War crimes

In the last month of the year 1942, the Allied forces issued “the first joint declaration officially noting the mass murder of European Jewry and resolving to prosecute those responsible for violence against civilian populations”. After deliberating on multiple available recourses to bring the perpetrators of the incessant Holocaust to justice, a measure of conducting criminal trials of Nazi war criminals was tabled by the United States and accepted by the allied partners of World War II.

Today, a clamour for Nuremberg-style trials is being seen from the war-stricken Eastern European state of Ukraine and the international community. In his latest communique, Ukrainian President Zelensky has called for swift and decisive collective action against Russian atrocities and war crimes in the suburban Irspin and towns of Bucha, after Russian troops withdrew from the capital of Ukraine to focus on the Donbas and Crimea regions, entrenching themselves to sustain the takeover of the city of Mariupol.

Traumatizingly, dead bodies have been found in the streets of the said towns. Some were buried in hastily covered mass graves while others were packed in plastic bags and left in the backyards of houses to rot. Reports of local civilians being shot behind their heads and chest from close range are circulating to contribute to the angst of the human rights activists. Many corpses found had their hands tied behind their backs, suggesting captivity and adding to global shock and grief. Diplomatic ties are being cut off with Russia and investigations resulting in convictions are being called for. The question remains: can Nuremberg-styled criminal trials be conducted against President Putin and his acolytes, especially where the International Criminal Court would fail to try people holding the reins of the Kremlin?

The Nuremberg trials were the first of their kind. Prior to it, no example of an international criminal trial was available as a precedent. However, there have been previous cases of war crimes prosecution, such as the execution of Confederate army officer Henry Wirz (1823-65) for his mistreatment of Union captives during the American Civil War (1861-65); and the Turkish courts-martial held in 1919-20 to punish those responsible for the 1915-16 Armenian genocide. However, unlike the Nuremberg trials, these proceedings were held under the laws of a single country rather than a group of four nations (France, Britain, the Soviet Union, and the United States) with different legal traditions and procedures.

With the London Charter of the International Military Tribunal (IMT), released on August 8, 1945, the Allies finally defined the laws and procedures for the Nuremberg trials. The charter defined three types of crimes: crimes against peace (such as planning, preparing, starting, or waging wars of aggression or wars in violation of international agreements), war crimes (such as violations of customs or laws of war, including improper treatment of civilians and prisoners of war), and crimes against humanity (such as genocide) (including murder, enslavement or deportation of civilians or persecution on political, religious or racial grounds). It was found that both civilian and military authorities might be charged with war crimes.

Following the International Criminal Court’s (ICC) definition of war crimes as “grave breaches” of the Geneva Conventions (a set of humanitarian laws to be observed in war) and the precedent of the Nuremberg trials, a war crime trial against Putin and co can be visualised.

According to Jake Sullivan, the US national security adviser, there are four main sources of evidence: information gathered by the US and its allies, including from intelligence sources; Ukraine's efforts on the ground to develop the case and document forensics from the killings; material from international organisations such as the UN; and findings by global independent media, including photos, interviews, and documentation. However, there is a catch.

The ICC unfortunately lacks the membership of the US, China, Russia, and Ukraine. Although in the past, Ukraine has approved an investigation of the Russian annexation of Crimea back in 2013, it is most likely that an arrest warrant issued by the court would be met with non-compliance from Russia. One other hitch exists in the form of Russia’s veto power in the United Nations Security Council, a body that is responsible for achieving the implementation of ICC’s decisions.

The non-compliance with ICC’s proceedings has already been witnessed in the current Russo-Ukrainian conflict. Russian representatives failed to show up against Ukraine’s complaint filed in ICC under the Convention on the Prevention and Punishment of the Crime of Genocide 1948. Therefore, a special tribunal set up by a group of nations like that of the Nuremberg tribunal might be the only possibility. Such examples can be traced back to the past. Tribunals established to punish war crimes committed during the early 1990s Balkan conflicts and the 1994 Rwanda massacre might serve as precedents for Ukraine. Another example is the Sierra Leone Special Court, which was formed in 2002 with UN support to bring individuals responsible for atrocities committed during the country's civil conflict in 1996 to justice. However, these tribunals in the modern era only serve selective justice focused on African nations and a trial against the president of the Russian Federation can be discarded.

The Russian invasion can never be justified nor can the war crimes, violations of fundamental human rights, the sovereignty of any state, and/or the dignity of the citizenry. However, an expectation of war crimes trials at the ICC or something that resembles the Nuremberg tribunal may be a far-fetched idea. International law has never been robust and compelling enough to bring the war crimes of influential countries to justice. This will not happen in the Russo-Ukrainian conflict either – at least not until things change radically.

The writer is a lawyer.