court of Human Rights) and Anton Korynevych – ambassador at large in the Ministry of Foreign Affairs of Ukraine.

How will the court work?

First, it must be made clear that no permanent or existing international judicial institution has jurisdiction over senior Russian officials.

The International Criminal Court in The Hague is investigating the situation in Ukraine. However, it exercises jurisdiction over three types of the most serious international crimes: genocide, crimes against humanity and war crimes.

The crime of aggression against Ukraine cannot be examined by the court because neither Ukraine nor Russia have ratified the Rome Statute of the International Criminal Court or specific amendments to it.

Likewise, given its composition and the veto powers of its permanent members (i.e. Russia), we cannot expect the UN Security Council to determine that an act of aggression against Ukraine has taken place and refer the situation itself to the International Criminal Court.

That is why we need a special tribunal to complement the ICC.

It will not create an alternative to the International Criminal Court, but will supplement the court in connection with adjudication of the crime of aggression against Ukraine.

The crime of Russian aggression against Ukraine has already been recognized by a UN General Assembly resolution. A special tribunal is therefore perhaps the easiest way to prosecute Russian leaders.

At the same time, it is important that members of the international community are ready to give life to this proposed tribunal.

Who will the accused be?

If we recall the Nuremberg trials, it was believed that high-ranking officials, military commanders and other people, including industrialists, who helped Germany to rearm after World War I would be tried.

Ultimately, only Gustav Krupp, whose company, the Krupp Group, manufactured important war equipment for the Third Reich in forced labor, was accused by the Nuremberg public prosecutor’s office.

Today we do not know where our future tribunal will lead, but we do know that Putin is not the only one responsible for the horrific aggression against Ukraine.

It’s not just about the state apparatus or the military, we need to look much further: to propagandists, oligarchs, businessmen and diplomats (the latter, for example, after tweets about the execution of soldiers of the Azov regiment).

But, of course, the key figures should be the representatives of the political and military leadership of the Russian Federation.

Currently, the idea of ​​establishing a special tribunal for the crime of aggression against Ukraine is supported in two resolutions of the Parliamentary Assembly of the Council of Europe (PACE), a resolution of the European Parliament, a statement of the Parliamentary Assembly of NATO and a resolution of the Parliamentary Assembly of the organization for security and cooperation in Europe and a resolution of the Lithuanian Parliament.

In addition, the future concept of the arbitral tribunal was drafted: it is possible to set up an arbitral tribunal on the basis of an agreement with the Council of Europe, based in Strasbourg and with the main actors being the member states of the Council of Europe.

This concept isn’t perfect, but it’s definitely worth considering and refining.

We, as the Ukrainian delegation to PACE, have worked a lot on this resolution and the rapporteur on this issue, a Polish MEP, has taken into account all our reservations in a way that the Ukrainian thirst for responsibility fits well on the legal canvas and has been with the political positions of different delegations with different political preferences.

However, no policy should be made on the question of responsibility for the breach of the peace in Europe and the murder of children and other non-combatants.

The Nuremberg trials were one of the most significant manifestations of “power paying tribute to reason” – according to Robert Jackson, chief US attorney at the opening of the trial.

Only by severely punishing evil can you prevent its recurrence in the future.