To initiate a war of aggression, therefore, is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole – Judgement of the International Military Tribunal, September 30th, 1946.
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| Defendants in the dock at the International Military Tribunal trial of war criminals in Nuremberg. November 1945. [A] |
The Charter of the Nuremberg Tribunal (more precisely, the International Military Tribunal) defined three broad categories of crimes:
The last two categories do not require further comment: the terminology remains in use.
Regrettably, crimes against peace may require some comment. It includes:
(a) starting either a war of aggression, in violation of treaties or
(b) taking part in a conspiracy to start such wars.
To the best of my knowledge, later law dropped (b). (a), however suspiciously overlooked, remains in use – Article 8 bis of the Rome Statute speaks of “war of aggression” under the new term “crime of aggression”.
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Jeremy Fernandez (ABC journalist and acting presenter of the Weekend Breakfast) interviewed Ben Saul (professor of international law, University of Sydney) this morning:
Jeremy Fernandez: What rules actually apply in such a brutal situation such as this [the Ukrainian war]?
Ben Saul: So, violations of the International Law of Armed Conflict are war crimes, which means every person bears criminal responsibility for violating them, and every country has a right to prosecute them before their national courts, even if they occurred in the territory of some other country.
JF: So, give us an example of what sorts of rules apply. Because it seems to be a free-for-all right now in Ukraine.
BS: So, obviously, deliberately attacking civilians or civilian objects or property is a war crime, unless, of course, civilian property is being used by the opposing side's military, and then it could be a legitimate military target. Indiscriminate attacks, which are attacks like using artillery shells or missiles on heavily populated urban areas - which are really unable to easily distinguish between a military target which you're trying to attack and all of the civilians who might be living nearby. Disproportionate attacks are also a war crime. That is trying to target a military objective but causing excessive civilian casualties relative to the military advantage there. There are also lots of very personal war crimes, like killing or executing prisoners of war in your custody, torture, sexual violence, hostage-taking, certain weapons are banned. So, there are many, many war crimes which could be relevant.
JF: So, it would appear - based on all those factors, all those points you've raised - every single one of them appears to be happening in Ukraine right now, would you say?
BS: There's a pretty full spectrum of war crimes being committed. I think that's pretty clear. Obviously, the difficulty for investigators is - particularly when dealing with attacks from long range on buildings and cities - to determine what was the intent or state of mind of the perpetrator. Because as I said, not every killing of a civilian is a war crime in war. The law of war tolerates the killing of some civilians, as long as it's not excessive in terms of the military advantage. That can be a difficult test to apply, but it does require building a very forensic case.
JF: From the Russian point of view very early on in this campaign, we saw the Ukrainian President say to the Russian people, "You are not the enemy." To the soldiers, "You are not the enemy. It is Vladimir Putin who is the enemy." And often in these situations you see that the men carrying out these attacks, the soldiers, say, "We were just following orders." How much does that stack up as a defence?
BS: Well, there's no defence of simply following orders. I mean, every soldier has an obligation to disobey a manifestly unlawful order, like to execute a prisoner. So, they bear criminal responsibility. But their commanders can also bear criminal responsibility. This doctrine of command responsibility means that commanders, of course, are not only responsible for ordering war crimes directly but also for a kind of negligence in failing to stop them. So, if they knew that their soldiers were committing war crimes and they did nothing to stop it, and stopping it was in their power because they're the commanding officer, then the commander can be responsible. That's true not only of military commanders but also of the civilian leadership in Russia as well.
JF: We've seen historically how it can take years, decades, for these sorts of war crimes to be brought to a hearing. What are the prospects of these war crimes being heard any time soon?
BS: So, I think there are different processes. The Ukraine prosecutor's office is already investigating 5,000 cases. And to the extent that Ukraine has captured Russian prisoners of war, and if any of them are responsible for war crimes, those trials could start really quite soon. On the other hand, building cases against the more senior military commanders, whether in Ukraine or back in Russia, or the civilian leadership of Russia, will take a much longer period of time because you have to trace back responsibility through that whole chain of command, you've also gotta get custody of them, and that's gonna be the real difficulty here. The International Criminal Court complements the national prosecutions of Ukraine, so it will only prosecute if Ukraine is unable, or unwilling, to prosecute the war crimes itself. Ukraine is clearly willing to prosecute as much as it can, but I think the International Criminal Court will have a role for the senior Russian leadership but also for any war crimes that Ukraine may have committed - and there have been reports of Ukraine soldiers potentially executing Russian prisoners of war - and the court could have a role in looking at those as well.
JF: Ben Saul, so great to have your analysis on the program. I have a feeling we'll be touching base with you as things develop in Ukraine. But thank you so much for waking up early and joining us.
BS: No worries. Thanks, Jeremy.
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Two observations:
Unfortunately, the current focus on war crimes in Ukraine is limited to categories (2) and (3) of the three broad categories of international crimes. On the one hand, this means that chances are only the little fish will be caught in the net: those two categories seem particularly well-suited to catch those low on the hierarchy. The big fish will breath with relief.
On the other hand, to exclude category (1) of the International Military Tribunal categorisation will not only facilitate that today’s big fish escape prosecution, it will prevent yesterday’s and tomorrow’s big fish to do the same. Maybe I am unduly pessimistic, but I believe wars of aggression will remain a feature of geopolitics. And call me paranoid, but I think there are many powerful people on both sides of this conflict (including Vladimir Putin, unless “regime change” takes place in Russia) happy and relieved with that.
I highlighted the passage you see in the transcript. There have been at least two videos depicting what looks like war crimes: apparently, Ukrainian perpetrators murdering in cold blood or torturing Russian POWs (quite reminiscent of ISIS recruitment videos, by the way). This, I think, is what Saul referred to. But you wouldn’t know of that from the Australian media (included the ABC). There are many people in the western media playing the useful idiot.
Image Credits:
[A] “View of the defendants in the dock at the International Military Tribunal trial of war criminals in Nuremberg, Bavaria, Germany”, November 1945. Author: Raymond D’Addario. Source: WikiMedia. File in the public domain.
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