“While allies should provide Ukraine with the resources needed to push as far toward the Russian border as possible, they should also start to think about post-war justice. Resolving the war will involve more than just agreeing to where lines are drawn on a map.”
In the spring of 2024, both Ukrainian and Russian forces will push to break their current strategic deadlock. In war, gains and losses of momentum and morale can quickly turn small victories into routs, but in the type of attritional warfare happening in Ukraine, battles are mostly won by the side with superior production and logistics of munitions. Russia has turned its economy into a war machine, and Ukraine’s allies need to match Russian arms production, while continuing to put pressure on technology choke points in Russia’s production chain through sanctions and embargoes.
While allies should provide Ukraine with the resources needed to push as far toward the Russian border as possible, they should also start to think about post-war justice. Resolving the war will involve more than just agreeing to where lines are drawn on a map. The desire for revenge must be suppressed, but justice and reparations are needed for the victims. How one war ends can define how the next one starts.
During the Second World War, the Allies, understanding the need for justice, convened a War Crimes Commission two years before the war ended. It decided justice would be delivered by a series of trials in the German city of Nuremberg, under new laws. Valeriia Melnyk, Head of the Division for International Cooperation within the Ukrainian Prosecutor General’s Office, told me in a recent interview that the laws that emerged from Nuremberg could provide the model for Ukraine.
British Prime Minister Winston Churchill favored the execution of captured Nazi leaders to avoid the tangles of legal procedure. However, the United States Secretary of War, Henry L. Stimson, objected. He looked to the 1916 Easter Rising in Ireland, when the British shot the rebel leaders without trial. They became martyrs, and popular support for Irish independence increased. Secretary Stimson was concerned the execution of Nazi leaders without trial would similarly create martyrs and revive their cause. The case for a trial won out, and between November, 1945 and October, 1946, in Courtroom 600 of the Nuremberg Palace of Justice, states ruled by different forms of government and constitutional systems joined together to prosecute a defeated enemy in court and hold individuals personally accountable under international law.
After determining which legal system (modified common law) would prevail, the next challenge was deciding what charges to bring against the defendants. Four were drawn up: conspiracy, crimes against peace (crimes of aggression), war crimes, and crimes against humanity. The first count made all those who drew up the plans that resulted in crimes identified in the other counts as responsible as those who executed the plans. The second built on concepts from Just War Theory to propose a series of criteria that needed to be met to determine if a war is morally justifiable. For the first time, aggression was criminalized as a cause of war. This became the focus on the trial, with the judgment concluding:
“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 third count focused on violations of the existing laws of armed conflict. The last count used a new term, “crimes against humanity,” crimes committed against the civilian populations of occupied countries. The term was popularized by Jewish lawyer Hersch Lauterpacht, who was born in 1897 in the town of Zhovkva, then in the Austro-Hungarian empire but now in Ukraine. Initially studying in Lviv, he eventually moved to the United Kingdom, becoming a member of the British War Crimes Executive and part of the British prosecutorial team in Nuremberg.
Lauterpacht called for individual criminal responsibility, prevailing over claims that only states could incur liability under international law. In 1945, he wrote An International Bill of the Rights of Man, a forerunner to the Universal Declaration of Human Rights. Lauterpacht wanted to ensure those who infringed on the human rights of so many in such grotesque ways were held accountable. One of those convicted was Hans Frank, the Nazis’ Governor General of Poland, whose victims included Lauterpacht’s father, mother, brother, sister, and other family members who had remained around Lviv.
Another Jewish lawyer, Raphael Lemkin, part of the American prosecutorial team at Nuremberg, tried to add another charge: genocide. Lemkin coined the term after studying the atrocities committed by the Ottoman Empire against Armenians in the First World War, as well as those committed by the Nazis against the Jews, Poles, and other Untermenschen. It describes acts committed with intent to destroy a national, ethnical, racial, or religious group.
Philippe Sands notes that Lauterpacht feared genocide would undermine the protection of individuals. He worried the charge would reinforce natural instincts of tribalism, pitting one group against another, creating an “us” and a “them.” Instead, Lauterpacht wanted to reinforce the protection of each individual, irrespective of which group he belonged to.
The omission of genocide led Lemkin to feel the trial fell short of full justice. He believed the focus on individuals was naive and ignored the reality of conflict. Individuals were targeted because they were members of a particular group and not because of their individual qualities. For Lemkin, the law needed to reflect the true motives of those committing atrocities. Lemkin dedicated his life to pushing for an international convention on genocide, which he felt would help prevent the rise of “future Hitlers.”
In its first session in 1946, the United Nations (UN) unanimously adopted a resolution affirming the principles of international law acknowledged in Nuremberg. In 1948, it approved the Genocide Convention, many of its clauses based on Lemkin’s proposals. In 1954, the UN drafted a Code of Offenses Against the Peace and Security of Mankind, under which the Nuremberg Principles could be universally applied. The trials laid the foundations for future international human rights laws. These measures led to the treaty that finally established the International Criminal Court (ICC) in 1998, to investigate crimes against humanity, war crimes, the crime of aggression, and genocide. The ICC can prosecute these crimes in situations where states are “unable” or “unwilling” to do so themselves.
Without Nuremberg, there would have been no framework for the prosecution of those responsible for atrocities in the former Yugoslavia, Rwanda, and Sierra Leone. Today, Ukrainian prosecutors want to charge Russian leaders with both crimes of aggression and genocide. When Ukrainian President Volodymyr Zelenskyy visited the ICC in The Hague in May of 2023, he cited Nuremberg to emphasize his call for a special tribunal to judge the aggression committed against his country.
Melnyk told me: “Justice will never be complete without a verdict for Russia’s top leadership…The model of the tribunal that Ukraine considers to be optimal is the one based on the international treaty—following the example of Nuremberg.” Twenty-four states have opened investigations or are collecting evidence of Russia’s crimes. Melnyk hopes for the establishment of a special international tribunal to ensure accountability. The Ukrainians are cooperating closely with the ICC, and they hope that the arrest warrants for Russian President Vladimir Putin and Children’s Rights Commissioner Maria Lvova-Belova are the first of many.
At Nuremberg, the Soviet Union was in favor of prosecuting the capitalists who had financed Hitler’s war. Confiscating Russian assets linked to President Putin’s war machine and using them to fund Ukraine’s recovery and compensate the war’s victims is another Ukrainian priority. In the Krupp Trial of 1947-1948, 12 directors of the Krupp Group were charged with war crimes and enslavement. Eleven were convicted. The fact that business as well as government officials can be found guilty of such offenses is a sign of what could be done with those currently enabling President Putin’s war machine and could open up the possibility of repurposing the billions of dollars in Russian sovereign assets and oligarchs’ fortunes in frozen accounts across the world, many in Western states.
The Prosecutor General’s Office is also working to gather evidence to support the return of the children taken by the Russian military and handed over to Russian families, as well as to support the release of those held in conflict-related civilian detention. Thousands of civilians in occupied areas have been arrested under false accusations, with many tortured. For both the return of the children and of civilian detainees, current international laws are insufficient. Cooperation is required to develop laws to support these efforts.
Just as the Allies drafted new laws to cover the crimes of the Nazi regime, Ukrainian prosecutors have brought new charges against the Russian regime. For the first time, prosecutors are investigating war crimes against the environment. There are over 270 such cases, 15 of ecocide. Although the existing international legal framework provides for the protection of the environment in war, in practice, ecological damage is seen as collateral damage. These charges include attacks against infrastructure targets that have caused environmental damage, such as the shelling of Kharkiv’s neutron source facility. The Ukrainians are also cooperating with the ICC investigation of the destruction of the Kakhovka Dam, which could become the first case of an environmental war crime prosecuted by an international tribunal.
Russia’s cyberattacks have also provided a reason to adapt existing laws governing cyberwarfare. Ukraine is investigating cyberattacks on energy infrastructure, state institutions, and media outlets as war crimes. When cyberattacks are a precursor to kinetic attacks, those conducting them should be held liable for the following kinetic damage.
As well as new laws, the Ukrainians are taking advantage of new technologies. They are using big data analysis software to map the Russian chain of command in Ukraine, the shelling of critical infrastructure, and places of detention of both civilians and prisoners of war. This includes software that allows prosecutors to make transcripts of video and audio materials with voice recognition. The investigators and prosecutors use drones to document the results of the shelling and examine scenes of Russian atrocities in occupied territories.
New technologies allow the Ukrainians and their allies to share and cross-reference data as never before. Case management systems integrate programs across different agencies and systems such as the Core International Crimes Evidence Database, which allows for evidence to be shared easily between the members of the Joint Investigation Team, consisting of Ukraine, six other European states, the ICC, Europol, and the United States. A Ukrainian government website allows victims to submit evidence remotely.
Courtroom 600 was used until 2020. When I visited last year, it was almost unrecognizable from the footage of 1945. The courtroom was refurbished and smaller: A wall that had been removed before the trial was re-erected. The judges’ bench was turned 90 degrees and now stands where the witness box was during the trials. We moved from the exhibition space in the adjoining rooms into the courtroom to see a large screen deploy down from the ceiling. The screen superimposed footage of the trial in the courtroom, and it all made sense.
During the first Nuremberg trial, a different screening brought the crimes the defendants were charged with to life. On November 29, 1945, American prosecutor Thomas J. Dodd had a screen drawn down behind the witness stand. The bright lights were dimmed, and the courtroom saw film compiled by Allied photographers accompanying the troops who liberated the concentration camps. All took place in complete silence save the whirring of the projector and the occasional gasp from the gallery. The lights came on. Nobody spoke. The judges stood up in silence and went out, adjourning the session.
After they were hanged, several sources reported that their bodies were taken for cremation at Dachau concentration camp, where the overworked ovens were relit once more. Other sources claim they were cremated at the nearby Ostfriedhof cemetery in Munich where victims of Birkenau, Auschwitz, and Dachau camps had been cremated along with those who opposed the regime who had died in Munich’s Stadelheim Prison. Either one would have been an appropriate location for the architects of the vast machinery of murder to become the final act of their own Final Solution.
The Allies had the moral high ground in 1945. The United States was key in shaping the laws and institutions Lauterpacht hoped would ensure human rights were universally upheld. Over the following years, however, it became clear that justice would be unevenly applied. The United States is not one of the 124 signatories of the Rome Statute that founded the ICC. After the invasion of Ukraine, the Irish writer Fintan O’Toole observed that confronting President Putin would require sacrifices from Western democracies. For the United States, it meant giving up “the comfort of its exceptionalism on the question of war crimes” by joining the ICC. It must “accept without reservation that the standards it applies to [Putin] also apply to itself.” This is a sacrifice successive American presidents have not been prepared to make.
In 2020, the ICC opened an investigation in Afghanistan, which could include alleged crimes committed by the Taliban, Afghan security forces, and United States military and Central Intelligence Agency personnel. After previously telling the UN the ICC had “no jurisdiction, no legitimacy, and no authority” President Donald Trump issued an executive order authorizing asset freezes and family entry bans on ICC officials. However, since then President Joe Biden has made small steps toward the sacrifice O’Toole suggests is necessary. President Biden’s recent order directing American agencies to share evidence of Russian war crimes with the ICC was a small but significant change. The United States should continue its tentative steps in this direction.
A resolution to the war seems far off. The idea of President Putin being tried in person for his crimes of aggression sounds far-fetched; however, as Melnyk points out, in the 1990s hardly anyone believed top perpetrators of atrocities in the former Yugoslavia and Rwanda would ever find themselves behind bars. Lawyers involved with those tribunals are working with the Ukrainians. Whatever model of tribunal is chosen, the Ukrainians believe it must be truly international to avoid accusations of bias, like Nuremberg. All the nations that invested in the post-Nuremberg institutions should support them in their aim. Ill-considered lines drawn on maps can create ethnic and religious fault-lines that guarantee future violence but so can feelings of injustice.
The same nations should realize that if Hitler’s armies had not been defeated there would have been no Nuremburg. Without the right support for Ukraine on the battlefield, there will be no opportunity to see justice being served. According to UN data, as of September, 2023 there have been at least 10,000 civilian deaths, including over 560 children, due to the Russian invasion. The actual number is likely to be much higher. The dead cannot demand justice. It is the duty of the living to demand it on their behalf.
Andy Owen is a former soldier who writes about the philosophy and ethics of war and geopolitics. He has been published in TIME, Aeon, The Spectator, The New European, and The Critic. His fictionalized memoir, telling the untold story of the intelligence war in Afghanistan, is due to be published in April of 2024.
