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Ukraine\u2019s 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.<\/p>\n
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Makeleiv\u2019s 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.<\/p>\n
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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\u2019s waterways. These gatherings form a crucial part of Makeleiv\u2019s duties, to make his country\u2019s 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.<\/p>\n
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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.<\/p>\n
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\u201cUkraine will be the frontline of justice; the majority of cases will happen in Ukrainian courts,\u201d Van Schaack told the audience.<\/p>\n
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Ukrainian prosecutors have already recorded a staggering number of cases, more than 80 thousand individual war crimes. Ukraine\u2019s domestic courts focus on \u2018direct perpetrator\u2019 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.<\/p>\n
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In her Berlin address, Van Schaack described a higher court to address the crime of aggression.<\/p>\n
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\u201cThe U.S. favors an \u201cinternationalized\u201d tribunal deeply rooted within the Ukrainian national system,\u201d Van Schaack announced to a packed house.<\/p>\n
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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 \u2018internationalized tribunal\u201d 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.<\/p>\n
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Ambassador Van Schaack\u2019s 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 \u2018internationalized court\u201d is also a clear limit in how far the administration is willing go at this time.<\/p>\n
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Russia\u2019s top leaders and commanders accountable for actions committed on their orders, including President Vladimir Putin, would be immune from prosecution<\/a> in a Ukrainian court.<\/p>\n <\/p>\n Ukrainian officials muted criticism of the U.S. ambassador\u2019s 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.<\/p>\n \u00a0<\/strong><\/p>\n \u201cThis is where you get the fracturing,\u201d says Creighton University law professor Michael Kelly, \u201cUkraine 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.\u201d<\/p>\n <\/p>\n Ukraine has also sued Russia in the Law of the Sea Tribunal, the Permanent Court of Arbitration and the European Court of Human Rights.<\/p>\n <\/p>\n \u201cAll of these international tribunals are ruling in favor of Ukraine,\u201d says Kelly.<\/p>\n <\/p>\n \u201cThe world is living a Ukraine moment, the massive mobilization to investigate and prosecute war crimes in Ukraine has already surpassed any precedent,\u201d 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, \u201cTo Catch a Dictator: The Pursuit and Trial of Hiss\u00e8ne Habr\u00e9.<\/p>\n <\/p>\n \u201cNobody’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,\u201d adds Broody.<\/p>\n <\/p>\n Putin\u2019s invasion of Ukraine is \u201cthe most egregious case of aggression we\u2019ve seen. If you don’t prosecute Putin for this now, you might as well kiss the crime of aggression, goodbye forever.\u201d<\/p>\n <\/p>\n While details still remain vague, three models have emerged<\/a>:<\/p>\n \tA Tribunal based on a multilateral treat between Ukraine and will partners. <\/p>\n There is no international consensus on any of these models.<\/p>\n <\/p>\n However, February 24, 2024 dramatically changed the political landscape.<\/p>\n 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.<\/p>\n Russian President Vladimir Putin offered his justification in a national address. His aim, to \u201cdemilitarize\u201d and \u201cde-Nazify\u201d Ukraine, he said. He repeated unsubstantiated allegations that Ukrainian forces had been carrying out a \u2018genocide\u2019 in breakaway pro-Russian territories in the East. Putin had used similar rational in earlier military campaigns in eastern Ukraine and in Crimea.<\/p>\n On the first day of the invasion, U.S. Defense officials<\/a> said Russia appeared intent on \u201cdecapitating\u201d Ukraine\u2019s government and installing a pro-Russian regime in its place.<\/p>\n As evening fell, Russian Grad missiles struck Ukraine\u2019s 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.<\/p>\n Moscow\u2019s 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\u2019s \u2018sphere of influence.\u2019<\/p>\n \u00a0<\/strong><\/p>\n 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:<\/p>\n <\/p>\n \u201cThe Kremlin realized it doesn\u2019t have the power to force the West to reverse its recognition of Kosovo\u2019s 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\u00a0NATO membership\u00a0for its former Soviet neighbors \u2014\u00a0Ukraine\u00a0and Georgia.\u201d<\/p>\n <\/p>\n Putin read those signals, says Broody as an indication that NATO powers \u201caccepted this Russia idea that, in the neighborhood, they can do as they please.\u201d<\/p>\n <\/p>\n 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?<\/p>\n <\/p>\n \u201cThe illegality is crystal clear. The brutality of the campaign, systematic terror inflicted on the Ukrainian people,\u201d says Klaus Kress, Professor of Criminal Law. He formerly served in the German Federal Ministry of Justice.<\/p>\n <\/p>\n \u201cThe deliberate and systematic violation of the rules governing the conduct of war is as bad as it can get,\u201d he adds. There were additional factors that changed the stakes.<\/p>\n <\/p>\n \u201cA 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,\u201d insists Kress.<\/p>\n <\/p>\n <\/p>\n \u201cThis was a full frontal \u2018fuck you\u2019 invasion,\u201d says Peter Pomerantsev, a British journalist, and the author of \u201cNothing 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.<\/p>\n <\/p>\n He adds that Europe hasn\u2019t seen a major Second World War style land grab for a long time. \u201cWe thought states didn\u2019t do that anymore.\u201d<\/p>\n <\/p>\n Shock quickly gave way to a profound and unprecedented \u201cjustice mobilization\u201d 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.<\/p>\n <\/p>\n The UN and the EU created commissions to document war crimes.<\/p>\n <\/p>\n The US State Department announced the creation of the Conflict Observatory<\/a> \u201cto identify, track, and document possible atrocities in Ukraine.\u201d \u00a0Organized 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<\/a>.<\/p>\n <\/p>\n Russian President Vladimir Putin\u2019s world became smaller in March 2023<\/a> 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.<\/p>\n <\/p>\n 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.<\/p>\n <\/p>\n But there is a limit to the ICC\u2019s jurisdiction, as Van Schaack pointed out in her Berlin address.<\/p>\n <\/p>\n \u201cThere 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.\u201d<\/p>\n <\/p>\n CLOSING THE ACCOUNTABILITY GAP<\/strong><\/p>\n <\/p>\n On the 5th day of the Russia\u2019s 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\u2019s top leadership with the crime of aggression in a guest editorial published in the Financial Times. \u201cWhy not create a dedicated international criminal tribunal to investigate Putin and his acolytes.?\u201d he proposed.<\/p>\n <\/p>\n \u201cNone of the war crimes in Ukraine would be taking place if the war had not been started,\u201d 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, \u201cThe 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.\u201d<\/p>\n <\/p>\n 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.<\/p>\n <\/p>\n \u201cThe 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.\u201d<\/p>\n <\/p>\n \u201cThose which sit here now in judgement\u201d the western allies, including Moscow, would be tested by the 2022 Russia invasion of Ukraine.<\/p>\n <\/p>\n Within days of Sand\u2019s proposal in the Financial Times, Ukraine\u2019s 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.<\/p>\n <\/p>\n The crime of aggression, says Sands, is \u201cThe only way, with any degree of certitude, that you reach Mr. Putin and those who sit with him.\u201d<\/p>\n <\/p>\n 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 \u201cthe Allied Powers didn\u2019t get their hands on him,\u201d says Creighton University law professor Michael Kelly.<\/p>\n <\/p>\n The Kaiser cut his own deal, Kelly explained, \u201cHe cut a deal with the Dutch government to go into exile. The Netherlands basically said, \u2018okay, cousin, you can come to the Netherlands as long as you bring your gold,\u201d and Kelly added, \u201cHe ended up dying in 1943, just living out his life in the Netherlands.\u201d<\/p>\n <\/p>\n Aron Trainin, a prominent Soviet legal expert, began to grappled with the question of personal responsibility in times of war in the 1930\u2019s. He formulated a statute he termed the \u201ccrime against peace\u2019 which would later evolve into the widely recognized \u201ccrime of aggression.\u201d<\/p>\n <\/p>\n \u201cSo, 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,\u201d explains German law professor Klaus Kress.<\/p>\n <\/p>\n The Charter of the International Military Tribunal \u2013 issued on Aug. 8 1945, recognized criminal responsibility for waging an aggressive war, which became the core crime at the Nuremberg Trials. \u00a0Trainin legal work formalized a significant change in the legal framework of the laws of war.<\/p>\n <\/p>\n Trainin\u2019s statute criminalized aggression, defined individual criminal responsibility, while stripping away two tradition defenses, explains Kelly.<\/p>\n <\/p>\n \u201cThe first defense is sovereign immunity, right? I’m the foreign minister, I have sovereign immunity. So, it strips away sovereign immunity.\u201d In addition, explained Kelly, it strips away the \u201cI was just following orders\u201d defense.<\/p>\n <\/p>\n \u201cThat leaves them vulnerable to criminal jurisdiction. So, Nuremberg and Tokyo are really huge in this regard,\u201d he said referring to the post-WWII tribunals.<\/p>\n <\/p>\n 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<\/a>, 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.<\/p>\n <\/p>\n \u201cCountless losses have been inflicted upon Ukrainians by the Russian aggressor and none of those are war crimes, crimes against humanity of genocide,\u201d said Kress. Under the law of armed conflict, he pointed out, \u201cunavoidable, non-excessive civilian death or injury\u201d is acceptable as a result of direct attacks on military object.<\/p>\n <\/p>\n The crime of aggression changes legal responsibilities, Kress explained.<\/p>\n <\/p>\n \u201cOnly by prosecuting the crime of aggression can Russia\u2019s leadership be held criminally responsible for that vast part of the war\u2019s 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\u201d<\/p>\n <\/p>\n THE CRIME OF AGGRESSION \u2013 THE SUPREME INTERNATIONAL CRIME. <\/strong><\/p>\n <\/p>\n 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\u2019s 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.<\/p>\n <\/p>\n When negotiations for the establishment of the International Criminal Court (ICC) commenced, defining the crime of aggression was so contentious the negotiations were postponed.<\/p>\n <\/p>\n 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\u2019s jurisdiction.<\/p>\n <\/p>\n 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\u2019s jurisdiction to prosecute U.S. politicians or military personnel.<\/p>\n <\/p>\n Hostility to the court ebbed in the Obama administration but reached a peak during the Trump administration<\/a>, and still remains potent within the U.S. Department of Defense<\/a>. The Biden administration is strongly supporting the ICC\u2019s 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.<\/p>\n <\/p>\n A Yale study on Russia\u2019s kidnapping of Ukrainian children in collaboration with the U.S. State Department\u2019s Crisis Observatory<\/a> has yet to be sent to the ICC due to Pentagon objections.<\/p>\n <\/p>\n Russia also did not become a member of the ICC, nor did Ukraine, but following Russia\u2019s 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.<\/p>\n <\/p>\n \u201cThen comes the big million-dollar question,\u201d says Michael Kelly, \u201cWhat are we going to do about war crimes and aggression in Ukraine?\u201d It\u2019s 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, \u201cWe are not willing to embrace the \u2018full enchilada\u2019 of watching a nuclear-powered permanent member of the UN Security Council be subject to an international tribunal\u201d<\/p>\n <\/p>\n International law experts and human rights activists are also divided on support for Ukraine\u2019s 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.<\/p>\n <\/p>\n \u201cIt\u2019s about a long-term vision of international criminal justice,\u2019 says Wolfgang Kaleck, a leading human rights lawyer and the director of the European Center for Constitutional and Human Rights (ECCHR) in Berlin. \u201cThis vision has been harmed by the UK and the US in a substantial way,\u201d he says referring the U.S. and British negotiators who diluted the ICC\u2019s jurisdiction. \u201cThey are only in favor of international criminal justice when it\u2019s in their interest.\u201d<\/p>\n <\/p>\n 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.<\/p>\n <\/p>\n \u201cYou cannot let the EU, the US, and the UK go impugned for the Iraq war and then set up a tribunal for aggression,\u201d says Kaleck. He prefers pursuing an amendment to the ICC statute expanding jurisdiction, but that could be a long and messy path.<\/p>\n <\/p>\n A UKRAINE MOMENT<\/strong><\/p>\n <\/p>\n Even so, if the world is having \u201ca Ukraine moment,\u201d 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.<\/p>\n <\/p>\n \u201cThe International Criminal Court has a legitimacy problem\u201d, says Phillipe Sands. In twenty years of operations, \u201cevery single person who\u2019s been indicted before the ICC is Black and African. And Blacks and Africans don\u2019t have a monopoly on international crime. \u201c<\/p>\n <\/p>\n Russia\u2019s invasion of Ukraine is a test for the ICC\u2019s chief prosecutor, two years into a nine-year term.<\/p>\n <\/p>\n 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.<\/p>\n <\/p>\n Citing the Rome Statutes, Khan argued that Putin and Lvova-Belova \u201cbear criminal responsibility for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.\u201d<\/p>\n <\/p>\n In a statement announcing the sealed indictment, Khan alleged: \u201cThese 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\u201d<\/p>\n 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\u2019s 2014 official complaints which accepted the Court\u2019s jurisdiction.<\/p>\n <\/p>\n By targeting Putin, himself, Khan\u2019s approach showcased the ICC\u2019s capability to hold high-ranking officials accountable for crimes committed in Ukraine even with the Court\u2019s limited jurisdiction.<\/p>\n <\/p>\n Khan\u2019s 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 \u201cself-indulgent\u201d and \u201ca time-consuming distraction\u201d that, he says, could fragment the pursuit of justice.<\/p>\n <\/p>\n But Khan\u2019s indictment announcement has done nothing to dampen the debate. Ukraine\u2019s leadership hailed the work of the ICC but pressed for more. In a surprise trip to The Hague in early May Ukraine\u2019s President, Volodymyr Zelenskyy called again for a “true, full-fledged tribunal,” a “Nuremberg” to guarantee the “non-repetition” of this crime.<\/p>\n <\/p>\n 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\u2019s national constitution. Article 125 states: \u201cThe establishment of extraordinary and special courts shall not be permitted.\u201d<\/p>\n <\/p>\n \u201cImpunity is the key that opens the door to aggression,\u201d Mr. Zelenskyy said. \u201cIf 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\u2019t believe they would have to stand to answer for what they did.<\/em>\u201d<\/p>\n <\/p>\n For Zelenskyy and many Ukrainians, the crime of aggression becomes all important as the nation\u2019s very existence is threatened.\u00a0 \u201cIn memory of all those whose lives were taken by Russia, by its terror,\u201d he proclaimed<\/a>, \u201cOnly 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\u201d<\/p>\n <\/p>\n Ukraine\u2019s 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.<\/p>\n <\/p>\n 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.<\/p>\n <\/p>\n However, 32 of the 180 voting states\u00a0abstained<\/a>\u2014including African countries and influential powers such as India and South Africa.<\/p>\n <\/p>\n
\n \tA tribunal based on an agreement between Ukraine and the U.N. endorsed by a United National General Assembly resolution
\n \tA hybrid chamber rooted in Ukraine\u2019s domestic law with international assistance.<\/p>\n