The recent indictments by the International Criminal Court (ICC) against Vladimir Putin and Maria Lvova-Belova offer a potential glimmer of hope that the horrendous atrocities perpetrated by Putin and his comrades will result in justice and accountability – and this at the highest international level.
Don’t underestimate the significance and importance of this development.
It is particularly noteworthy that the ICC Prosecutor has indicted Putin and Lvova-Belowa with the crime of the abduction of children – which I have raised in Parliament on numerous occasions.
During a series of Parliamentary events marking this 75th anniversary year of the promulgation and passing of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, we have focused discussion on Genocide and atrocity crimes. The abduction of children can constitute a prohibited act under Article II of the UN Convention.
During their recent visit to London I met Andriy Kostin , the Ukrainian Prosecutor General and Karim Khan KC, the ICC Prosecutor, and commended them for his courage and determination to take forward this prosecution.
Progress via the ICC investigations and indictments is welcome but it can’t be the end of the story. All of us who have studied the heart rending, chilling, reports from places like Mariupol and Bucha are only too well aware of the scale of maleficence. Investigators around the world are examining this evidence of war crimes, crimes against humanity, and other acts of genocide.
But one crime that has so far been left without proper investigation and the prospect of being examined by a court is “the crime of aggression” – which given Putin’s unwarranted and unprovoked decision to let slip the dogs of war in Ukraine has been the curtain raising crime unleashing a trail of unspeakable atrocities and depredations.
The crime of aggression is not subject to the investigation of the ICC.
As Russia is not party to the Rome Statute – which established the ICC- the Court does not have jurisdiction over Putin’s crime of aggression.
The only way it could be given authority to act would be by a decision of the UN Security Council and, as sure as night meets day, Russia (or China’s CCP with its “partnership without limits” with Putin) would use their veto to prevent such a referral from happening.
Underlining the near farcical implausibility of the aggressor sitting in judgement on itself, Russia has just been given the rotating Presidency of the Security Council. It took up its position on April 1st – and, no, it wasn’t an April Fool’s joke.
In the longer term this risible parody of international justice vividly demonstrates the case for removing the Security Council specific right to veto referrals of atrocity crimes to the ICC.
But what about the short term?
What about now, and ensuring that the “crime of aggression” is investigated and prosecuted? Is there another way?
Democratic nations who say they believe in the rule of law must move heaven and earth to ensure that the courageous and gravely wronged Ukrainian nation obtains justice; that Putin and his henchmen are made accountable for their criminality: however long it takes.
As Longfellow, the English poet, once wrote: “Though the mills of God grind slowly; Yet they grind exceeding small; Though with patience He stands waiting, With exactness grinds He all.”
Such long term determination is the only way to send a clear message to others with similar malign intentions. They need to understand that though the mills grind slowly there will be no impunity for their egregious crimes.
No tribunal currently exists to deal with the crime of aggression but one could be established. And this could be done via a UN General Assembly Resolution which is not subject to Putin’s veto.
There are a growing number of countries in support of the establishment of such an ad-hoc tribunal to deal with this one specific crime.
It is welcome that, having sat on the idea for several months, the UK and the US have now announced their support for the creation of such an ad-hoc tribunal.
There are alternative ideas and views about how best to expedite it but no obstacles that are insurmountable; no difference that can’t be overcome – and last week I participated in a call with the Ukrainian Justice Ministry, which underlined both its practicality and its importance to Ukraine.
There are precedents for the creation of such ad hoc tribunals (for example in the cases of Cambodia and Sierra Leone).
Opposition to the idea usually focuses on whether a tribunal for the crime of aggression would take away the resources from the ICC and undermine its work: a concern which deserves to be addressed.
However, the costs of establishing such a tribunal would not be significant – whereas the cost of not doing so – by the abject failure to uphold justice – would be significant. And, commendably, there is an increased awareness in many nations that the ICC needs to be provided with extra financial assistance to enable it to do its work (and the UK Government deserves to be commended for leading by example with some recently announced additional funding). And the same is true for other mechanisms that hold perpetrators to account.
When it comes to justice, we should not cut corners. The cost of failing to combat impunity will be far greater than the nominal costs of making this happen.
Nor would the work of the ad-hoc tribunal for the crime of aggression undermine the work of the ICC – not otiose or in conflict – as that Court is not empowered to examine the crime of aggression. Quite the reverse. The two tribunals would be complementary and help to ensure justice and accountability for the horrific crimes unleashed by Putin on 24 February 2022.
Ensuring justice and accountability for international crimes is never easy.
Think of the Nazis and the Nuremberg trials.
In his closing address at Nuremberg, the British prosecutor, Hartley Shawcross, spoke of the countless deaths of the people who had been slaughtered “in battles that ought never to have been.”
Putin’s crime of aggression in Ukraine has also led to battles that ought never to have been.
Following the invasion, the slumbering western democracies finally awakened to the enormities of Putin’s intentions. Many countries have come together rallying in support of brave and besieged people. But we must build on this and show other dictators and authoritarians what justice and accountability for such crimes should look like.
David Alton (Lord Alton of Liverpool) is a Crossbench Peer who serves on the Joint Committee of the House of Commons and House of Lords for Human Rights. In 2022 he and Dr.Ewelina Ochab published “State Response to the Crime of Genocide” (Palgrave Macmillan).