Prosecuting Putin and His Cronies

International proceedings have already been initiated against Russia by Ukraine in the International Court of Justice. Other proceedings in international tribunals, including the International Criminal Court, have also been commenced as the prosecutor has opened an investigation. This post proposes that another forum, and set of international legal claims, should also be pursued: the historical origins of those claims make them uniquely appropriate for application to Putin and his cronies for their aggression against Ukraine.

At the end of World War II, after Hitler’s invasions of France, Czechoslovakia, Poland and elsewhere had been rolled back, the individuals responsible for those wars were criminally prosecuted. An international judicial tribunal tried and convicted surviving Nazi leaders for, among other things, undertaking wars of aggression against neighboring European states – branding those actions violations of international criminal law. Those convicted were subject to lengthy imprisonment or capital sentences.

The Allies, including the Soviet Union, cooperated to establish this international judicial tribunal, which was first known as the International Military Tribunal. It had the approval and support of virtually all of the world community and later became known as the Nuremberg Tribunal. Detailed context and information is available within the US Holocaust Memorial Museum’s holocaust encyclopedia series on the Tribunal. In sum, the Tribunal’s mandate was to consider and decide charges of international criminal wrongdoing – defined in the Tribunal’s Charter – against senior Nazi officials. In addition to crimes of genocide, crimes against humanity, and war crimes, the Nuremburg Charter included the crime of aggressive war. The crimes recognized by the Nuremberg Charter included participating in a conspiracy or common plan to undertake a war of aggression (as well as directly doing so).

The same rules of international law apply to Putin’s war against Ukraine and the same charges can be levied against him and his cronies, and perhaps more easily so. Evidence of this emerging war and its aggressive character is recorded each day in the world’s press, social media and government reports. That evidence is sufficient to both warrant and require prosecution of Putin, and his enablers, for the same international crimes of aggressive war.

In particular, Article VI of the Nuremberg Charter defined the crime of aggressive war (or “crimes against peace”), as it had developed in customary international law, as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” That standard was subsequently unanimously approved by the U.N. General Assembly and incorporated into the U.N. Charter at Article 1. It since has been the basis for future development of international criminal law on the subject.

The Soviet Union was not only fully supportive of the Nuremberg Charter’s provisions regarding crimes of aggressive war; it was in many respects the leading proponent of imposing international criminal sanctions for crimes against peace and for attaching grave penalties for such crimes. Aaron Trainin, a leading Soviet jurist, first articulated the concept of “a crime against peace” in the 1930s. He said that wars of aggression, in pursuit of “predatory goals,” made “a mockery of the principles and norms recognized by civilized humanity.” Adopting that logic, the USSR insisted that the Nuremberg Charter include crimes against peace among its provisions (successfully overcoming arguments that customary international law did not yet recognize such a crime). Likewise, in Tribunal sessions in July 1946, Soviet Judge Nikitchenko argued for devoting greater attention to the defendants’ crimes against peace because the Nazi invasions were one of the “clearest cases of aggression.” (available at: https://bit.ly/3psy7TH at p. 370)

Applying the standard formulated by Trainin and set out in the Charter, the Nuremberg prosecutors charged two dozen senior Nazi government officials and military officers with crimes against peace for, among other things, planning and directing the invasions of Austria, Czechoslovakia, Poland, France, Belgium, Luxembourg, the Netherlands, the Soviet Union and other European nations. In particular, two German Foreign Ministers (von Ribbentrop and von Neurath) were indicted for having planned and directed the Nazi foreign policy relating to these invasions, while several senior German military officers (Keitel, Raeder, Jodl and Doenitz) were similarly charged with respect to military preparations and actions.

The Nuremberg Tribunal convicted each of these defendants. It declared that:

“The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. 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.”

The Tribunal traced the Nazi’s militarization, claims of rightful authority over all German-speaking people, “premeditated and carefully planned” preparations for war (noting that “planning and preparation are essential to the making of war”), brutal and unprovoked military invasions of Poland, Austria, Czechoslovakia, France and elsewhere, and violations of multiple treaties or assurances. It concluded that each of the defendants had, by participation in these actions, violated international criminal prohibitions against aggressive war. In the Tribunal’s words:

“the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the [Kellogg-Briand] Pact.”

The Nuremberg Tribunal’s reasoning, and the terms of the Nuremberg Charter, are almost eerily tailored to Russia’s invasion of Ukraine. The same massive military build-up, claims to natural authority over Russian-speaking territories, careful planning and preparation and brutal, unprovoked invasions (reminiscent of the attacks on Poland and the Low Countries at the outset of World War II), in plain violation of prior treaty and other commitments characterize Putin’s assault on Ukraine. Although convicting Putin, and his enablers, would require evidentiary proof, the existing record appears clearly to warrant prosecution.

The defendants in a prosecution for crimes against peace would, obviously, begin with President Putin, but also include both Foreign Minister Lavrov (holding the same position as von Ribbentrop) and senior Russian military commanders (holding positions like Keitel and Doenitz). It would be no defense in the latter cases that Putin himself was responsible for ordering the invasion. The Nuremberg Tribunal considered exactly that defense, and rejected claims that Hitler possessed supreme authority and was ultimately responsible for all military decisions; it concluded instead that wars require participation by multiple individuals, which included the Nuremberg defendants.

There is also no basis for suggestions that Putin (or others) might enjoy head of state immunity. The international crime of aggressive war applies to all persons, regardless of governmental rank. Indeed, as Article VII of the Nuremberg Charter provided, “[t]he official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”

Another important question concerns the prosecution of senior corporate officers, in Russia and elsewhere, of companies that participated in the invasion of Ukraine. The Nuremberg Tribunal did not itself consider charges against officers of German companies involved in the Nazi war effort. Nonetheless, in one of its best-known decisions, the U.S. Military Tribunal in Nuremberg tried and convicted senior corporate officers of several German businesses, including IG Farben, Krupp, and Flick, who were found to have provided weapons or financial assistance for wars of aggression. In the Krupp Tribunal’s words, corporate officers were no less capable than governmental officials of violating international criminal law: “The laws and customs of war are binding no less upon private individuals than upon government officials and military personnel. In case they are violated there may be a difference in the degree of guilt, depending upon the circumstances, but none in the fact of guilt.” Similarly, Trainin wrote at the time that Nazi financial and industrial figures had committed “grievous violations of the principles of international intercourse and human ethics.”

That reasoning applies equally in present circumstances. Officers of weapons suppliers who participated in supplying or resupplying Russian combat troops, or producing armaments responsible for widespread civilian casualties in Ukraine, would appear to be in little different position that the German industrialists convicted in Nuremberg. The same could potentially be true of other companies and their officers, including those engaged in cyber-attacks, logistics and supply, financing and otherwise.

Preparations for prosecutions against senior Russian political and military figures need not await apprehension of suspects. Just as the Allies in World War II began planning for prosecutions during the War, so evidence-taking and work on the appropriate legal framework for an international tribunal ought also begin now. The International Criminal Court’s prosecutor, with jurisdiction over crimes against humanity and war crimes in Ukraine (but not crimes against peace), has already stated that he is investigating Russia’s actions. Similar steps can be taken with respect to crimes against peace, prosecuted before an international tribunal established by the world community. If Putin and his cronies choose, as they likely will, to be fugitives from justice, trials can be conducted in absentia. Circumstances may frustrate any apprehension or personal appearance of Putin or his cronies before an international tribunal. But they need not frustrate a judgment of the international community regarding their actions.

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All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (UN Charter, Art. 2.3)

The peaceful settlement of international disputes is a fundamental principle of international law. While it can be debated precisely when or where this common principle emerged, it has served as a guiding light since the establishment of the United Nations after the close of World War II. Indeed, ‘transnationalists‘ look to the United Nations and other international institutions to provide a framework for the domestic and international legal ordre. Inherent to the transnational legal process is the idea that peaceful acts, including conciliatory and amicable dispute resolution, are preferred over unilateral tactics, coercion, and sheer force.

Unfortunately, modern history generously provides examples where the peaceful resolution of conflicts was preceded by war, civil unrest, and the senseless loss of innocent lives. For sake of discussion, we describe below a few such conflicts as well as the dispute resolution and negotiation processes that deescalated tensions and created room for amicable relations. In doing so, we do not mean to minimise or ignore the many other conflicts that are still actively taking place, loudly or quietly, around the world today.

• In 1968, the Rann of Kutch arbitration resolved a long-running border dispute between India and Pakistan through a three-member tribunal, following the successful cease-fire mediation by the UK Prime Minister, Harold Wilson. The dispute was considered formally resolved a year later, when the parties signed more than 1,500 maps and documents showing the border as fixed by the ICJ decision. Mr. Said Mohammad Yusuf, who signed the maps and documents on behalf of Pakistan, commented at the time, ‘The process through which this dispute has been settled illustrates that given will and co-operation, all other disputes, however intractable, can be resolved peacefully’.
• In 1988, the Taba arbitration, between Egypt and Israel settled a long-running dispute concerning the Sinai peninsula. At the time, as reported by the Washington Post, Egyptian and Israeli officials noted that the five-member tribunal created a forum for them to resolve a disputed boundary issue that had been perocolating since the March 1979 peace treaty was signed. According to the Washington Post, it marked ‘the first time Israel and an Arab government have ended an argument through international law rather than warfare’.
• The Namibia-Angola settlement of 1988 (The Tripartite Agreement among the People’s Republic of Angola, the Republic of Cuba, and the Republic of South Africa), which secured the independence of Namibia from South Africa, involved a concerted effort by the UN, the US and other world powers. Importantly, the dispute was settled in spite of differences remaining and anger lingering. On the day of the signing, The New York Times commented, ‘the sharp words used today by the Foreign Ministers of Cuba, Angola and South Africa and by Mr. Shultz showed that serious differences remain…But the Angolan official also called for the restoration of normal relations with the United States, saying that since the two countries must work together to carry out today’s agreements, “such collaboration could surely be facilitated by the normalization of diplomatic relations”’.
• The Tajikistani Civil War began in 1992. UN-sponsored mediations took place intermittently, but the dispute was not resolved until 1997, through an armistice facilitated by the UN-mediated negotiation process involving multiple parties, including Russia and the US. It has since been hailed as ‘an exceptionally well-coordinated peace process – involving local civil society, the international community, and a newly established Commission for National Reconciliation’.
• The wars in Yugoslavia (1991-1995) saw the unsuccessful mediation by the EU mediator, Cyrus Vance, followed by the US mediation under the command of Richard Holbrooke. Ambassador Holbrooke’s month-long negotiation session resulted in the 1995 Dayton Accords. More than twenty-five years later, the Dayton Accords are still referred to as a ‘landmark’ agreement. A digital exhibit by the US State Department demonstrates that diplomacy was the key to uneasily concluding the brutal war and horrific ethnic violence. The Serbs referred to Ambassador Holbrooke’s style toward brokering this peace as ‘getting Holbrooked‘. Time Magazine reported at the time that ‘Holbrooke’s staff jokes that the Serbs agreed to a cease-fire just to get him to shut up for a while’.
• The 1995 Ecuador-Peru war (Cenepa War) ended with the peace treaty of Brasilia in 1998, and facilitated by the guarantors Argentina, Brazil, Chile and the US, as appointed by the 29 January 1942 Rio Protocol for Peace between Peru and Ecuador. The negotiation is said to have resolved a territorial dispute that caused two-centuries of conflict.
• The Northern Ireland conflict and the 1998 Good Friday Agreement facilitated by the mediation team consisting of George Mitchell (US), Harri Holkeri (Finland), and John de Chastelain (Canada). The mediation team won the respect of both sides and resulted in a historic compromise. As explained by the US Institute for Peace, ‘[f]or the first time, the two governments, along with parties from across the divide, agreed on a new political framework for Northern Ireland’.

Most of us who are entrenched in the field of international dispute resolution and arbitration, in particular, are also well familiar with the fact that the very idea of establishing the International Centre for Settlement of Investment Disputes (ICSID) stems from Aaron Broches’ proposal based on the numerous occasions on which the World Bank, through its president – and in particular the tenure of President Black (1949-1962), who was involved in the settlement of various disputes by good offices, mediation, and conciliation. In this regard, the Indus Waters Treaty merits a special mention: it was entered between Pakistan and India in 1960 in Karachi following the significant interventions of President Black and the World Bank itself. This is reflected in the World Bank actually serving as signatory to the treaty – although it only plays a limited and procedural role in its performance.

Meanwhile, it is simply impossible to capture here the tremendous role of the International Court of Justice, the Permanent Court of Arbitration, the negotiation and mediation, as well as the ad-hoc and institutionalised arbitration efforts in resolving and – most often, preventing inter-state disputes. At its 100-year anniversary, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) produced a video that we encourage you to view. Titled The Quiet Triumph, it demonstrates the role of arbitration in world peace and international affairs throughout the decades.

We recognise that these difficult times make the light harder to find. Despite conflict, we are interconnected in a never-before-seen way. Our world is technologically-integrated and, throughout these past few days, we have had access to raw and unfiltered updates on a real-time basis from friends, colleagues, and strangers that have heightened our consciousness and kept our moral compass properly aligned. Here at Kluwer Arbitration Blog, we have received these direct updates from our own Assistant Editors, from our readers, and from our contributors.

However, as a community, we must continue to push: through our work, through our beliefs and values, and by raising awareness and providing access to knowledge. We are equipped with special tools, including the understanding and worldview that comes from engaging with the notion of peaceful resolution of international disputes on a continuous basis.

Education and equitable access to opportunity of course plays an important role. International law education is key to unlocking a brighter future. By creating access to information, exposure to different modes of thinking, and opportunities for cultural exchange and knowledge sharing, we build a more resilient, well-informed, and creative community of international dispute resolution specialists.

These educational opportunities and synergies have not always existed and should not be taken for granted. For decades, international dispute resolution was not considered a discrete discipline. Last year, Professor Stavros Brekoulakis wrote about this evolution and explained that exploring international dispute resolution as its own discpline reflects a:

‘dynamic idea of arbitration law that transcends the often narrow boundaries of legal fields and legal traditions. Indeed, arbitration scholarship in the last twenty years has become more diverse and interdisciplinary. This is not only because non-arbitration scholars have developed an interest in arbitration, but also because arbitration scholars have started to examine arbitration against a wider context.’

It is, indeed, on this premise that our international community thrives and grows.

Similarly, if technology had not already pervaded every aspect of our lives, the pandemic has exacerbated the role it plays in educational and other capacity building exchanges. It has enhanced access to information and access to each other. This too is not something to be taken for granted and instead presents our community with an opportunity to continue to support one another in favor of a brighter future.

We therefore urge our community, during these challenging times, to draw upon our international dispute resolution toolkit. We have transnational frameworks and institutions, lessons learned from prior conflicts, disputes, mediations, and peace talks, and educational and other resources that are readily available. We also have one another as a community. We are optimistic that among these resources we will find what is needed to support efforts to negotiate in favour of, and ultimately achieve, peace. We urge that we support one another, continue to receive students and young practitioners to pursue their internships, offer them the support that is needed, and encourage access to education and knowledge – as a service to the next generation of lawyers and leaders.

At Kluwer Arbitration Blog, as expressed yesterday by Professor Roger Alford, we stand for peace and against genocide. We stand for access to education, access to knowledge and equal opportunities. We stand for friendship and collegiality, with our diverse and culturally rich community – and we celebrate this! We say NO to the war and NO to its unimaginable consequences on the lives of ordinary people.

This article was first published at Kluwer Arbitration Blog here.
Authored by Gary B. Born of Wilmer Cutler Pickering Hale and Dorr LLP firm