Charge of war of aggression in Ukraine invasion
An unnecessary distraction
I’d like to present some rambling thoughts about the concept of war of aggression as it was conceived and in the current context. There’s more on this in my draft for the upcoming book.
I would argue that the concept of war of aggression (crimes against peace) was heavily developed during WW2 primarily by Soviet pseudo-lawyers to frame the Second World War as not a lebensraum extermination war against Jews & Slavs but as a war against Great Russian Rodina. I accept that I am being unfair to the pseudo-lawyers but I do not have much respect for Aron Trainin of the Moscow Purge Trail school of law.1 He and his mentor Andrey Vishinsky, didn’t much like bourgeois lawyers like Raphael Lemkin (of genocide fame). Lemkin was doubly damned as Jewish and Polish. Yes, I know Trainin was Jewish, not a fact he was proud of and would have maybe got him a bullet from anti-Semite Stalin if he had lived long enough. Trainin was a particularly favoured protege of Vyshinsky, a prominent legal butcher - Vyshinsky who took much offence at Lemkin’s idea of ‘limiting state sovereignty in the 1930s. Lemkin was no doubt on a kill list like other Polish lawyers (many at Katyn), especially ones who had been fiercely critical of the Soviet pseudo-lawyers and their system (Lemkin commentaries on Soviet pseudo-law) with their Polish, Jewish, internationalist gangster and Trockyvite conspiracy ideas. The concept of international gangster conspiracies, including those of the Metro-Vickers trial that Vishinsky prosecuted, is why the crime of conspiracy is so prominent in Nuremberg. Trainin, Vishinsky and the butcher judge Nikitchenko (Moscow Show Trials, Nuremberg) loved them some conspiracies, we still deal with that legacy and the pollution of the concept in international criminal law even though this concept of conspiracy started falling apart even at Nuremberg where all defendants in the international trial were charged with conspiracy, which was ridiculous in some cases if not most. The radio host Wilhelm Frick was a propagandist of genocide and war and should have hung but he didn’t plan a war of aggression with Hitler! Streicher also wasn’t in on those plans though he approved of them.
Vast conspiracies were a Soviet favourite and they couldn’t understand why Allied judges at Nuremberg didn’t completely share and appreciate their (legal) bullshit views, including on deciding guilt before the ‘trial’.
As to other legal bullshit - at Nuremberg, the Soviets ferociously pushed the idea of a war of aggression as the ‘supreme crime’ at the cost of genocide, with all present charged with a conspiracy to commit the crime. Meanwhile, genocide as a concept was framed with that word by Raphael Lemkin in 1944 in Axis Rule in Occupied Europe.2 Hersch Lauterpacht was working on the concept of crimes against humanity. Towards the summer of 1945, British and American lawyers, many of who knew Lauterpacht personally, were beginning to become familiar with the concept of genocide, which had even appeared as a neologism in the Washington Post (and New York Times) review of Axis Rule. However, genocide wasn’t mentioned in the Nuremberg indictments and crimes against humanity were pushed to third place in an unhappy word jumble for indictments.
In the London Charter which formed the basis of the Nuremberg indictments we see these crimes:
(a) Crimes against peace: namely, 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;
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to Wave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in the execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
I’m not happy with extermination disappearing here into crimes against humanity.
Soviet pseudo-lawyers actively tried to sabotage or pervert Lemkin’s work on the Genocide Convention at the United Nations in 1948 to try and make it an anti-USA and colonial convention, leaving him to ask: “Mr President, who is making international law for the world – Vishinsky or the General Assembly?”3 Soviet legal sabotage is all over the Convention, leaving it without ‘political’ groups as a target of genocide - leading to the absurd current legal position under the Convention that if Stalin wanted to kill Ukrainian kulaks as kulaks, that wasn’t genocide but if he wanted to kill kulaks as Ukrainians, then that was genocide.
The groundwork for marginalizing the Holocaust as well as genocide against Slavs which proportionally affected Poles, Belarussians and Ukrainians more than Russians as ethnic Russian land was mostly not occupied, was laid during two trials which are now forgotten - those carried out in Krasnodar in July 1943 (Soviet traitors) and Kharkiv (Germans and one traitor), now in Ukraine, in December 1943.4
Kharkiv was fought over four times. Despite the fierce fighting, the Germans managed to find the time to exterminate almost the entirety of the city’s Jewish population in phases. After the final recapture, the Soviets held a trial of captured Nazis. The Kharkiv trials were held at the city Opera House, used as an SS HQ previously. This venue was specially chosen for dramatic effect.
Throughout the transcripts of trials, which appeared in English, for propaganda effect, you can see that for the Soviets the Jews were not the victims. The words Jew or Jewish hardly appear at all! Rather the great Soviet state (a form of Rodina) was the victim. A personal crime was committed by the defendants against the anthropomorphic Soviet personified. Genocide was ‘massacres of Soviet citizens. Ghettoization was the ‘forced resettlement of Soviet citizens.
Let’s quote Trainin on the ‘real’ crime of the Nazis:
“[O]rganizing and perpetrating the most heinous crime in the history of the human race, the perfidious attack on the Soviet Union accompanied by the flagrant violation of all human standards and all the canons and regulations of international law.”5
This pollutes another legal narrative:
"The central crime in this pattern of crimes, the kingpin which holds them all together, is the plot for aggressive wars." – Justice Robert H. Jackson (Chief of Counsel for the United States at Nuremberg), July 26, 1946.6
All defendants at the international Nuremberg trial were indicted for participation in a common plan or conspiracy for the accomplishment of a crime against peace.
This fell apart for the vast majority of them - to the fury of the Soviets. I use the phrase international Nuremberg trial (International Military Tribunal - because the first round of 24 accused was tried before an international panel:
United Kingdom: Geoffrey Lawrence (president) and Norman Birkett (alternate)
United States: Francis Biddle (judge) and John Parker (alternate)
France: Henri de Vabres (judge) and Robert Falco (alternate)
Soviet Union: Iona Nikitchenko (judge) and Alexander Volchkov (alternate)
The subsequent 11 rounds at the Nuremberg courtroom were themed (lawyers, soldiers, doctors, etc) and were before US judges. The term genocide appeared more often and the crime of aggression became less prominent.
Any non-Russian Slav (maybe not Serbian) or Fin should already be laughing at the Soviet Union decrying Nazi Germany for committing the great crime of war of aggression… when it had attacked Poland with the Nazis at the beginning of the war. The Soviets at trial in particular ranted about the ‘sacred’ Kellogg-Briand Pact of 1928 which only had two articles – basically a renouncement of war as an instrument of policy. There were no enforcement provisions or sanctions in the pact. The Soviet Union was not a party to it and attacked Poland and Finland before being attacked itself.
I need to further develop my thoughts on the crime of aggression as championed at the Nuremberg trials but for now, lets go to the Rome Statute creating the International Criminal Court.
The original ratified Rome Statute establishing the International Criminal Court gave the court jurisdiction over the crime of aggression among other genocide, war crimes and crimes against humanity. Now, the USA right wasn’t happy with this as well as the rest of the statute. There’s a story to be written about how Bill Clinton’s sexual escapades sabotaged US participation as he lost all political capital - and US participation was his personal albeit flawed crusade.7 The USA didn't join the ICC and ended up threatening Holland with invasion if its eternally good soldiers or politicians ever ended up at the Hague. The Invade The Hague Act is a legislative performance that the Soviet sociopath lawyers would have approved of.
Under the original draft, there was no definition of the crime of aggression and ‘the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction.’
I’ve discussed previously that the ICC has jurisdiction over the crimes of genocide, war crimes and crimes against humanity if even a non-state party accepts jurisdiction for crimes committed on its territory against its national. This is very much true for the case of crimes by Russians on Ukrainian territory, even if the perpetrator is sitting in the Kremlin. This is different from the crime of aggression.
In 2010, 43 states, not the majority of ICC parties, got together to prepare the so-called Kampala Amendment which defined the crime of aggression and allowed the exercise of jurisdiction. You may think that this means that the crime of aggression can only be pursued by a party that has ratified those amendments, and commits the crime of aggression. Well, no. The Security Council of the United Nations generally is accepted, including previously by Russia, to have the power to create Nuremberg, international tribunals. The International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda was established this way.
The Kampala Amendment foresees that the Security Council can refer the matter of crime of aggression by a non-state party against another non-state party to the International Criminal Court. The Security Council could also do this without any reference to the Kampala Agreement. An ad hoc role would be granted to a permanent court. Many lawyers struggle with this idea but it’s simple once you think in terms of Security Council power and precedent (thank you Astrid Reisinger Coracini for clarity). Though not a party, the USA played a key role in shaping the Kampala Amendments to shield US soldiers: “No U.S. national can be prosecuted for aggression so long as the U.S. remains a non-state party.” The Hague doesn’t want a US invasion.
But of course, Russia somehow also has a Security Council seat. So veto. And Russia and Ukraine are not parties to the Kampala Amendment, Russia left the ICC (as a signatory, hadn’t ratified) over the Crimea annexation and Ukraine was never an ICC party.
Following the utterly illegal Russian invasion of Ukraine in 2022, following the smaller invasion in 2014, a legal talking point has become how Russia and Russians can be brought to justice.
One persistent talking point is charging Russians, aka Putin with the crime of aggression.
I don’t understand why.
Russians acting under Putin’s orders or through his negligence have committed multiple acts of genocide, war crimes and crimes against humanity.
The ICC does not have jurisdiction over the crime of aggression but has jurisdiction over the crime of crimes, genocide. Arguably war crimes and crimes against humanity are also graver crimes than a war of aggression.
Imagine if Putin was somehow available for trial for the ICC jurisdiction crimes. Why would we want parallel or subsequent proceedings for the crime of aggression? To prove a point? What would that point be?
That you can’t wage a war of aggression?
So where does that leave US/UK generals and politicians relating to the invasion of Iraq in 2003 in particular? I am not going to say whether the crime of aggression was committed at that time but will raise the point that is infinitely easier to argue that it was and not a fringe position - a fringe position would be to label George Bush, Jr and Tony Blair guilty of genocide or war crimes.
Putin is guilty of genocide, war crimes and crimes against humanity. We don’t need to pursue a charge of crime of aggression which will inevitably descend in whatabout and perhaps for good reason. Putin and his diplomat lawyers carefully framed their political and legal arguments based on Iraq 2003.8 There would also be ample justification to do. You can't whatabout a charge of genocide. An allegation that the USA engaged in genocide doesn’t justify your genocide.
But the definition of the crime of aggression, which the Kampala Amendment and any proper international tribunal would presumably use the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 as presented here:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
Article 5 further states:
1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
The Security Council is tasked with preserving the peace (chapter VI of the UN Charter).
If a different definition was used than the UN resolution, the legitimacy of a tribunal would further be undermined…
Any conviction would be deeply tainted by accusations of hypocrisy and those accusations would not be limited to Russian allies, un-aligned nations or even tankie/vatnik circles. I deeply despise Putin and his Russia and quite like the US and USA but I see no good reason, political or legal, to raise and use the very flawed instrument of the crime of aggression against Putin. We have better, more relevant and less flawed instruments. I’m not a fan of the tainted origin but the concept of the crime of aggression is flawed for reasons I will raise in the future.
I wonder if the Ukrainian drive to pursue charges of war of aggression is based on the Soviet legal legacy. Young Ukrainian lawyer lawyers are fantastic and energetic - I would engage in discourse as to why go down this road and why I’m an idiot Pan and wrong, crime of aggression is key to bringing Putin to justice. For now, prefer calling him and charging him as a genocidal war criminal rather than an aggressor.
Ukraine is not alone in this drive, so I admit I may be very wrong and stupid. But I do not accept the ‘umbrella’ crime from which all other crimes emanate for crimes of aggression. This is Soviet Nuremberg nonsense. A war can be waged for genocidal purposes. Therefore the crime of aggression follows the intent to commit genocide. A war of aggression also does not need mass war crimes or genocide - see arguably Iraq 2003. See the paper in the link below, which links to further papers, which should also be read.
There are sovereignty issues over pursuing Putin which aren’t as settled as the paper makes out (thank you Craig Martin for this note), even if I’m not a fan of the Westphalian concept (and neither was Lemkin).
This is a good paper I previously referenced in my draft.
PS Any implied criticism of the US and UK is based on acts committed, not a blanket attack and even more not a defense of Russia and sociopathic Putin. The UK and US are not evil regimes, unlike Putin’s Russia. Western Twitter often seems unable to understand that USA bad (Iraq, Afghanistan, drones, Guantanamo) doesn’t mean Russia good (Putin is a genocidal murderer crook regardless of what the USA does). Two opposing things can be evil. Lemkin knew this.
PPS update with one proposal. Very not impressed with the CTRl+C of the definition of crime of aggression. I wrote above that the definition in the resolution should be used but that meant also tailoring it. Under this proposal, Poland, the US and Canada could be accused by Russia of the crime of aggression. What should have been done is a determination made that the crime of aggression occurred and fits within the scope of the UN resolution defining crime of aggression. Following that determination then persons responsible should be sought. Otherwise we have a huge argument as to whether there was the crime of aggression and that’s whatabout. That however still interferes with Security Council prerogatives. I don’t see how this proposal sidesteps that issue and the proposal is thunderingly and obviously silent on this and the Russian veto. There are a lot of words about the Sierra Leone (I wrote Sri Lankan in an earlier version) tribunal - which had an unanimous Security Council decision behind it. This won’t.
You can see Nuremberg Charter (6 “(a) ' Crimes against peace: ' namely, planning, preparation, initiation or waging of a war of aggression,”) living on with the unfortunate clunky “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” - these sort of word jumbles of words meaning the same are relics of the collision of legal French and vernacular English in English law a long time ago.
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Rather more balanced views on Soviet lawyers, Francine Hirsch, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” The American Historical Review 113, no. 3 (2008). I however wouldn’t call any of the coteries of legal nihilists and judicial executioners at Soviet legal nihilism factories ‘brilliant’, including Aron Trainin. Professional at formulating their evil and flawed ideas is what I would as an adjective. These were evil men who killed each other off as readily as they did their class enemies - as Vishinsky did with his rival Evgeny Pashukanis to take over a Moscow law school. Securing tenure via a bullet to your rival is not something to be celebrated! Hirsch does note that extralegal measures and kangaroo courts were the norm in Soviet times.
I’m sorry but this is just Soviet gibberish from Trainin, the sort of nihilism that Lemkin criticized:
“Soviet law combines formal definition of crime with material definition of it. Soviet law defines crime as an act of commission (or omission) dangerous to the community, transgressing the foundations of the Soviet System or Socialist law and order (material feature) and entailing punishment by law (formal feature).” - Fundamental Principles of Soviet Criminal Law.
Lemkin despised this sort of nihilistic utilitarian instrumentalisation of law, he attacked the same Nazi perversion of law in Axis Rule in Occupied Europe, which was the foundational text for the study and development of the crime of genocide but mostly dealt with the use of law as repression, something the Soviets did to an equal degree.
Nikitchenko approved of trials. Show trials:
"We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments.... The whole idea is to secure quick and just punishment for the crime."
Further refer to Telford Taylor, “The Nuremberg Trials,” Columbia Law Review 55, no. 4 (1955): pp. 499 citing George A. Finch, “International Conference on Military Trials, London, 1945. (Department of State Publication 3080.) Washington: Government Printing Office, 1949. Pp. XX, 441.
Nikitchenko later dissented against the acquittal of Hans Fritzsche: “Propaganda was invariably a factor in preparing and conducting acts of aggression”. As it was and is in Ukraine.
Oh and ‘brilliant’ Soviet lawyers in the interwar period were keen on dealing with ‘international criminals’ like Al Capone and not war-mongerers.
Axis Rule In Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington D.C.: Carnegie Endowment for International Peace, 1944)
John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (Basingstoke: Palgrave Macmillan, 2015), 105.
Greg Dawson, Judgment before Nuremberg: The Holocaust in the Ukraine and the First Nazi War Crimes Trial (New York: Pegasus Books, 2012), appropriately titled. Dawson calls it the treatment of the Holocaust ‘Alice-in-Wonderland determined white-brushing of Jews’.
Kirsten Sellars, 'Crimes against Peace' and International Law (Cambridge: Cambridge University Press, 2015), 51
Nazi Conspiracy and Aggression (Washington: United States Government Print. Off., 1948)
Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (United States: The New Press, 2013), chapter “Rome 1998: The Politics”.
As well as Kosovo and Libya interventions which I think were more justifiable than the Iraq war and occupation.