President Vladimir Putin's decision to attack Ukraine is the greatest threat facing the international order created since 1945 on the idea of the rule of law, the principle of self-determination for all peoples and the prohibition of the use of force.
It is not the first time that Russia has taken military action in the territories it now wants to occupy: in September 1914 it occupied the city of Lviv and forced tens of thousands of inhabitants to flee to the west, including my grandfather, who was ten years.
The Soviet Union came back for another slice in September 1939 and again in the summer of 1944, this time seizing control of the city and holding it until Ukraine gained independence in 1991.
Therefore, the use of Russian military power in these areas is not unknown, although the events of the past week have caused shock among Europeans who have lived for three generations without experiencing military aggression of this magnitude.
The story doesn't just disappear, and memories are easily revived.
One of the things that is different today is that there are rules to protect us from this type of action, enshrined in the Charter of the United Nations, the closest thing we have to an international constitution.
What Putin has shattered are the most important commitments of the Charter.
In his televised address, he alleged a number of outlandish motives for the invasion: a Great Russia, a fake Ukraine, a Nazi Ukraine, a genocide being committed against the ethnic Russian population, and so on.
Putin has made his bet hoping that the West will blink.
After the failures of Western powers, including a failed and illegal war in Iraq and the recent crumbling of political will in Afghanistan, as well as the acceptance of oligarchs' money and reliance on Russian gas, Putin hopes they will not have the courage to face it.
Perhaps he is right, but that gamble is a very serious challenge, one that cannot be addressed with sanctions and financial measures alone.
Much more is needed, and as soon as possible.
Faced with such a flagrant violation of the rules, it is lawful to take joint action to protect Ukraine and the fundamental rights of its population, with the supply of military equipment, measures to prevent Russia from using its aircraft and, ultimately, with soldiers on the ground to impose safe zones, draw boundaries and prevent Russia from crossing them.
There is also the issue of criminality to take into account, although labels like that don't make me very happy.
The use of military force by Putin is a crime of aggression, an illegal war, a concept that was created in Nuremberg under the name of “crimes against peace”.
The horrifying images that we have seen seem to show that there are attacks directed against the civilian population, which constitutes a war crime and could well be against humanity (a legal concept whose origin, like that of the term genocide, dates back precisely to the city of Lviv).
The International Criminal Court —daughter of the Nuremberg Tribunal— has jurisdiction over some of the crimes committed on Ukrainian territory (war crimes and crimes against humanity, but not aggression).
The Russians are subject to your jurisdiction,
and the fact that Putin is president does not confer immunity.
ICC Prosecutor Karim Khan has the power to open a formal investigation and, if supported by the evidence and authorized by the judges, proceed to indictment and trial.
However, the ICC has a loophole, as its jurisdiction does not yet extend to the crime of aggression perpetrated on the territory of Ukraine.
Why not create an international criminal court dedicated to investigating Putin and his acolytes for this crime?
After all, it was a Soviet jurist, Aron Trainin, who did much of the legwork to introduce "crimes against peace" into international law.
As Francine Hirsch has pointed out in her book
Soviet Judgment at Nuremberg
, it was largely Trainin's ideas that convinced the Americans and the British to include "crimes against peace" in the Nuremberg Statute and in the court proceedings. accusation against the prosecuted Germans.
Putin knows all about Nuremberg all too well: his older brother died when he was two years old in the siege of Leningrad, and he comes across as a defender of the famous 1946 ruling. Three years ago he chided the European Parliament for putting He doubts the conclusions of the Court: that the origin of all that horror was in the “Munich betrayal”, which allowed the annexation of Czech territories with the vain hope of appeasing Hitler.
Putin cannot be appeased.
Chechnya, Georgia, Crimea and now all of Ukraine.
And so on.
Let him reap what he has sown, including the Nuremberg legacy.
Let him be personally investigated for this heinous crime.
Pillipppe Sands
is Professor of Law at University College, London, and the author of
East-West Street.
On the origins of “genocide” and “crimes against humanity
(Anagram).
Originally published in
the Financial Times.
Reproduced with the autor's permission.
Rogers, Coleridge & White Ltd., 20 Powis Mews, London W11 1JN, UK
©
Philippe
Sands, 2022
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