Lawyers Road Review

War Crimes, and their kin, are back. This time in living color, captured in the lenses of war correspondents and drones with far, far too graphic reality and broadcast to the world from Ukraine.

Reuters/ Zohra Bensemra

The world has to answer the question posed by the aggressors; what are you going to do about it?

When the rule book is thrown away by a strongman leader, does the Rule of Law ultimately prevail? What other strongmen around the world see from how we address this event will decide what sort of world we live in.

At the end of World War II, President Truman asked then sitting Justice of the Supreme Court, Robert H. Jackson to travel to Germany to bring the case of crimes against humanity against Nazi officials who were accused. The opening statement of that trial remains one of the great oratories in the advance of civilization to date.

Unable to find a clip of the opening 4 or 5 minutes which left this writer spellbound, I have recorded these opening stanzas of the statement which took most of the first day of trial, with apologies to the original author, Justice Robert H. Jackson, November 21, 1945 Nuremberg, Germany.

Definition of war crimes did not begin at Nuremberg in 1945. Ancient Judea, India and Islam all have textual basis for the norms which call for among other things the sparing of prisoners of war, as well as avoiding the deliberate targeting of civilians.

We hear echos of these norms by the time of Shakespeare written in 1599:

“Kill the poys and the luggage? ‘Tis expressly against the law of arms; ’tis as arrant as a piece of knavery…

Henry V, Act IV Scene 7

During the 19th century these norms began to be further developed such that statutory agreements between nations commonly referred to as the Geneva Conventions.

Yet apprehensions of the accused and prosecutions have been rare. Following World War I some advocated for trials of the accused Germans, in particular Kaiser Wilhelm II, to hold more than the lower echelon actors accountable for actions now long recognized as criminal.

Kaiser Wilhelm II of Germany

Article 227 of the Versailles Treaty expressly allowed for military tribunals to hear cases of “persons accused of having committed acts in violation of the laws and customs of war”. Article 228 called for Germany to hand over the accused for these trials which caused outrage among their populace.

In the end historical adherence to sovereignty and a fear that these trials would distract from what the French really wanted, namely reparations from Germany, and President Wilson really wanted, a League of Nations, meant only a few Germans were tried in courts of their own nation as a compromise to Article 228. Some convictions were entered, the most notable of a U-boat attack of a hospital ship then sinking of lifeboats full of the survivors before their ship passed beneath the waves. The sentences were light and the convicted escaped with a little help from their countrymen.

The Kaiser escaped to the Netherlands, which would not extradite him as they were not party to the treaty.

The interwar period, 1918-1939 saw some effort to address the legal shortcomings of existing measures to hold war criminals accountable. Likely the most prominent of these efforts being the Kellogg – Briand Pact of 1928 which renounced war as a means to settle disputes between nations. Hence, launching a war of aggression to acquire another nations territory by conquest would be a crime against peace, an international statutory basis upon which those leaders violating the same could be prosecuted. Germany was an original signatory to the pact.

Obviously, the presence of this agreement did not deter German aggression. Many ridiculed the document as starry eyed idealism. Yet this document an other precedent served as a foundation for prosecutions at Nuremberg and elsewhere.

The carnage of that nations conduct during World War II only strengthened the resolve of civilization to advance itself through additional agreements, statutes and developments of norms including the Charter of United Nations.

By the late 20th century the international community gathered for 5 weeks in Rome under the auspicious of the United Nations to set down specific statutes such that a body of law would exist to punish these crimes and adopt an International Criminal Court to try these offenses:

Genocide– the intentional killing of a people in whole or in part.

Crimes Against Humanity– the widespread or systematic effort to harm civilians.

War Crimes– Grave breaches of the latest Geneva Convention of 1949 such as torture or inhuman treatment, systematic sexual violence, biological or medical experiments on captives or civilians, taking of hostages; the list is long but includes the willful attacking of civilian dwellings which are undefended and not military objectives.

Crimes of Aggression– Willful planning and carrying out acts of aggression which by their scope, character and gravity constitute a manifest violation of the UN Charter. At Nuremberg this was called “Crimes against Peace.”

David Crane

Enough evidence has been adduced that as of April 2022 a former chief prosecutor for the Special Court for Sierra Leone, attorney David Crane lead a group to draft an initial indictment of Vladimir Putin and some of his high officials. Even in this short of time, the indictment runs 20 pages citing among other things crimes of aggression, targeting of medical facilities, willful murder of or indiscriminate use of force against civilians, abduction of government officials and taking of hostages and astonishingly, attacks against a nuclear facility.

This draft indictment is likely to be amended. While the conflict in Ukraine likely has no similar record keeping by the aggressors as the Nazi’s did there is some evidence that has been collected in the form of open communication between the Russian forces declaring openly they know they are committing war crimes. In addition to the Ukrainian Prosecutor General, there are boots on the ground from at least 10 countries under what is called “universal jurisdiction” to investigate international crimes, collecting what evidence is left behind by the aggressor, when available, but in real time following the crimes as well as a remarkable catalog of photos, film which is said to be self authenticating and eyewitnesses, some of whom are captured Russian soldiers.

The problem of course is going to be apprehension and prosecution of persons who commit these offenses. Following World War II the task was made simpler by the fact the Allies had completely rolled over Germany, collecting the accused along the way along with the helpful records that Germans tend to keep about their conduct. We will not necessarily apprehend the aggressors this time.

Should the indictment issue, it is doubtful, for example, Mr. Putin or the members of the Russian command structure so named will leave their country anytime soon to risk arrest. But with an Interpol arrest warrant outstanding they will never go anywhere else. I am not aware of any statute of limitations for war crimes.

The question becomes a local political problem, do the Russians rise up to hand Mr. Putin and others over to end their isolation from the world? It doesn’t matter Mr. Putin is the head of state, that immunity is no longer available under the Rome statutes.

Like the present, there have been moments in the past when the gravity of the offenses and necessity of civilization to restore order have called out our best and brightest to articulate what has happened, what is at stake, and do what we need to do to ensure a bright line is drawn as to what is not acceptable and shall be punished. We are fortunate to have people like Robert H. Jackson and David Crane among them.