Nuremberg II: steps taken towards a Tribunal for Putin and his henchmen

Intro

I. "Nuremberg I" – the Trial of the German "Major War Criminals"

I.1 The Statute of the International Military Tribunal (IMT)

After the military defeat of the "Greater German Reich," the Allied victorious powers tried the German "major war criminals" in Nuremberg. Adolf Hitler, the "supreme major war criminal" by committing suicide ^[1] had understandably avoided his certain death sentence by hanging and the probable display of his body on Moscow's Red Square. The "Nuremberg Trials" set standards for the further advancement of international criminal law (ICL). The "Nuremberg Judgment" is regarded as a legal precedent for condemning wars of aggression, which is why it often comes up in discussions about a tribunal for Putin. According to Article 6a of the Statute of the Nuremberg IMT, as a "crime against peace" (as the "crime of aggression" was still called at Nuremberg), was considered the "planning, preparation, initiation or conduct of a war of aggression or of a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy to carry out any of the foregoing acts." The punishability of wars of aggression was the main point of contention among the Allies in the preparation of the Nuremberg Trials. They exempted their own wars of aggression from punishability through a restrictive clause in the introductory sentence of Article 6, which only considered the states of the "Axis Powers." Three-quarters of a century later, Russian President Putin still exempts from punishment for his war of aggression against Ukraine, albeit without explicitly referring to this clause. Wars of aggression had already been outlawed in the Pact of Paris of 27 August 1928 (Kellogg-Briand Pact). What was new was their punishability. Previously, only states were obliged to refrain from acts of aggression in accordance with their international treaties, not individuals.

The West is pursuing the establishment of a new special criminal court to try Russia's major war criminals, a "Nuremberg II." If a trial before a special tribunal for Putin actually takes place, it would be in absentia of the primary accused. The prerequisite for a transfer of Vladimir Putin to a "Special Tribunal on the Russian Crime of Aggression against Ukraine" would be a military defeat of Russia on its soil, which is an unrealistic idea given Russia's nuclear arsenal. Putin's extradition, even if he should survive an eventual removal from the Moscow Kremlin, is not to be expected – unlike in the case of Slobodan Milošević. The (acting) President of the "Federal Republic of Yugoslavia" was extradited in 2001 by then Prime Minister Zoran Đinđić to the International Criminal Court (ICC) in The Hague, where he was charged with war crimes.

I.2 The four "core crimes" of the Rome Statute of the ICC

However, the ICC cannot exercise its jurisdiction in the case of Russia, because Russia is not a state party; it has not ratified the Rome Statute (nor has Ukraine, for that matter). For crimes of aggression, the ICC only has jurisdiction if a state party is concerned. An exception to this is made, if the UN Security Council (UNSC) mandates the ICC to investigate. In the case of Russian aggression against Ukraine, there will be no Security Council mandate because Russia would certainly veto it. However, the ICC has jurisdiction when the effects of a crime of aggression extend to the territory of a state that has recognized the jurisdiction of the ICC. Ukraine has not ratified the Rome Statute; however, in the case of the Russian annexation of Crimea, it has recognized the jurisdiction of the ICC on an "ad hoc" basis under Article 12, paragraph 3. Ukraine could thus formally recognize the exercise of international criminal jurisdiction for certain crimes on its territory. Although not the "crime of aggression," but the other three "core crimes" – "genocide," "war crimes," and "crimes against humanity" – can be charged not only before the ICC but also before national courts. According to Prof. Stefanie Bock, in the case of war crimes, genocide, and crimes against humanity, state responsibility and criminal responsibility of individuals can be separated – at least formally.^[2]

I.2.1 "Crime of aggression" – the "supreme international crime”

The crime of aggression is the cause of all other crimes. The International Military Tribunal's (IMT) statement of reasons for its judgment reads,

"To initiate a war of aggression [...] is not only an international crime; it is the supreme international crime differing from other war crimes, in that it contains within itself the accumulated evil of the whole."^[3]

On 11 June 2010, the States Parties to the ICC agreed on a definition of the crime of aggression in Kampala, Uganda. It was a surprising compromise between the Permanent Members of the UN Security Council (UNSC), who had previously claimed the sole authority over determining aggression, and the remaining states, who demanded an independent ICC. The parties to the Rome Statute decided in Kampala to activate the ICC's jurisdiction over a "crime of aggression" as soon as possible, which finally happened on 17 July 2018 – 20 years after the adoption of the "Rome Statute" in 1998, with the "crime of aggression" remaining undefined. However, the jurisdiction of the ICC was considerably weakened by a controversial "threshold clause". The "Kampala Compromise" distinguishes between an "act of aggression contrary to international law" and the "crime of aggression." Accordingly, not every violation of the general prohibition of the use of force (UN Charter, Article 2, No. 4) entails individual responsibility. Only qualitatively and quantitatively serious violations of international law are relevant under criminal law, which constitutes a crime only if there is a serious manifest violation of the UN Charter. In order to be classified as a "crime of aggression," the relevant acts listed in Art. 8bis, paragraph 1, must "by their nature, gravity and extent constitute a manifest violation of the Charter of the United Nations (paragraph 2)." As a consequence of this threshold clause, the "grey area" under international law is not covered.

"The attack on Ukraine, however, is likely to meet the high criminal law requirements of the threshold clause,” judges Stefanie Bock.^[4]

I.2.2 "War crimes" – serious violations of international humanitarian law (IHL)

Legally, the term "war crime" is defined as a serious violation of IHL, which in turn is decisively determined by the "Hague Convention on Land Warfare" of 1907 and by the four "Geneva Conventions" of 1949 (Additional Protocols I to III of 1977 and 2005). IHL comprises the rules of international law of war. Its aim is to protect civilians, residential buildings, civilian infrastructure as well as the natural environment from the effects of hostilities in a war or an international armed conflict. A criminal act may be considered a war crime if committed intentionally (Art. 8, para. 2 lit. A, IV) of the ICC Statute. Para. 32, para. 1.1 of the Statute recognizes the "mistake of fact excluding intent," which Russia does not invoke at all. There is no mistake of fact that the killing of fugitives and the shelling of residential buildings are typical war crimes committed by the Russian army in Ukraine.

I.2.3 "Genocide" – strict international law requirements

The crime of genocide is defined in Art. II of the UN "Convention on the Prevention and Punishment of the Crime of Genocide" of 9 January 1948, and standardized in the same wording in Art. 6 of the Rome Statute of 17 June 1989. Russia and Ukraine signed the ICC Statute in 2000 but did not ratify it; however, both states have submitted to the Genocide Convention. In a claim based on the Genocide Convention, the International Court of Justice (ICJ) has jurisdiction only over genocide, not war crimes or crimes against humanity. Jurisdiction over these "core crimes" lies with the (ICC).

I.2.4 "Crimes against Humanity

If it cannot be proven that the physical-biological destruction of a group was intended, the legal option remains to classify the act in question as a "crime against humanity," according to Art. 7 of the Rome Statute, which is also a "core crime". The international criminal offense "crime against humanity" means a systematic attack against a civilian population; it was first outlined by an international treaty in 1945 in the "London Statute" for the IMT. Today, Article 7 of the Rome Statute of the ICC is the most important treaty-based legal source for crimes against humanity.

Flight, expulsion and forced resettlement, deportation, and "ethnic cleansing"

When people flee, they do not leave their homes by order of the authorities, but rather to escape a possibly life-threatening danger. They are not directly forced to leave their homes, but indirectly. If refugees or expellees are prevented from returning to their homes, their situation is no longer different from that of displaced persons. Expulsion is migration by force or by threat of force, mostly of religious or ethnic minorities, who are forced to leave their region of origin. It includes forced, permanent flight, expulsion, and forced resettlement from a state or during its reconstruction or transformation. Military actions against cities that trigger refugee flows fulfill the fact of expulsion. The term "expulsion" is neither legally nor historically clearly defined; for a long time, it was a political term of struggle. Historians Stefan Troebst and K. Erik Franzen define expulsion "as the forced population movement, involving the use or at least the threat of force, of people (mostly from religious or ethnic minorities) who are forced to leave their region of origin." This also includes flight, provided it is permanent and forced by violence or the threat of violence, and the expulsion or resettlement of a population group or minority from a state. Historian and migration researcher Jochen Oltmer defines it more succinctly: expulsion is a "spatial mobilization through violence without measures for resettlement."^[6] Since, in addition to massive persecution, there is also political and social discrimination or purely economic pressure of varying degrees, it is often difficult to distinguish expulsion from voluntary emigration or even voluntary large-scale relocation within a state without proof of expulsion or threat of violence. There is no consensus in research on how to clearly distinguish between flight and forced migration.^[7] This distinguishes expulsion from deportation, which refers to forced relocations within an area of rule. It is often difficult to distinguish it from other forms of migration. Deportation means the displacement of entire ethnic groups by state force to far-flung areas for long-term or lifelong forced residence. The historian Philipp Ther from the University of Vienna argues for the following definition"Expulsion is a forced form of migration across state borders. Those affected by it are forced to leave their homes under direct or indirect duress. Expulsion is irreversible and final. According to Philipp Ther, deportation differs from expulsion in that a later return is not excluded. Moreover, it always takes place within the territory of a state."^[8] The geographer Peter Meusburger equates expulsion with ethnic cleansing and defines it as "the removal of a population from its homeland across the borders of the expelling state by force or other coercive means." The term "ethnic cleansing" is also not a clearly defined legal term under international law but a political term, an euphemism for deportation, expulsion, and forcible resettlement of an ethnic group from its traditional settlement area in favor of another ethnic group. State-enforced resettlement has also often served the purpose of mixing different population groups in empires in order to prevent separatist activities.

[1] Mussolini's fate may have led him to order the burning of his body. The body of Benito Mussolini (and that of his mistress Clara Petacci and other fascists) was displayed – hung by the feet – at a petrol station in Piazzale Loreto in Milan on 29 April 1945. Mussolini had been captured together with his mistress Clara Petacci in Guiliano di Mezzegra on Lake Como on 28 April 1945 by the communist (partisan) brigade Giuseppe Garibaldi and shot – without trial. An execution by firing squad was staged after the killing in order to deceive the Western Allies, who had attached importance to a trial (à la Nuremberg).

[2] Stefanie Bock: Potenziale und Grenzen. Das Völkerstrafrecht im Ukrainekrieg (Potential and Limits. International Criminal Law in the Ukraine War), in: OSTEUROPA, 72. Jg., 1-3 / 2022, S. 87-99. Stefanie Bock holds the professorship for Criminal Law, Criminal Procedure Law, International Criminal Law and Comparative Law at the Philipps-University at Marburg.

[3] Kirsten Sellars: "Crimes against International Peace" and International Law, Cambridge (Cambridge University Press) 2013, p. 165.

[4] Stefanie Bock: Potenziale und Grenzen. Das Völkerstrafrecht im Ukrainekrieg, in: OSTEUROPA, 72. Jg., 1-3 / 2022, pp. 87-99.

[5] Douglas Irvin-Erickson, Is Russia Committing Genocide in Ukraine? Opinio Juris, 21. April 2022, <https://opiniojuris.org/2022/04/21/is-russia-committing-genocide-in-ukraine/>.Jonathan Leader Maynard, Is Genocide Occurring in Ukraine? An Expert Explainer on Indicators and Assessments, in Just Security, 6. April 2022, <https://www.justsecurity.org/80998/is-genocide-occurring-in-ukraine-an-expert-explainer-on-indicatorsand-assessments/>.Adam Oler, Portending Genocide in Ukraine? Articles of War, Lieber Institute at West Point, 21. März 2022, <https://lieber.westpoint.edu/portending-genocide-ukraine/>.

[6] Jochen Oltmer: Migration. Geschichte und Zukunft der Gegenwart (History and Future of the Present), Darmstadt 2020, p. 35. Jochen Oltmer is Professor of Migration History at the Institute for Migration Research and Intercultural Studies (IMIS) at the History Department of the University of Osnabrück.

[7] Ibid

[8] Philipp Ther: Deutsche und polnische Vertriebene. Gesellschaft und Vertriebenenpolitik in der SBZ/DDR und in Polen 1945 – 1956 (German and Polish displaced persons. Society and expellee policy in the SBZ/GDR and in Poland), Göttingen 1998, p. 99. Philipp Ther is the founder of the Research Center for the History of Transformations (RECET).