Aggression and genocide: two terms with a tendency to offend and divide are at the heart of the debate over the Russia-Ukraine conflict and international law.
8 October 2022 – As I have noted in several posts, my film and series of videos and articles on the life of Jacques Semelin, the Holocaust, genocide, and dehumunization – as well as my coverage of the war in Ukraine – included filming at the Auschwitz death camp outside Kraków, and a visit to the Galicia Jewish Museum located in the historic Jewish district of Kazimierz in Kraków. The Museum does a marvelous job documenting the remnants of Jewish culture and life in Polish Galicia, which used to be very vibrant in this area. It also does a remarkable job of putting the Holocaust, genocide, and dehumunization in perspective.
I also noted in a previous post that the Museum has the most incredible book shop I have ever seen and it was there that I picked up a copy of The Captive Mind (published in 1953) by the Polish poet and Nobel laureate Czeslaw Milosz. I had read Milosz’s “To Begin Where I Am”, the most comprehensive selection of his essays. But The Captive Mind was different. It remains possibly the best book ever written about the lure and trap of totalitarian ideology.
In this classic work, Milosz remarks on our tendency to see the world we have always lived in as natural. The buildings on our street “seem more like rocks rising out of the earth” and the clothes we wear as we do our jobs in those buildings “are exactly what they should be.” This, we assume, is the fundamental order of things — an order we believe can never change.
Until it does, that is.
One morning, when we step onto that same street and see it “littered with glass from bomb-shattered windows,” Milosz notes that we begin to doubt the “naturalness” of our world. Those doubts deepen when we see other buildings reduced to “scaffoldings of plaster, concrete and brick,” their inhabitants now roaming those same streets in search of a loaf of bread or potatoes. After passing the third or fourth corpse on the street, what we assumed was natural turns out, quite literally, to be nonsense. The concrete turns out to be little more than convention.
As a result, Milosz writes, we find that we acquire new habits quickly. This process of re-habituation, however, occurs in different contexts. It can happen, as the catastrophic events in Ukraine reveal, under the pressure of war. The impossible hardens into the possible, the unthinkable cedes to the thinkable, and the unspeakable becomes spoken about over morning coffee.
Being a member of the Foreign Press Association, and having been involved with the International Criminal Tribunal for the former Yugoslavia that dealt with war crimes that took place during the conflicts in the Balkans in the 1990s, I know war crimes have been historically hard to investigate and often even more challenging to prosecute. This is especially true when prosecutors seek to hold leaders or former leaders accountable. For clear cases of war crimes, often the main challenges are determining who is responsible, and what evidence exists that can establish culpability.
It an unlikely scenario for Putin.
But the bottom line remains: international law may give you a moral vocabulary to talk about what’s happening in Ukraine, but given the impossibility of criminal trials all you can do is trigger a much faster response from the international community with sanctions and boycotts – and provide the Ukrainians with any and all of the weapons they need – tanks, rocket launchers, air defense, planes, etc. – to expel the Russians from the rest of Ukraine as quickly as possible, so as to save as many Ukrainian lives as can be saved.
But you must also collect war crimes information to honour those who were destroyed. Because violent conflicts that tear communities apart do not cease with the end of bloodshed; in the aftermath of violence, representations of the past often become a battleground themselves. In this collision between history and memory, addressing the wounds of the past becomes integral to reconstructing communities in the present. In the words of James Young, “History is what happened. Memory is the recollection that binds what happened to ourselves in the present”.
The relationship between memory and history is all the more fraught in the case of genocide. If there is always a chasm between the events of the past and our ability to comprehend them – if the past is a foreign country, as a British novelist once wrote – then that gap is even more challenging for scholars of genocide. The problem is not only that we struggle to accept that human beings can commit such acts of mass violence. The scale of killing also means that most victims do not have time to leave behind accounts and perpetrators often do not document their crimes, so that historians are faced with the challenge of how to reconstruct this past.
This is something I learned from Dr. Edyta Gawron, a historian who works as a Professor in the Institute of Jewish Studies, Jagiellonian University in Krakow, Poland, and who is also president of the management board that oversees the Galicia Jewish Museum I noted above. You can watch our conversation by clicking here.
And that is an abnormally long introduction for a piece I want to share from Le Monde – how will the world reckon with war crimes in Ukraine? It is part of a series they have run since the Ukraine War began. I have permission to share it and have translated the piece to English. It follows now.
How will the world reckon with war crimes in Ukraine?
Le Monde
17 September 2022
Philippe Sands displays restraint when talking about the war in Ukraine, attempting to “maintain some distance” in order “not to let himself be carried away by emotion and passion.” Nevertheless, he cannot deny the personal link that makes him a central figure in discussions concerning the terminology related to the conflict and the acts resulting from it. Particularly at issue are the meaning of two words that are shaking up the world of politics, diplomacy, and international justice: “aggression” and “genocide.”
In a complete coincidence, 12 years ago, the Franco-British lawyer and professor of law at University College London, was invited to participate in a conference in Lviv. At the time, he did not even know the name of this city in the west of the country, so central to Ukrainian identity. He then realized that it was the Ukrainian name for the city where his maternal grandfather was born and which he knew as Lemberg, from the Austro-Hungarian era. He accepted the invitation.
Mr. Sands then discovered that it was in Lviv, and more precisely at the school of law there, that Hersch Lauterpacht and Raphael Lemkin studied before developing two concepts that would revolutionize international law: “crime against humanity” and “genocide.” From the Nuremberg trials to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, these two ideas were to become the foundation of international law as we know it today. Drawing from family memory, the path of the two Jewish legal pioneers and the trial of Nazi officials, the lawyer assembled a masterful account from his research, East West Street: On the Origins of Genocide and Crimes Against Humanity (Weidenfeld & Nicolson, 2016).
‘Crime of aggression’
On February 24, 2022, Russia attacked Ukraine. While this was not Russian President Vladimir Putin’s first strike against the country, the scale of the invasion nonetheless took Europe and the world by surprise. Mr. Sands, with his experience before international courts, published an op-ed in the Financial Times as early as February 28 calling for an investigation of Mr. Putin for the “crime of aggression, an idea born at Nuremberg as a ‘crime against peace’.” The Ukrainian government immediately seized on the notion and, now advised by Mr. Sands, called for the creation of a special court on the crime of aggression to supplement the International Court of Justice (ICJ) and the International Criminal Court (ICC).
It is the trifecta of Mr. Sands’ own research into crimes against humanity and genocide, his personal ties to Lviv (to which he now returns every year), and his proposal for a way to try Russia’s crime of aggression that place him squarely at the heart of the worldwide debate currently raging over the Russia-Ukraine conflict.
After seven months of conflict, certain observations are evident. On the one hand, Europe has not experienced such war crimes since the conflicts that led to the creation in 1993 of the International Criminal Tribunal for the former Yugoslavia and – through the founding of the ICC, in 2002, in The Hague (Netherlands) – the subsequent invention of a new international criminal justice system. On the other hand, people’s minds have never been so bent on obtaining legal justice: in Ukraine, no one would dream of sacrificing justice on the altar of peace. It is impossible for anyone to imagine peace without justice, and everyone is convinced that legal justice is an essential condition for future peace.
There are two terms today that command international attention: the first is “aggression,” the Nuremberg “crime against peace,” or “crime of crimes” against a territory; the second is “genocide,” the “crime of crimes” against humanity. Both terms tend to cause feelings of offense and division.
Mr. Putin launched the war on February 24, at 5 am, by ordering the Russian military to invade Ukraine in order to “demilitarize” and “denazify” the country, which had been independent since 1991. He wanted, in other words, to make the Ukrainian army capitulate and thereby to overthrow the government in Kyiv. The Russian president himself is responsible for placing the war on a legal – even moral – footing by invoking as justification the supposed ongoing “genocide” against Russian-speaking Ukrainians.
May Mr. Putin ‘reap what he sows’
In the opinion of Mr. Sands, the Russian president has “shredded” the United Nations Charter – “the closest thing to an international constitution” – and “poses the gravest challenge to the post-1945 international order.” Noting that the two international courts, the ICJ and the ICC, are not empowered to judge the crime of aggression in the specific case of the invasion of Ukraine, Mr. Sands, in his February 28 op-ed, has proposed creating a special “international criminal tribunal to investigate Putin and his acolytes for this crime.” The lawyer has further pointed out that “after all, it was Soviet lawyer Aron Trainin who did much of the legwork to bring ‘crimes against peace’ into international law,” persuading the Americans and British to introduce it into the Nuremberg statute. “There can be no appeasing of Putin,” he said. “Chechnya, Georgia, Crimea and now all of Ukraine. On it goes. Let him reap what he has sowed. Investigate him personally for this most terrible of crimes,” the crime against peace.
In Kyiv, Ukrainian President Volodymyr Zelensky has turned to the lawyers around him: Andriy Smyrnov, the deputy head of the presidential administration, Dmytro Kuleba, the foreign minister, Mykola Gnatovskyy, who left Kyiv in 2022 to become a judge at the European Court of Human Rights and Anton Korynevych, appointed special ambassador for international humanitarian law. Together with Mr. Sands, they are laying the legal foundation for a special court. “Invading a territory, intending to annihilate an independent state, is an illegal use of force and a violation of the United Nations Charter,” said Mr. Gnatovskyy. “A war of aggression is a criminal act.”
Existing courts cannot indict Mr. Putin for Russia’s aggression in Ukraine. The main judicial body of the United Nations (UN), the ICJ, which is responsible for settling disputes between states, does not indict individuals. And the ICC, which does prosecute individuals and does not recognize the diplomatic immunity of leaders, is only investigating war crimes, crimes against humanity and genocide in Ukraine. For the ICC prosecutor to investigate the crime of aggression, the implicated nations would have to have ratified the court’s statute – which to date neither Ukraine nor Russia has done.
Mr. Gnatovskyy welcomed “Philippe Sands’ idea of a new mechanism, created by a multilateral treaty, based on the model of Nuremberg.” The fact that this special tribunal cannot be established under the auspices of the United Nations, given Russia’s veto in the UN Security Council, does not trouble the lawyers in Kyiv. “Nuremberg [agreement and charter] was created by just four states, then supported by many countries. It is a matter of political will, then general acceptance,” said Mr. Gnatovskyy. “We prefer that the crime of aggression be tried by a special court rather than by the ICJ, because this would allow for the trial of individuals, and thus lead directly to the top [of Russian power],” added Mr. Korynevych.
‘A European Matter’
For Mr. Sands, whose proposal could revolutionize the way international law deals with a country’s aggressors, the lack of general acceptance does not represent an obstacle to the legitimacy of a tribunal. “Almost no country outside of Europe would agree to a tribunal for the crime of aggression, because of the Iraq War [in 2003] and the fact that many countries think there is a double standard when it comes to the United States. These countries speak of the hypocrisy of the West, and even the neocolonial nature of the ICC, and would not support this initiative,” he reasoned. “It is therefore up to the Europeans to create a tribunal based on the crime of aggression. It’s a European matter.”
From a pragmatic standpoint, he also noted that “the crime of aggression is the only crime that leads directly to Mr. Putin.” An indictment would reinforce the pariah status of Russian leadership. Moreover, unlike war crimes, crimes against humanity and genocide, which require a thorough investigation of the perpetrator and their command, aggression has already been proven by Moscow’s official statements and the fact that it sent its army into Ukraine.
“The aggression against Ukraine is established fact and easy to investigate. Those indicted will be the people assembled by Putin, who publicly approved the invasion of Ukraine,” said Mr. Smyrnov. He was referring here to the February 21 meeting of the Russian Security Council, broadcast on television, on recognizing the self-proclaimed Luhansk and Donetsk people’s republics, which allowed the Russian president to launch his “special military operation.”
Legal front
President Zelensky gave the green light in April to the special tribunal project, which is now in the hands of politicians and diplomats. Lithuania has become the first ambassador for the idea, supported by Kyiv’s allies in Central Europe and the Baltic states. Ukraine would like to convince Washington, London, Paris and Berlin to be the co-founding powers of the special tribunal. Discussions are taking place in the European Union (EU), the Council of Europe and other international institutions.
In order for the tribunal to carry “moral authority, it is important that it have the support of as many states and international organizations as possible,” Mr. Gnatovskyy said. “It remains to be seen whether the civilized world is ready to call aggression, ‘aggression,’ and to send those responsible before a court of justice,” Mr. Smyrnov said.
A diplomatic step was taken during the summer with Dutch support. While the project’s backers initially thought of proposing that the tribunal be located in Strasbourg alongside the European Court of Human Rights, the Netherlands began discussions with Kyiv so that The Hague – already the seat of the ICJ and the ICC, and the true capital of international justice – could host the interim office of a future tribunal on the crime of aggression.
In addition to its military resistance, Ukraine is now also leading an international diplomatic counteroffensive that includes a legal justice effort, complementing the sanctions against Russia. President Zelensky, who during the first weeks of the war had entertained the idea of dialogue with Moscow – even though Russia at the time was aiming to conquer Ukraine and refusing to negotiate with various mediators – has now been persuaded, after the revelation of Russian war crimes in Boutcha at the beginning of April, of the necessity for opening a legal front. Following the recent discovery of graves in Izium, he said that the Russians “will answer for their crimes, as the Nazis did, on the battlefield and in court.”
Over the course of seven months of conflict, the legal battle has taken on an importance that the world has never before known to occur while a war is ongoing. The notion of impunity for war criminals is no longer tolerable. Furthermore, while it may still be acceptable to some politicians and diplomats, it is no longer so to those it affects most: the victims. The world has changed a lot in the 30 years since the creation of the first international tribunal during the Bosnian war. Regardless of the fluctuations in diplomatic discourse, it would seem that amnesty and impunity are no longer permitted.
Moscow ‘manipulates the concept of genocide’
The first case to be brought following the Russian invasion was by Kyiv, on February 27, before the ICJ in The Hague, which is highly respected on the diplomatic scene. In its complaint, Ukraine blamed Russia for manipulating the concept of genocide in order to justify an illegal military invasion, by accusing Ukraine of committing this crime against the population of the two eastern provinces of Luhansk and Donetsk, in the Donbas. In a first opinion, on March 16, the ICJ judges ordered Russia, by 13 votes to two (the votes of the Russian and Chinese judges), to “immediately suspend military operations.” Under international law, the UN court’s opinion is binding. Yet Moscow has ignored it.
Kyiv’s ambassador to international legal bodies, Mr. Korynevych, has welcomed the fact that the European Union and 43 countries have supported Ukraine in its application. Along with another complaint filed with the ICJ in 2014 regarding Crimea and Donbas, these proceedings on the charge of genocide will continue, with Russia able to submit its objections. “A false accusation does not give a country the right to go to war against another country. Moscow has violated the 1948 Genocide Convention,” said Mr. Korynevych. “Ukraine has placed itself on a legal footing, not one of force or propaganda,” commended magistrate Françoise Bouchet-Saulnier, advisor for international law at Doctors Without Borders and author of the Dictionnaire pratique du droit humanitaire (La Découverte, 2013), (Practical Guide to Humanitarian Law, Rowman & Littlefield Publishers, 2013).
On February 28, the day after the ICJ proceedings were opened, Ukraine filed another complaint with the European Court of Human Rights (ECHR) in Strasbourg for “massive violations of human rights.” The ECHR does not judge war crimes, and its objective is to try to enforce the European Convention on Human Rights. In a first opinion, issued on March 1, the court asked Russia to “refrain from launching military attacks against civilians.” This too, Moscow has disregarded. In a war where fighters on both sides are paying the highest price, Russian attacks on civilians have only intensified over the months.