It would give the court an undisputable legal basis, and not without some irony: the crime of aggression is defined in both Ukrainian and Russian law, as a holdover from the Soviet Union where it was introduced after… Operation Barbarossa!
To what end?
So far we’ve taken for granted that Russia’s crime of aggression should not go unpunished. Yet that idea has plenty of skeptics among both policymakers and the public. With all the uncertainty and risk involved, would it really be worth it? Is it not ultimately a quixotic undertaking? One of the substantive arguments against this is that if the goal is a peace agreement, it would be inconsistent to treat our potential negotiating partner as a criminal. The counterargument - that noble idea that there can be “no peace without justice” - doesn’t seem to carry much weight. Maybe the way out of this dilemma lies in the fact that an agreement not to pursue prosecution can be an instrument used for peace talks.
Other objections have to do with what you might call the “pedigree” of the other major powers. It won’t have eluded the United States that some of the charges against Russia could also apply to its 2003 invasion of Iraq. The powers like the United States, but also France, the United Kingdom and others that believe they have a duty to become militarily involved in some of the world’s hotspots might fear that a “Nuremberg 2.0” could provide a precedent to be used against it by a coalition of hostile powers. The United States is not a member of the ICC and France never ratified the Kampala agreements. Furthermore, it seems clear that setting up a special tribunal for Ukraine would only fuel accusations of a double standard, a common refrain in the Global South: why all this severity against Russia when America has been treated with so much leniency?
We won’t debate the merits of these objections here, but we will offer at least two ends that, from a long-term political and strategic perspective, might justify seeking an international conviction for Russia’s crime of aggression against Ukraine:
First, one of the issues of our time is what political scientist Ghassan Salamé calls “deregulation of force”. It is in the interests of Western powers, and all nations, to try to reverse the current trend and restore credibility to the international prohibition on the use of force, a founding principle of the United Nations Charter. Establishing a tribunal for the crime of aggression in Ukraine, in whatever form that tribunal may take, could contribute toward that goal. And precisely because it entails risk for countries like France and the United Kingdom, it would signal their resolve to end the practice of unilateral unlawful use of force.
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