In a stentorian Transatlantic accent, U.S. Supreme Court Justice Robert H. Jackson commenced the Nuremberg trials of 1945. “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility,” Jackson said. “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”
The court’s gallery was filled with a sea of (mainly) men—defendants, lawyers, witnesses—wearing clunky headphones for simultaneous translations into English, Russian, German, and French, as well as dozens of white-helmeted guards. Jackson, the United States’s chief prosecutor of Nazi war criminals at Nuremberg, told the courtroom that he intended to “utilize international law to meet the greatest menace of our times—aggressive war.”
While aggression may have been “the greatest menace” at the time of the post-war trials of Nazis, it was not until 2010 that the crime of aggression was added to the “core crimes” prosecuted by the International Criminal Court at the Hague. (The other core crimes are genocide, war crimes, and crimes against humanity.) A charge of aggression means going after the top leaders who ordered the atrocities. Because “almost every case of aggression results in the commission of other international crimes,” the Nuremberg tribunal called aggression “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Beyond Jackson’s Nuremberg declaration about aggression being “the greatest menace of our times,” Matthew Gillett, a lecturer at the law school of the University of Essex in the U.K., argued in 2013 that the Justice’s words are trumped by the court’s declaration that “crimes are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”—thereby positioning aggression as a crime of individual responsibility, not necessarily just a matter of war between states.
So when Ukrainian President Volodymyr Zelensky unexpectedly popped up at the Hague on May 4, he chose his words deliberately: “Impunity is the key that opens the door to aggression,” the wartime leader said. “If you look at any war, any war of aggression in 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.”
Because enormous impediments prevent Russian President Vladimir Putin from ever being tried for aggression—or any crime—at the ICC, Zelensky is calling for a special tribunal to bypass the court’s jurisdictional restrictions. In April, the G7 declared their support for such a tribunal to be established within Ukraine’s judicial system, and the Dutch government has offered to host it. Eurojust, the European Union’s judicial cooperation agency, announced it will create a center to support international investigative efforts to enhance investigations and facilitate case-building against Putin for the crime of aggression.
Defined as the use of military force by a state against the sovereignty, integrity or independence of another state—or what Russia has let loose on Ukraine—the crime of aggression is where the world must begin to find justice for the 40-plus million Ukrainians fighting for their lives and for their freedom. Ideally, Putin would be tried for this crime at the ICC. As Zelensky put it, “We all want to see a different Vladimir here in The Hague.”
But roadblocks prevent the former KGB operative from ever setting foot in this city of half a million on the North Sea.
There are two ways to bring a case of aggression before the court. Either the United Nations Security Council makes a referral, or the state being prosecuted must be one of the signatories to the 2010 amendment that added aggression to the core crimes before the ICC. The first is moot as long as Russia is a permanent member of the UN Security Council and can veto whatever it wants. The second is impossible since Russia is not a signatory to the statute that founded the ICC, let alone the amendment.
For now, Russia remains outside the court’s prosecutorial jurisdiction for the crime of aggression, which only bolsters the growing chorus of nations arguing for an independent tribunal that can get to Putin.
“If we want true justice, we should not look for excuses and should not refer to the shortcomings of the current international law but make bold decisions that will correct the shortcomings that unfortunately exist in international law,” Zelensky said.
In March, the ICC issued an arrest warrant for Putin for war crimes—specifically, the illegal deportation of children from Ukraine to Russia, where “many of these children have since been given for adoption.” The warrant would be actionable if Putin set foot in any of the 123 states that ratified the Rome Statute, which he is unlikely to do. In a bit of authoritarian solidarity, Hungary said in March that it would not arrest Putin if he entered the country.
But while the warrant may not lead to handcuffs being slapped on the Russian leader’s 70-year-old wrists, it’s not insignificant. It sends a message to Putin and his executioners that he’s likely done for if he ever leaves Russia. War crimes do not have a statute of limitations. And, as long as there is the political will to establish a tribunal in Ukraine to prosecute Putin, the specter of justice hovers over him.
Even without a trial or sentence, an arrest warrant for Putin is a historical declaration that no one is immune to prosecution, whether they rule a nation or control a nuclear arsenal. Ukrainians want to see a deposed Putin taken to trial like Hermann Göring, the Nazi-era Reichstag president, or Slobodan Milošević, the Serbian leader during the Balkan wars of the 1990s. (Unfortunately, each died in jail, escaping conviction and sentencing.) But even if Putin does not make it to a courtroom in the Netherlands, Ukraine, or elsewhere, his arrest warrant for war crimes has served some measure of justice. It serves as a foreshadowing of his being charged with the crime of aggression.
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people,” Jackson said at Nuremberg. “It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”