Ukraine’s ambassador to Germany, Oleksii Makeleiv assumed his post in October 2022, appointed after the former Ukraine ambassador made a series of incendiary headlines that included publicly calling the German Prime Minister, Olaf Schultz, a liverwurst, a deeply German insult.
Makeleiv’s tenure has been noticeably calmer, a testament to his diplomatic skills, although his responsibilities remain as challenging. Upon his departure from Kiev, Makeleiv says he was given only two key instructions; acquire Leopard 2 tanks and seek justice. While the delivery of the long-awaited German built tanks in March 2023 fulfilled the first instruction, the pursuit of justice remains a complex and arduous task.
On a warm night in May, 2023, I met Makeleiv at a pre-dinner cocktail hour in an exquisite Berlin apartment with sweeping vistas of the central train station and the city’s waterways. These gatherings form a crucial part of Makeleiv’s duties, to make his country’s case to German politicians, historians, human rights lawyers, politically active artists and, on this evening, Beth Van Schaack, the U.S. Ambassador-at-Large for Global Criminal Justice.
Earlier in the day, Van Schaack had reiterated U.S. support for justice and accountability in Ukraine. The venue, the Pilecki Institute, was an apt setting for a discussion on accountability. This Polish Institute in the heart of the German capital is dedicated to researching 20th century history including Nazi war crimes and also collects testimonies from Ukrainian refugees of more recent Russian atrocities.
“Ukraine will be the frontline of justice; the majority of cases will happen in Ukrainian courts,” Van Schaack told the audience.
Ukrainian prosecutors have already recorded a staggering number of cases, more than 80 thousand individual war crimes. Ukraine’s domestic courts focus on ‘direct perpetrator’ crimes. More than a dozen war crime suspects have been convicted on charges including rape, murder, and shelling of residential infrastructure, according to Ukrainian prosecutors. However, these are low level Russians, foot soldiers, mostly from the ranks of prisoners of war. Nearly half of the war crime convictions against Russia soldiers have been in absentia, allowed under Ukrainian law since 2014.
In her Berlin address, Van Schaack described a higher court to address the crime of aggression.
“The U.S. favors an “internationalized” tribunal deeply rooted within the Ukrainian national system,” Van Schaack announced to a packed house.
This is far from Ukrainian demands for an international war crimes tribunal deeply rooted in the model of the 1945 Nuremberg tribunal. As for the U.S. preferred model, legal experts drawn parallels between the U.S. proposed court, an ‘internationalized tribunal” and the internationalized tribunal in Iraq, established for the trial of Saddam Hussein, rather than drawing directly from the precedents set at the Nuremberg trials after WWII.
Ambassador Van Schaack’s remarks in Berlin were the strongest signal yet that Washington supports the investigation of the crime of aggression, the key crime in Nuremburg proceedings, but support for an ‘internationalized court” is also a clear limit in how far the administration is willing go at this time.
Russia’s top leaders and commanders accountable for actions committed on their orders, including President Vladimir Putin, would be immune from prosecution in a Ukrainian court.
Ukrainian officials muted criticism of the U.S. ambassador’s remarks, but there is a gap between Ukraine and key allies concerning the establishment of an international tribunal, the only court with the jurisdiction to try the Russian leadership.
“This is where you get the fracturing,” says Creighton University law professor Michael Kelly, “Ukraine still wants the international model. Because Ukraine has been very busy building up its rule of law bonafide through all of the other international litigation that it’s been engaged in, not only at the ICC, but at the International Court of Justice, where it asked for and was granted provisional measures, and sued Russia.”
Ukraine has also sued Russia in the Law of the Sea Tribunal, the Permanent Court of Arbitration and the European Court of Human Rights.
“All of these international tribunals are ruling in favor of Ukraine,” says Kelly.
“The world is living a Ukraine moment, the massive mobilization to investigate and prosecute war crimes in Ukraine has already surpassed any precedent,” explains Reed Broody, a war crimes prosecutor who led the 25-year effort to bring a former Chadian dictator to justice and has written about his work in a book, “To Catch a Dictator: The Pursuit and Trial of Hissène Habré.
“Nobody’s going to be putting the handcuffs on Vladimir Putin anytime soon. But these are crimes that have no statute of limitations that will hang over his head forever,” adds Broody.
Putin’s invasion of Ukraine is “the most egregious case of aggression we’ve seen. If you don’t prosecute Putin for this now, you might as well kiss the crime of aggression, goodbye forever.”
While details still remain vague, three models have emerged:
A Tribunal based on a multilateral treat between Ukraine and will partners.
A tribunal based on an agreement between Ukraine and the U.N. endorsed by a United National General Assembly resolution
A hybrid chamber rooted in Ukraine’s domestic law with international assistance.
There is no international consensus on any of these models.
However, February 24, 2024 dramatically changed the political landscape.
Europe was shaken by the war on its eastern flank as Russian troops and tanks launched a massive invasion of neighboring Ukraine, igniting the most severe political and military crisis on the continent since World War 11.
Russian President Vladimir Putin offered his justification in a national address. His aim, to “demilitarize” and “de-Nazify” Ukraine, he said. He repeated unsubstantiated allegations that Ukrainian forces had been carrying out a ‘genocide’ in breakaway pro-Russian territories in the East. Putin had used similar rational in earlier military campaigns in eastern Ukraine and in Crimea.
On the first day of the invasion, U.S. Defense officials said Russia appeared intent on “decapitating” Ukraine’s government and installing a pro-Russian regime in its place.
As evening fell, Russian Grad missiles struck Ukraine’s capital, further north, Russian forces captured the Chernobyl nuclear power plant, which suffered a catastrophic meltdown in 1986. Within hours of the invasion, Ukrainian civilians began to flee west, an exodus that prompted Poland to eventually establish nine reception centers along its border to address what soon became the largest movement of refugees since World War II.
Moscow’s invasion of its western neighbor appeared to be part of a post-Soviet playbook launched in the breakaway Russian republic of Chechnya led by then Prime Minister Vladimir Putin. In 1999, the aim of the brutal military campaign was to ensure Chechnya would remain part of Russia. Another former republic, neighboring Georgia, was the next target and then Crimea and the eastern provinces of Ukraine. The Russian pattern was set and, it seemed, so was the Western reaction; muted at best, a tacit recognition of Putin’s ‘sphere of influence.’
After a NATO summit in Romania, in 2008 in which Vladimir Putin was an invited guest, the Associated Press wrap up of the meeting noted:
“The Kremlin realized it doesn’t have the power to force the West to reverse its recognition of Kosovo’s independence or persuade Washington to drop its plan to deploy missile defenses in Poland and the Czech Republic. But Putin has had notable success in blocking NATO membership for its former Soviet neighbors — Ukraine and Georgia.”
Putin read those signals, says Broody as an indication that NATO powers “accepted this Russia idea that, in the neighborhood, they can do as they please.”
The massive invasion in February 24, 2022 jolted the international system. But what was it about this invasion that was so different than those before?
“The illegality is crystal clear. The brutality of the campaign, systematic terror inflicted on the Ukrainian people,” says Klaus Kress, Professor of Criminal Law. He formerly served in the German Federal Ministry of Justice.
“The deliberate and systematic violation of the rules governing the conduct of war is as bad as it can get,” he adds. There were additional factors that changed the stakes.
“A brutal all-out war of aggression based on the denial of the identity of an entire people, based on the idea that a nation does not deserve to exist, to just sweep it away? A reaction at this moment in time is just imperative,” insists Kress.
“This was a full frontal ‘fuck you’ invasion,” says Peter Pomerantsev, a British journalist, and the author of “Nothing is True and Everything is Possible: Adventures in Modern Russia. He was born in Ukraine and launched a Ukraine justice project known as The Reckoning in the early days of the Russian invasion.
He adds that Europe hasn’t seen a major Second World War style land grab for a long time. “We thought states didn’t do that anymore.”
Shock quickly gave way to a profound and unprecedented “justice mobilization” including squads of international war crimes investigators dispatched across Ukraine. Six European countries signed on to a Joint Investigative Team tied to the International Criminal Court (ICC) as Ukraine revived a dormant 2014 referral.
The UN and the EU created commissions to document war crimes.
The US State Department announced the creation of the Conflict Observatory “to identify, track, and document possible atrocities in Ukraine.” Organized in the weeks leading up to the Russian invasion, the Observatory partnered with outside war crime investigators who specialize in OSINT, open source investigations, using publicly available information, satellite imagery, phone videos, and social media, to piece together evidence of war crimes and to track down war criminals.
Russian President Vladimir Putin’s world became smaller in March 2023 after the International Criminal Court issued the first indictment and arrest warrant for Putin and another Russian official over alleged involvement in the abduction of Ukrainian children and teenagers. The warrant means Putin could be arrested and sent to The Hague if he travels to any ICC member state.
He has been indicted for both his individual criminal responsibility and his command responsibility. The two charges indicate that he bears responsibility for committing the alleged crimes and for failing to control his subordinates who allegedly committed those crimes.
But there is a limit to the ICC’s jurisdiction, as Van Schaack pointed out in her Berlin address.
“There is at present a jurisdictional gap in our system of international justice, the International Criminal Court does not have jurisdiction over the crime of aggression committed in Ukraine.”
CLOSING THE ACCOUNTABILITY GAP
On the 5th day of the Russia’s invasion of Ukraine, Phillipe Sands, a British specialist in international law, made the case for an international tribunal that has the jurisdiction to charge Russia’s top leadership with the crime of aggression in a guest editorial published in the Financial Times. “Why not create a dedicated international criminal tribunal to investigate Putin and his acolytes.?” he proposed.
“None of the war crimes in Ukraine would be taking place if the war had not been started,” Sands explained in an interview from his home in Paris. Sands is the director of the Centre on International Courts and Tribunals at the University College London. The invasion itself is the crime, says Sands, “The reality is that war crimes and crimes against humanity are only occurring because of the crime of aggression. It is the crime from which all the other crimes follow.”
The crime of aggression was the central crime in Nuremberg. Robert H. Jackson, the U.S. chief prosecutor at post world war II tribunal addressed the issue in his opening remarks of the 1945 trial.
“The ultimate step in avoiding periodic wars, is to make statesman responsible to law. And let me make clear that while this is first applied against German aggressors, if it to serve a useful purpose, it must condemn aggression by other nations, including those which sit here now in judgement.”
“Those which sit here now in judgement” the western allies, including Moscow, would be tested by the 2022 Russia invasion of Ukraine.
Within days of Sand’s proposal in the Financial Times, Ukraine’s President urged his western partners to support an international court established through a vote at the United Nation General Assembly, skirting the Security Council where Moscow has a veto.
The crime of aggression, says Sands, is “The only way, with any degree of certitude, that you reach Mr. Putin and those who sit with him.”
Crafting a workable statute to address individual responsibility had been a long-time goal of international jurists. After WWI, the treaty of Versailles had a provision that could be used to prosecute the German Kaiser, but “the Allied Powers didn’t get their hands on him,” says Creighton University law professor Michael Kelly.
The Kaiser cut his own deal, Kelly explained, “He cut a deal with the Dutch government to go into exile. The Netherlands basically said, ‘okay, cousin, you can come to the Netherlands as long as you bring your gold,” and Kelly added, “He ended up dying in 1943, just living out his life in the Netherlands.”
Aron Trainin, a prominent Soviet legal expert, began to grappled with the question of personal responsibility in times of war in the 1930’s. He formulated a statute he termed the “crime against peace’ which would later evolve into the widely recognized “crime of aggression.”
“So, it did not come out of the blue, but it was still a significant breakthrough. And I would call it one of the major moments of norm crystallization,” explains German law professor Klaus Kress.
The Charter of the International Military Tribunal – issued on Aug. 8 1945, recognized criminal responsibility for waging an aggressive war, which became the core crime at the Nuremberg Trials. Trainin legal work formalized a significant change in the legal framework of the laws of war.
Trainin’s statute criminalized aggression, defined individual criminal responsibility, while stripping away two tradition defenses, explains Kelly.
“The first defense is sovereign immunity, right? I’m the foreign minister, I have sovereign immunity. So, it strips away sovereign immunity.” In addition, explained Kelly, it strips away the “I was just following orders” defense.
“That leaves them vulnerable to criminal jurisdiction. So, Nuremberg and Tokyo are really huge in this regard,” he said referring to the post-WWII tribunals.
Fast forward to the present and more than a year after the Russian assault on Ukraine the bold promises of accountability and the defense of international law have yet to be translated into a concrete plan. At the Nuremberg Academy, Kress urged the international community to revive the crime of aggression. He gave his remarks in the historic court room 600 where the crime of aggression was tried for the first time in history.
“Countless losses have been inflicted upon Ukrainians by the Russian aggressor and none of those are war crimes, crimes against humanity of genocide,” said Kress. Under the law of armed conflict, he pointed out, “unavoidable, non-excessive civilian death or injury” is acceptable as a result of direct attacks on military object.
The crime of aggression changes legal responsibilities, Kress explained.
“Only by prosecuting the crime of aggression can Russia’s leadership be held criminally responsible for that vast part of the war’s violence. The question is then: How has it come that despite this powerful Nuremberg legacy on crimes against peace, we are left today with a glaring gap in the international legal architecture concerning the crime of aggression”
THE CRIME OF AGGRESSION – THE SUPREME INTERNATIONAL CRIME.
At the Nuremberg Tribunal, the WWII alliance, in particular Washington, Paris, London and Moscow, were united in a desire to punish the surviving German leadership for Hitler’s war of expansion. However, five decades later, those powers were not prepared to provide a permanent international court with jurisdiction over state-on-state aggression. In the post-cold war era, western allies were wary of including the crime of aggression, a statute that could potentially limit political and military flexibility.
When negotiations for the establishment of the International Criminal Court (ICC) commenced, defining the crime of aggression was so contentious the negotiations were postponed.
By 2010, the crime of aggression was incorporated into the ICC statutes, however, a majority of court members initially chose not to ratify it. The statute only took effect in 2018 after powerful court members successfully advocated for significant limits to the court’s jurisdiction.
Remarkably, the United States played a pivotal role in the establishment of the ICC in 1998, flexed its considerable muscle in the qualifications and revisions of the crime of aggression, and then declined to join the court, primarily due to objections over the court’s jurisdiction to prosecute U.S. politicians or military personnel.
Hostility to the court ebbed in the Obama administration but reached a peak during the Trump administration, and still remains potent within the U.S. Department of Defense. The Biden administration is strongly supporting the ICC’s role on Ukraine with the support of Congress. However, the DOD continues to block cooperation with the ICC despite legislation passed in December 2022 instructing U.S. agencies to assist on issues connected to Ukraine.
A Yale study on Russia’s kidnapping of Ukrainian children in collaboration with the U.S. State Department’s Crisis Observatory has yet to be sent to the ICC due to Pentagon objections.
Russia also did not become a member of the ICC, nor did Ukraine, but following Russia’s annexation of the Crimean Peninsula, Kyiv accepted ICC jurisdiction in 2014 without formally joining the court. The case languished for lack of budget then was revived soon after the Russian invasion as European capitals pledged support. 14 European Union countries have also launched investigations, including Germany.
“Then comes the big million-dollar question,” says Michael Kelly, “What are we going to do about war crimes and aggression in Ukraine?” It’s now or never, he says, but cautions that U.S. reservations, especially at the U.S. Department of Defense remain strong. There is also a political reservation to the so-called leadership crime, he says, “We are not willing to embrace the ‘full enchilada’ of watching a nuclear-powered permanent member of the UN Security Council be subject to an international tribunal”
International law experts and human rights activists are also divided on support for Ukraine’s bid to convene an international war crimes tribunal. Many would prefer to see the ICC strengthened and there are proposals to reopen negotiations to widen ICC jurisdiction for the crime of aggression.
“It’s about a long-term vision of international criminal justice,’ says Wolfgang Kaleck, a leading human rights lawyer and the director of the European Center for Constitutional and Human Rights (ECCHR) in Berlin. “This vision has been harmed by the UK and the US in a substantial way,” he says referring the U.S. and British negotiators who diluted the ICC’s jurisdiction. “They are only in favor of international criminal justice when it’s in their interest.”
Kaleck points to the 2003 Iraq war, which was not a war of self-defense, nor sanctioned by the United Nations. The legality of the war has been widely debated.
“You cannot let the EU, the US, and the UK go impugned for the Iraq war and then set up a tribunal for aggression,” says Kaleck. He prefers pursuing an amendment to the ICC statute expanding jurisdiction, but that could be a long and messy path.
A UKRAINE MOMENT
Even so, if the world is having “a Ukraine moment,” then the International Criminal Court is having a revival due to Ukraine. Karim Khan, a British barrister, elected to lead the court in 2021 pledged to improve the record of the court and revitalize a struggling institution.
“The International Criminal Court has a legitimacy problem”, says Phillipe Sands. In twenty years of operations, “every single person who’s been indicted before the ICC is Black and African. And Blacks and Africans don’t have a monopoly on international crime. “
Russia’s invasion of Ukraine is a test for the ICC’s chief prosecutor, two years into a nine-year term.
In March, 2023, Khan, known for his assertiveness both in the courtroom and the political arena, made a significant move announcing the ICC had issued an arrest warrant for Russian President Vladimir Putin and a senior Kremlin official, Maria Lvova-Belova. The warrants were issued in connection with their alleged involvement in the deportation of Ukrainian children.
Citing the Rome Statutes, Khan argued that Putin and Lvova-Belova “bear criminal responsibility for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.”
In a statement announcing the sealed indictment, Khan alleged: “These acts, amongst others, demonstrate an intention to permanently remove these children from their own country. At the time of these deportations, the Ukrainian children were protected persons under the Fourth Geneva Convention”
While Russia is not a party to the Rome Statue that established the ICC, the court does have jurisdiction over war crimes, crimes against humanity, and genocide committed in Ukraine based on Ukraine’s 2014 official complaints which accepted the Court’s jurisdiction.
By targeting Putin, himself, Khan’s approach showcased the ICC’s capability to hold high-ranking officials accountable for crimes committed in Ukraine even with the Court’s limited jurisdiction.
Khan’s strategy is also appears aimed to proactively address the growing demands to create a separate international war crimes tribunal for the crime of aggression which he views as “self-indulgent” and “a time-consuming distraction” that, he says, could fragment the pursuit of justice.
But Khan’s indictment announcement has done nothing to dampen the debate. Ukraine’s leadership hailed the work of the ICC but pressed for more. In a surprise trip to The Hague in early May Ukraine’s President, Volodymyr Zelenskyy called again for a “true, full-fledged tribunal,” a “Nuremberg” to guarantee the “non-repetition” of this crime.
Ukraine urges a vote at the United Nation General Assembly, arguing that it would confer greater legitimacy and international impact, and at the same time avoid conflicts with Ukraine’s national constitution. Article 125 states: “The establishment of extraordinary and special courts shall not be permitted.”
“Impunity is the key that opens the door to aggression,” Mr. Zelenskyy said. “If you look at any war, any war of aggression in the history, they all have one thing in common: The perpetrators of the war didn’t believe they would have to stand to answer for what they did.”
For Zelenskyy and many Ukrainians, the crime of aggression becomes all important as the nation’s very existence is threatened. “In memory of all those whose lives were taken by Russia, by its terror,” he proclaimed, “Only one Russian crime led to all of these crimes. This is the crime of aggression. The start of evil and the primary crime. And that can only be enforced by the Tribunal”
Ukraine’s partners in Eastern Europe offered immediate support, including the Baltic states, Poland and the Czech Republic. In addition, the Parliamentary Assembly of the Council of Europe and the European Parliament passed resolutions of support for an international tribunal. The president of the European Commission, Ursula von der Leyden, stepped up calls for a special tribunal as has an unexpected backer, the French government.
In contrast, the nations in the so-called Global South have reservations. On the one-year anniversary of the invasion, the U.N General Assembly voted overwhelming in favor of a resolution calling for the end to the war and a demand that Russia leave Ukrainian territory.
However, 32 of the 180 voting states abstained—including African countries and influential powers such as India and South Africa.
Non-Western states appear willing to condemn Moscow’s aggression in general terms, but so far, seem less willing to back more concrete punishments for Russia. In a recent vote, a mild paragraph about accountability got push-back, including from Nigeria, a major African country that has been broadly supportive of Ukraine.
With their own national interests, precarious economies in a post-COVID era, and dependence on aid from Russia and China, few are eager to choose between great powers in a war that has little to do with their concerns and is thousands of miles away.
“As somebody who has working in Africa for the last 30 years, I’m just so aware of this perception that international justice kicks in against enemies and outcasts,” says former war crimes prosecutor Reed Broody about the prospect of a positive vote at the General Assembly.
“Is it more important to prosecute Putin for aggression in Ukraine? Certainly, but at the cost of consecrating the idea that there is one justice for the West and there is another justice for enemies of the West?” says Broody.
It is a pressing question acknowledged by Ambassador Van Schaack in her address at the Pilecki Institute in Berlin.
“We have to acknowledge that sense of selective justice”, she told the audience and described the dilemma as a failure of the international community. “We have to find ways to build a system that will be more universal, so that when other states are experiencing terrible atrocities, the international community responds to the same degree that it has in this particular conflict.”
“What you see is building the airplane as they are flying it,” says Michael Kelly describing the efforts to find a justice venue for Ukraine, “And then as it continues flying, they keep rebuilding it”
Russia has been courting African countries for years. China regularly sends envoys, now Ukraine has stepped up outreach to the Global South. Ukraine’s top diplomat, Dmytro Kuleba made a second trip to Africa this spring. Zelenskyy’s attended an Arab League meeting and then the Group of 7 summit in Japan.
European diplomats from countries that back an international tribunal urge a concentrated Western lobbying campaign to change votes. More skeptical UN observers predict the proposal might get an underwhelming 60 votes or no more than 90 votes in the General Assembly.
Those votes, says Stephen Rapp, a former U.S. ambassador for war crimes, “can’t be solely European. They have got to have more. They can’t have the whole global south abstaining. You need to have some affirmative votes from the Global South.”
With a positive U.N General Assembly vote far from certain, proponents of an international war crime tribunal point out the costs.
“My major concern is that in five years’ time, we find ourselves with a panoply of criminal proceedings for war crimes and crimes against humanity against low grade Russians being caught. And the main people, the top table are off the hook completely, says international legal expert Phillipe Sands, “And we point to these sorts of crappy little trials, as indicating the justice is done, when in fact, they show the very opposite. Manifest injustice is being done because the top people who are responsible for this actually get off the hook.”