In the months leading up to Russia’s February 2022 invasion of Ukraine, as Russia massed its troops along the Ukrainian border and the world speculated endlessly as to Vladimir Putin’s intentions, much of the talk of the international community focused on the best way to deter Putin from ordering an invasion. If Putin assessed the costs of invasion as outweighing the benefits, the thinking went, he would have no rational choice but to stand down.
The well-telegraphed threat of economic retaliation didn’t do the trick. When the Russian Duma voted in favor of Putin’s appeal to recognize the independence of the Donesk and Luhansk People’s Republics as independent nations, the sanctions came thick and fast: the European Union slapped asset freezes and travel bans on all members of the Duma and other high-profile Russian officials; the United States government sanctioned the entity in charge of the already-built-but-not-yet-certified Nord Stream 2 gas pipeline; and US, UK, and EU sanctions have hit Russia’s central and private banks. It's been made clear that further tranches of sanctions will be forthcoming if Russia continues to escalate. If the sanctions would somehow magically only hit Putin and his cronies (instead of affecting the downtrodden, as with previous sanctions hitting, oh, Iraq, Iran, Venezuela, North Korea, Cuba, Afghanistan), these would be all justified and logical steps, but they nevertheless didn’t achieve their stated goal: Russia has invaded despite knowing that sanctions would come, having prepared for years to insulate its economy against these very actions.
Wider civil society has shown a righteous condemnation of the Russian aggression and solidarity with Ukraine. Mass protests have broken out across Russia and the rest of the world. The sporting community has shown Russia the cold shoulder through UEFA relocating the Champions League final, Formula 1 canceling the Russian Grand Prix, and chess’s governing body banning Russia (its biggest superpower) from holding officially sanctioned events and canceling all Russian corporate sponsorships. The list goes on from other walks of life. These are virtuous and important measures which may one day help bring an end of the war, but they were not enough to prevent it from commencing.
Thankfully, there has been no serious suggestion that the deterrent will come (at least at this early stage) by way of an international military response. The United States and its allies had made clear for weeks leading up to the invasion that they would not defend Ukraine militarily, and thus far are sticking to that line. Good. A war between nuclear powers would not be in anyone’s interest. Let’s cross our fingers that the Western thinking stays this way.
So, what else could be done?
Let’s answer that question with a question: What’s normally supposed to happen when someone breaks a law? They face the judicial system, of course. Starting an illegal war of aggression is just about the gravest crime that a person can commit. And even the most maniacal warmonger would be moved to retreat if there were a realistic prospect of being sent to a prison cell in the Hague. So, why are there no calls for Vladimir Putin’s arrest and prosecution? In theory, the option is there, but no world leader has proposed to use it. Can you possibly imagine why?
Wars of aggression are illegal, and make no mistake, this war is illegal. The prohibition on the use of force by one nation against another is the cornerstone of the modern international order, as codified in Article 2(4) of the Charter of the United Nations. The prohibition has also attained the status of a “peremptory norm” (or jus cogens) of international law, meaning that it’s also a crime under unwritten international law, binding on all nations whether they like it or not. The crime of aggression addresses the very top of the military chain of command: it applies to any person “in a position effectively to exercise control over or to direct the political or military action of a State” who plans, prepares, initiates, or executes a use of force against another nation in manifest violation of the UN Charter. Quite apart from the commission of war crimes within a war (such as the direct targeting of civilians in the conduct of hostilities), the crime of aggression applies to the initiation of an unlawful war, regardless of how that war progresses.
Throughout most of history, the decision to initiate a war was one of policy, and conquest of foreign lands was a sign of a leader’s status. However, there’s no room in the modern world for Charlemagne, Napoleon, or Alexander the Great—today, wars are illegal except when waged in self-defense, with permission of the United Nations Security Council, or in pursuit of a peoples’ liberative uprising against an oppressive government. In all circumstances, annexation of foreign territory is strictly prohibited.
So, you might ask, how did the Iraq War happen? That was a generational crime for which there was never even the flimsiest of legitimate justifications, and yet George Bush isn’t in prison, and Tony Blair just received a fucking knighthood. Russia successfully annexed Crimea in 2014—and Putin is not only still a free man but waging war on the same country from which he stole that land not eight years ago. The laws may exist, but where are their teeth?
The teeth are small, and can only devour small fish. They aren’t strong enough to take down a lion, and that’s completely by design.
The post-World War II era started on a hopeful note in terms of the prosecution of illegal wars: the UN Charter of 1948 made the prohibition on the use of force explicit, and the Nuremberg and Far East Tribunals prosecuted 12 German and eight Japanese leaders for crimes against peace (as it was known then). If the international community had made good on its desire to immediately thereafter establish a permanent international criminal court and had submitted to that court’s jurisdiction, we would be living in a different world.
But while the powers of the world—led by the United States—were happy with the righteous prosecutions at Nuremberg, they did not want any part of establishing a paradigm which meant that their personnel would be at risk of any consequences for their illegal actions. And no world leader with any sway ever dared suggest that other leaders should be held personally responsible for illegal wars going forward. Because when it comes to the crime of aggression, world leaders have skin in the game.
Name a world leader who you know has been prosecuted for the crimes of aggression since the WWII tribunals? There are none. War crimes, yes; when a leader overextended their hand and became personally involved in the crimes of their footsoldiers—see Charles Taylor, Slobodan Milošević (who died in prison while awaiting trial), and Hissène Habré, for just some examples. But a leader going down for the commission of an illegal war itself? Never. Can you imagine? Goodness gracious me!
The United States is the world’s lone remaining world superpower, and the unacceptable prospect of US personnel being answerable for international crimes led to its infamous efforts to poison the drafting of the Rome Statute of the International Criminal Court, in particular strenuously opposing the proposal to grant the Court universal jurisdiction over crimes against humanity and war crimes. The US then refused to ratify the treaty. And then to further drive home the point, in 2002 George Bush signed into law the so-called “Hague Invasion Act”, which grants the President powers to use all means necessary and appropriate to bring about the release of an American or an ally who is being detained by the Court. Put more plainly: It is official U.S. policy that the President will order an invasion of the Hague if it ever attempts to put an American on trial. Other major world powers, most notably nuclear states China, Russia, Pakistan, Israel, and India have likewise snubbed the Court by refusing membership.
Predictably, the development of the law on the crime of aggression lagged well behind each other major pillar of international criminal law. When the Rome Statute was concluded in 1998, the content of the other three crimes within the Court’s jurisdiction (genocide, war crimes, and crimes against humanity) were codified in the Statute. The state parties couldn’t (read: didn’t want to) come to a consensus on the crime of aggression, and so kicked the can down the road—the provisions relating to that crime would be negotiated and adopted at some future stage. The consensus on the law was not reached until 2010, and the Court’s jurisdiction over the crime did not commence until 2018, 20years to the day after the signing of the original statute. The statue’s definition of the crime of aggression itself was indeed in line with the existing law and had not been not watered down, but the leaders of the world ensured that legal trickery meant that the crime’s application would be limited: parties to the statute can opt out of the crime’s jurisdiction (as no fewer than 80of the Court’s 123 parties have done so, including France, Australia, and the United Kingdom); unlike the Court’s other crimes, aggression committed on the territory of or by a national of a non-state party can’t be prosecuted except at the direction of the UN Security Council; and the Security Council retains a suspensive veto over any investigations conducted by the nominally independent ICC Prosecutor which it doesn’t like.
There’s zero chance that Vladimir Putin will ever see the inside of a prison cell for initiating the war against Ukraine, because the international legal order is set up so as to comprehensively protect against that outcome. Prosecution in the International Criminal Court is not an option, since neither Russia nor Ukraine are members, and anyway the Security Council retains its disruptive influence under its statute. Other ad hoc international tribunals could theoretically be set up, but through which mechanism? Russia’s Security Council veto all but ends that debate in any scenario short of Putin being deposed and subsequently fed to the wolves by a new Russian regime. An enterprising nation (or coalition of nations) could bring a domestic prosecution under the principle of universal jurisdiction, but in that case, the gloves would come off. Absolutely no world leader wants to set a precedent that one of their number could find themselves in the dock. In the minds of the world’s most powerful, international criminal justice is for scapegoating footsoldiers and small-timer leaders who put no distance between themselves and the war crimes they ordered. Any nation getting any bright ideas to the contrary could fairly expect to be railroaded into submission, as happened to Belgium in the 1990s.
This de facto immunity is, of course, a moral outrage and a colossal miscarriage of justice. It's also a squandering of the most effective leverage against the world's most powerful criminals, and it guarantees there will never be peace on Earth until the paradigm changes.
As the war in Ukraine rages, and as the calls for peace continue and the sanctions pile up, members of the anti-war coalition will be waiting with bated breath for Joe Biden’s call for Vladimir Putin to face criminal justice, and for his acknowledgement that this would require the United States leading the way to a new world order by submitting to the jurisdiction of the International Criminal Court and vowing to not stand in the way of any prosecutions of American personnel and leaders. Who knows how long we’ll be waiting.
