War crimes in Ukraine: a growing movement against the crime of aggression

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The war in Ukraine has given the relatively unsexy field of international law a moment in the spotlight. An unprecedented global effort to investigate and prosecute war crimes is underway, with local and international investigators fanning out across the war-torn country to collect evidence of Russian atrocities – even as fighting continues.

The focus on war crimes has also revived interest in questions about the strengths and limits of international law in limiting aggression and imposing accountability.

Three Russian soldiers have already been convicted by Ukrainian courts. Money and resources have been poured in to help Ukrainian Prosecutor General Iryna Venediktova investigate nearly 20,000 alleged breaches of the laws of war his team signed up. The International Criminal Court, which opened its own investigation in March, sent its largest field deployment ever to Ukraine. An infusion of funding followed. And the United States sent Attorney General Merrick Garland to Ukraine, where he announcement the creation of the Department of Justice’s War Crimes Accountability Team, which will be led by the United States “Nazi Hunter” Eli Rosenbaum.

The outpouring of international attention reflects, in part, the brazenness of Russia’s violations of the laws of war. burning the images of mass graves, bombed-out hospitals and child amputees, combined with harrowing accounts of rape, torture and forced deportations, sparked widespread moral outrage. Some accuse racism and geopolitics also play a role, with Western countries all too willing to ignore the abuses inflicted on black and brown populations in other parts of the world, especially in conflicts where the West is complicit.

What are war crimes, and is Russia committing them in Ukraine?

The Russian invasion breathed new life into an international justice system widely seen as toothless and ineffective. At its center is the ICC, which celebrated its 20th anniversary on Friday. The tribunal was created to prosecute the most serious international crimes, including genocide. In two decades, the ICC has drawn criticism for having only three war crimes convictions and five for obstruction of justice. It proved difficult to get the suspects to the seat of the court in The Hague. African leaders have for years accused the tribunal of bias.

The refusal of Russia, China and the United States to accept the Court’s jurisdiction has not helped – thus creating an international legal system that leaves the most powerful countries off the hook.

The George W. Bush administration actually withdrew the US signing of the court’s founding treaty, citing fears that US officials or troops could be tried. ‘The International Criminal Court is bothering the United States,’ Bush said told reporters in July 2002, when his war in Afghanistan was almost a year old and he was setting the stage for a since widely condemned invasion of Iraq – including, accidentally, by Bush himself — as unjustified and illegal.

United States thwarted an attempt by the ICC in 2003 to investigate crimes committed in Afghanistan. Years later, the Trump administration sanctioned former ICC prosecutor Fatou Bensouda for her efforts to investigate possible US war crimes in this conflict. Although the Biden administration lifted the sanctions, current prosecutor Karim Khan chose last year not to focus about possible crimes committed by American troops there.

During the Russian invasion, however, the United States reconciled with the ICC, but did not go so far as to become a party to it. Some experts see the war as a chance for the court to prove its worth. “It’s ICC time,” said David Crane, founding chief prosecutor of a special international tribunal for Sierra Leone, told the Associated Press. “They have to get it right.”

The conflict has also revived the debate on the possibilities of using international law to punish a crime for which the ICC does not have jurisdiction: the war crime itself.

One of the most famous pacifists of the 19th century was a Russian. Writer and peace activist Leo Tolstoy is the anti-war hero of Yale historian Samuel Moyn’s book “Humane: How the United States Abandoned Peace and Reinvented War.” The policy of pacifism that rose to prominence during Tolstoy’s time gave way to a global concern to make warfare more humane, writes Moyn, arguing that the emphasis on waging “clean ” – conducted according to the rules, with fewer casualties – ultimately served to perpetuate conflict.

The Nuremberg trials of senior Nazi officials after World War II focused on the new core crime of aggression itself, more than on the particular atrocities of the war. But in the decades that followed, a paradigm of war crimes focused on aberrant acts committed during the conduct of war, such as defined in international agreements, has taken precedence over international accountability efforts a change that Moyn warned undermined efforts to prevent war in the first place.

The brutal conventional battles unfolding in Ukraine seem to have awakened the West, at least, to the inherent horrors of war. Much of the bombings and airstrikes that have killed soldiers and civilians and displaced more than 12 million Ukrainians is perfectly legal under the laws of war. But in a chorus of condemnation, world leaders, including President Biden, decried the invasion itself as unjust and illegal. Calls are mounting to prosecute Russian President Vladimir Putin for assault.

Tolstoy would “celebrate the fact that the war in Ukraine has brought many people back to thinking about aggression, about illegal war, in a way they might not have had in the past since Vietnam,” Moyn told me. Legal experts on both sides of the Atlantic view this paramount crime – the illegal war crime – as the best chance of ever bringing Putin to justice.

“Aggression is relatively provable,” James Goldston, director of the Open Society Justice Initiative, told me. “Unlike some war crimes and crimes against humanity, aggression is by definition a crime of leadership.” Goldston’s team has set up a sample indictment to build a case against Putin and other senior Russian officials.

Ukraine could bring charges domestically, and Venediktova’s office has compiled a list of 623 suspects for the crime of aggression. But a more powerful international court may be needed for the uphill battle of accountability, legal experts say.

European lawmakers are leading the charge to establish a special tribunal to prosecute senior Russian officials for the crime of aggression. “The worst crime of all is war itself, brutal and baseless aggression against a peaceful neighbour,” said a delegation from the Council of Europe’s Parliamentary Assembly. said after a June visit to Kyiv.

Still, the proposal has many skeptics. During a visit to the Post’s newsroom last month, EU Justice Commissioner Didier Reynders said his office had “numerous legal concerns” about a special tribunal.

It is too early to tell if this moment will revive the long dormant global peace movement. Calls to prosecute Putin for assault have been accompanied by a remarkable the West’s embrace of militarism in support of Ukraine, marking a turning point from the isolationist tendencies of recent years.

Germany has broken with its decades-old reluctance to send weapons into conflicts. NATO is strengthening its European footprint. The United States has approved tens of billions of dollars in military and humanitarian aid to Ukraine, with support for major arms deliveries spanning the entire political spectrum. (And although the negative economic ramifications of the conflict have dominated global headlines, many people benefit from the war, as historian Jackson Lears points out in a review of Moyn’s book.)

A certain war fatigue seems to be setting in. But US and European leaders have doubled down on their resolve to help Ukraine secure military victory – not just for its sovereignty, they say, but to shore up the threatened “rules-based international order”. .

This rationale for supporting the war has prompted accusations of hypocrisy. “I have certainly never seen anyone from the ‘global south’ respond to that sentence with anything approaching a straight face,” wrote Sam Greene, professor of politics at King’s College London, in a tweet thread. “We have a lot to atone for.”

When the alternative is a global reality in which wars of conquest can be fought with impunity, supporting Ukraine’s fight may offer the best chance of securing a more lasting world peace, Greene suggests. But it will also require a more even application of justice.

As Moyn said, “I think a lot of people are wondering what steps can we take to make the concern about aggression apply to more states more often, rather than once in a lifetime? “

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