For the past 75 years, the international order has helped stabilize the world. For generations, the international order has fostered peace and prosperity on a scale that humanity had never previously experienced, creating unprecedented opportunities for economic growth and freeing nations and their citizens across the world from the constant fear that another great-power war might devastate their society and their lives.[1]

Today the world is facing an “epochal tectonic shift”.[2] The growing ambitions of authoritarian powers, the blurring of the line between war and peace, and the emergence of disruptive technologies are all increasing the risk of a major war and its attendant atrocities.  Russia’s war of aggression against Ukraine in Europe has put an end to an era. Russia’s invasion of Ukraine has given us a glimpse of what the return of industrial-scale warfare would mean. If an emboldened China invades Taiwan, the global cost could well be far higher.[3]

Russian President Vladimir Putin’s decision to invade Ukraine in February 2022 – to forcefully take over his neighbouring sovereign country completely – is a war of choice, an illegal choice, and one he continues to choose to pursue.[4]

With every inch of Ukrainian soil that is reclaimed from Russian occupation, fresh evidence emerges of the appalling war crimes the Russians have inflicted on Ukraine’s civilian population. In the earliest days of the conflict back in March, when Russian troops were forced into a humiliating retreat from their attempts to capture Kyiv, grim details emerged of atrocities in Bucha on the outskirts of the Ukrainian capital. They included massacres of unarmed civilians, torture, looting and rape.

– The Telegraph[5]

Russia’s authoritarian leadership started the war insisting that some or all of Ukraine be absorbed into Russia, with the remainder becoming a vassal. Ukraine is fighting a war for national survival and the security and freedom of its citizens. The citizens of Ukraine “are literally fighting for their lives and for the survival of their nation against a Russian dictator who intends to erase Ukraine from the map as an independent state”.[6]

Putin’s “war in Ukraine is already the worst conflict in Europe since 1945, and it continues to intensify. In pursuit of this illegal war of aggression, Russia has been accused of committing war crimes and atrocities throughout Ukraine, with rape, murder, torture, mass graves, and terror all being used against the civilian population.[7] As winter descends, Russia has escalated its barbaric campaign to force a surrender by destroying Ukraine’s” critical civilian “power infrastructure”.[8] Russian attacks in the past two months have “focused on eliminating infrastructure crucial to the means of civilian survival such as heat, water, power and medical facilities” – a campaign allegedly designed to end Ukrainian resistance by making cities uninhabitable.[9]

Russia has launched more than 1,000 missiles and Iranian-made attack drones since the wave of strikes on power infrastructure began on 10 October. International leaders – including French President Emmanuel Macron – have said the strikes amount to a war crime.

– BBC News[10]

The Office of the Prosecutor of the International Criminal Court (ICC) has stated that it is investigating possible war crimes and atrocities in Ukraine.[11]

The International Criminal Court is an independent, permanent court of last resort with jurisdiction to investigate and prosecute the most serious criminal offences of international concern, namely genocide, crimes against humanity, crimes of aggression, and war crimes. The Court is an independent and impartial judicial institution.^[12] The Rule of Law, interpreted and applied by impartial judges of the ICC, is the guarantee of everyone’s rights and freedoms and that decisions are based on the facts, law, and merits of each case rather than what is popular or politically expedient.

The International Criminal Court represents the aspiration to live in a world where perpetrators of the gravest war crimes and atrocities are not immune from prosecution.[13] It is a deterrent and an important judicial institution in the prosecution and prevention of atrocity and war crimes, lifting – although not removing – the shroud of impunity to “influence the way nations, and especially their leaders, consider their choices”.[14]

The term ‘atrocity crimes’ refers to [four] legally defined international crimes: genocide, crimes against humanity, and war crimes [and – since 2018 – crimes of aggression]. … Atrocity crimes are considered to be the most serious crimes against humankind.

– United Nations: Framework of Analysis for Atrocity Crimes – A tool for prevention^[15]

However, in the world we live in, atrocity crimes and international war crimes will never be prevented completely, “but, as in domestic societies, we must work to deter crime where we can. And the International Criminal Court” is a vital institution and voice for the rule of law, justice, and “victims of atrocity crimes, conveying the simple message that humanity will no longer tolerate impunity for those who violate the fundamental norms of human conduct”.[16]

Not surprisingly, authoritarian leaders and governments have formed loose but effective alliances to block criticism and defend embattled allies on the world stage,[17] and have long attacked the integrity of the International Criminal Court (“ICC”), seeking to weaken the capacity of the international system of justice to constrain the behaviour of authoritarian powers.[18]  Such attacks on the ICC and global rule of law leave countries, leaders and policymakers across the globe with a choice: accept the inevitability of a world in decline, or fight to restore and strengthen the world’s legal guardrails.[19]

The rule of law is a fragile societal construct. Principled leadership is required at this time.

I call upon all who believe in internationally recognized norms of human conduct to support the International Criminal Court and the system of international justice for which it stands. … I have carried the torch of working toward a more humane world under the rule of law my whole life. It’s high time to pass it on to the International Criminal Court—and the people who believe in what it stands for.

– Benjamin B. Ferencz, ‘Law, not war: A Nuremberg trial prosecutor on why we need the ICC’[20]

Introduction

There are lots of complicated issues in international relations and law, but the following is stark from the evidence gathered to date:

• Russia has tried to illegally annex all or part of a sovereign country, and its military ordered into Ukraine appears to have persistently committed atrocities and war crimes.
• Ukrainians have understandably resisted. They have every right to defend their sovereignty and bodily integrity, and every reason.[21]
• Mr. Putin’s bald assertion that Ukraine somehow “provoked” Russia’s invasion is a fiction.[22]
• Russia now poses an immediate and persistent threat to international law, security and stability. This is about the fundamental principles of the UN Charter, which Russia is a party to, in particular the respect for sovereignty, territorial integrity, and the prohibition against acquiring territory through war, war crimes, terror, and atrocities.[23]
• This authoritarian attack on Ukraine and associated atrocities and war crimes undermines international law, the global rule of law, and international peace, security and political stability.

[In October 2022], the United Nations’ Independent International Commission of Inquiry on Ukraine issued a report that found that Russian forces have conducted widespread war crimes, including strikes against civilian infrastructure, attacking humanitarian facilities, and ‘patterns of summary executions, unlawful confinement, torture, ill-treatment, rape and other sexual violence committed in areas occupied by Russian armed forces’.

– Washington Post[24]

A country’s military is a professional force designed to employ the measured and disciplined application of force on behalf of a nation. Unfortunately, history has repeatedly encountered these dark times when politics – illegal use of force, abuse of power, war crimes and so on – subdues the rule of law, and in worst-case scenarios the international system crumbled.[25]

The International Criminal Court is a deterrent and an important judicial institution in the prosecution and prevention of atrocity and war crimes.[26] It embodies our collective commitment to fight impunity for international crimes,^[27] generating facts, holding individuals and leaders accountable, and deterring future horrific conduct.^[28]

There is no immunity for international crimes, and there is no statute of limitations for war crimes. The Chief Prosecutor for the International Criminal Court is currently investigating offences on the ground in Ukraine. If evidence is found to support the prosecution of war crimes in Ukraine, no one involved – from frontline soldier to government and military leader is immune from prosecution.  Neither a “superior orders defence” (i.e. a soldier’s “I was only following orders”) or “official position defence” (i.e. “I am the” president, prime minister, general, admiral, etc.) is grounds for immunity. In theory, the Russian president’s position would not allow him to escape war crimes with impunity.[29]

The scale of Russia’s crimes [… in the Ukraine …] remains difficult to comprehend. Entire cities have been reduced to rubble. Thousands have been executed. Millions have been forcibly deported to Russia. The core infrastructure of the Ukrainian state has been methodically targeted for destruction, along with the country’s cultural heritage. In areas under Russian occupation, all national symbols and traces of Ukrainian identity are being eradicated. The entire world is witnessing a textbook example of genocide unfolding in real time on smartphone screens and social media threads. 

– Atlantic Council^[30]

The rule of law and stable nations across the world benefit from promoting and complying with international law and the institutions that hold and enforce that law. 

Perhaps more than ever we need leaders of conviction and courage to step out of their comfort zone to make bold statements and set bold policy and objectives, and model a bold way forward – protecting the International Criminal Court and rule of law, and inspiring a shared vision for our institutions and system of justice. Showing the flag, if you will, for civilization and law, reassuring and building trust that there are still boundaries that will be defended.[31]

[International Criminal Court] ICC launches war crimes investigation over Russian invasion of Ukraine.

– The Guardian[32]

Once lost, freedom, justice and a peaceful democratic society – which favours the rule of law, equal rights, freedom of speech, fair trials, and toleration of minority views – is difficult to reinstate.[33] As noted by former U.S. President Ronald Reagan, “perhaps you and I have lived too long with this miracle to properly be appreciative. Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. And those in world history who have known freedom and then lost it have never known it again”.[34] A Nobel Peace Prize Laureate 2022 – one of three co-laureates receiving the prize for “outstanding effort to document war crimes, human right abuses and the abuse of power” – had this to say on December 10, 2022:[35]

“Survivors of the World War II are no longer around. And the new generations began to take rights and freedoms for granted. Even in developed democracies, forces questioning the principles of the Universal Declaration of Human Rights are on the rise. But human rights cannot be upheld once and for all. The values of modern civilization must be protected.”

The current state of society demands a better understanding of freedom and the rule of law, atrocity and war crimes, the International Criminal Court, and the legal solutions available.[36] The complex political, social and economic transformation of modern society has brought the world challenges “which require a collective response which must be guided by the rule of law, as it is the foundation of friendly and equitable relations between states and the base of fair societies”.[37]

The rule of law is “fundamental to international peace and security and political stability”.[38]

Strengthening the rule of law involves respect for the norms of international law, including the use of military force, and recognition of the primary responsibility of nations to protect their populations from genocide, crimes against humanity, ethnic cleansing and war crimes.[39]

Ukrainian President Volodymyr Zelensky was named Time magazine’s Person of the Year on Wednesday [November 7, 2022] …..  Zelensky has led Ukraine as it has worked to hold off a full-scale Russian invasion of the country since late February, becoming a leader on the world stage. He has overseen a series of victories in the war that has largely halted Russia from advancing and allowed Ukraine to retake captured territory … rallied by Zelensky’s calls to fight to protect their country.

– ‘Zelensky named Time magazine Person of the Year’[40]

World leaders – from the U.S. and Canada to the EU and UK – have accused President Putin and Russia of carrying out war crimes in Ukraine.[41] The U.S. State Department’s Ambassador-at-Large for Global Criminal Justice “accused Russia of ‘systemic’ war crimes which were being conducted with the knowledge and backing of the highest levels of the Kremlin”.[42]

On October 13, 2022, the Parliamentary Assembly of the Council of Europe passed a motion declaring “the current Russian regime as a terrorist one”. On November 21, 2022, the NATO Parliamentary Committee specifically recognized Russia as “a terrorist state”.[43]  The President of the NATO Parliamentary Assembly stated:[44]

“Now, no doubt is possible, Russian leaders are acting like real terrorists, showing unprecedented barbarism by attacking civilians and civilian infrastructure. We must act, and they must be judged as terrorists in front of international tribunals. As NATO parliamentarians, we must support Ukraine, we must support its people. People who are everyday showing courage and resilience in the service of our values of Freedom, democracy and sovereignty.”

On November 23, 2022, the EU Parliament voted to declare Russia a “state sponsor of terrorism” over its invasion of Ukraine. The goal – prompted by evidence of war crimes, atrocities and acts of terror by Russian forces against the civilian population and targets such as the energy infrastructure, hospitals, schools and shelters – is that the designation lead to legal consequences for Russian leaders in that they face a war crimes trial.[45]

The toxic “terrorist” label, which has no agreed-upon definition in international law, serves nevertheless as a symbolic rebuke to any existing claims Russia makes to being a respected and law-abiding member of the international community.

But being so branded – both as a purveyor of an unprovoked war of aggression and war crimes and a state sponsor of terrorism – carries real world practical implications as well.[46]

Evil is a word that is both undervalued and overused. But no other word comes to mind as Russia bombs schools, theatres, hospitals, playgrounds, train stations and homes. The rape and pillaging are Middle Ages. The mass graves leave no modern doubt. Russia is a terrorist state committing atrocities. Call it what it is.

– Toronto Star[47]

First, in light of the evidence of Russia and its most senior leadership’s involvement in an unprovoked war of aggression, atrocities, war crimes and escalating acts of terror, the democratic world must (a) ensure Russia’s full economic and political isolation at this immediate point in time, (b) pursue policy that supports the removal of Russia from the U.N. Security Council, (c) seek accountability for war crimes and reparations, and most importantly at this point in time, (d) provide support for Ukraine’s legitimate defensive efforts to drive the Russian military out of their country (and/or maximize Kyiv’s leverage when the time comes for a negotiated settlement[48] to Russia’s unprovoked war of aggression).

Currently, Russia is deliberately targeting civilians and civilian infrastructure as its military leadership and forces appear to be unable to adjust to Ukrainian resistance and its subsequent military setbacks in respect to its invasion. Vladimir Putin’s regime – if not crumbling as it threatens “nuclear escalation” to compensate for its now apparent conventional military weakness – is certainly scrambling and substantially weaker than it projected itself on the world stage just one year ago[49]:[50]

“Contrary to what has been propagated and what Western military analysts had expected, the Russian army has underperformed in Ukraine. To the surprise of many, the Russian military has shown not to be the modernized military machine it threatened to be. Instead, we have observed an army organization struggling with Russia’s structural problems of the past. These are, among others, issues related to command and control, logistics, and the application of high-tech weaponry and equipment on a tactical level. As a result, the Russian armed forces expose their traditional combat behaviour, with a high tolerance for losses and tacit permission to apply brute force. The ruins of Mariupol, the mass graves of Bucha, and the reported looting and rape committed by Russian soldiers – and their denial – are sad but not unexpected testimonies of this combat tradition.”

With the Ukraine war most certainly not going according to President Putin’s plan — or indeed, according to any of the revisions of the plan that the Russian leadership has had to make during almost eleven months of hard fighting – a resilient Ukraine (armed with European and American advanced weapons and intelligence) is firmly set on defeating Russia’s invasion.[51]  The Ukrainians “have survived this far through a combination of excellent strategy, the resilience of its people and their leaders, an infusion of highly lethal Western weapons, the courage of the men and women on the front lines, and a mind-boggling amount of Russian incompetence” and short-sighted brutality if not outright atrocities and war crimes.[52]

Although possibly premature, as the Russian army has begun to suffer one military defeat after another on the ground and is forced to withdraw from more and more Ukrainian territory, the contours of a successful Ukrainian defence of its nation and citizens “have become distinguishable through the proverbial fog of war, but the scope, timing, and resonance of a Russian defeat remain obscured”.[53]

Russia, and other nondemocratic regimes have become increasingly bold in acting as if agreed-upon international human rights standards no longer exist, or at least do not apply to them.

– Christopher Sabatini[54]

This leads to the second real world practical implication.  With respect to diplomacy, leaders and policymakers would be misguided in their actions and policy if they do not at least recognize that – while critical to “hold Russia accountable for the human and economic costs of its human rights violations and international interventions” – they cannot treat Russia “solely as a rogue state or isolating it” infinitum as this will only “lead to further deterioration in a rapidly evolving and disintegrating multipolar global order. Russia’s role among the Permanent Five (P-5) in the United Nations Security Council (UNSC), as well as its nuclear arsenal and arms supply to other nations, make it imperative that” countries and leaders across the world also “strive to find pathways for constructive engagement that could also be extended to a post-Putin Russia”:[55]

“To build a more sustainable and inclusive international order, and foster a democratic and rule of law-abiding institutional culture within Russia, measures to ensure the accountability of the Russian state will need to be complemented by a constructive engagement with the Russian state, civil society, and its people.”

Authoritarian states like Russia, built solely on fear and self-interest and a thinly veiled democratic fiction, are brittle things: and in Russia the cracks are showing, to the point that Putin’s regime may crumble unexpectedly and thoroughly[56] as the Ukrainian military resists the Russian invasion, building battlefield momentum as that nation and its people defend their country.[57] Armed with American and European advanced weapons and reliable intelligence, Ukrainian forces have recaptured thousands of square miles of their sovereign territory in months from a reeling Russian military. Russia’s military failures in Ukraine are rapidly mounting — first in Kyiv, then Donbas, and then the subsequent fall of the regional capital of Kherson. Those are three major setbacks in less than eleven months, involving more than 100,000 casualties, almost 8,000 confirmed losses of armored vehicles and tanks, thousands of armoured personnel carriers, artillery pieces, hundreds of aircraft, numerous naval vessels, and an estimated loss of 50 percent of formerly Russian-occupied territory.[58]  By most measures Russia’s war of choice is failing, but at this point in time it still controls all the Ukrainian territory seized in 2014, as well as the coastal corridor from Crimea to the Russian border.[59]

However, as the Russian army has begun to suffer one military defeat after another on the ground, and withdraws from more and more Ukrainian territories, the prospect of Russian defeat is taken on some real meaning as the World begins to see Putin’s military struggling and substantially weaker than it was perceived to be at the outset of the its unprovoked war with Ukraine.[60]

Mr Putin’s war is turning Russia into a failed state, with uncontrolled borders, private military formations, a fleeing population, moral decay and the possibility of civil conflict. And though confidence among Western leaders in Ukraine’s ability to withstand Mr Putin’s terror has gone up, there is growing concern about Russia’s own ability to survive the war. It could become ungovernable and descend into chaos.

– ‘Russia risks becoming ungovernable and descending into chaos’, The Economist[61]

In this environment of a weakened Russian state and failure on the Ukrainian battlefield, and as details continue to emerge of war crimes committed by Russian forces against civilians, Russia has implemented a strategy of targeting and destroying Ukraine’s civilian infrastructure. Putin’s extreme and illegal measures have included the threat of using nuclear weapons, “hoping the threat will make” countries providing Ukraine humanitarian, financial, and military aid “think twice about how far Kyiv should be enabled to advance” in the defence of their own country.[62]

It may go without saying that sophisticated policy analysts are in agreement that the Russian war is currently not going to plan, and if Russia were to lose all its battlefield gains or even lose the war (some version of defeat is increasingly likely for Russia), the question is how that would look and where it might lead. If this occurs, factional strife and internal chaos within and across Russia seem inevitable, most likely exchanging one “known” autocracy for another.[63] While there does not appear to be a clear successor to Mr. Putin, it must not be forgotten that while Putin exacerbated and exploited the worst excesses of the Soviet Union (as a ‘successor state’), he only made worse what was already extant. Removing one person is unlikely to change the entire autocratic system: [64]

“In the bigger picture, Russia has again entered a period of secular decline, during which it will have limited access to Western investment, technology or consumer goods. Russia’s empires have collapsed before, in 1917-18 and again when the Soviet Union imploded in 1989-91. In both cases, the collapse took a while to get going, and then proved quite complete. Of course, historically Russia has also been able to reassert control over time, and during the 1990s, by getting a lot of help from Western companies.

This time, too, we should expect a long struggle for power within Russia, with serious existential risks for the world, including who ends up controlling Russian nuclear weapons.”

And – in addition to seeking justice to address war crimes and atrocities – this is a vital real-world concern for international security in light of the fact that the Russian federation’s 6,000 nuclear warheads (tactical and strategic) may then no longer be under tight control.[65] Mr. Putin, in fact, made this scenario more probable by emasculating Russian constitutional norms and institutions, and promoting and pursuing ‘might-makes-right’ policies.

Putin’s invasion and “normalization of nuclear blackmail” has the added problem of “offering a preview of a possible world of tyranny and turmoil” – setting out a blueprint that, if not appropriately opposed, may “entice autocrats around the world to race to develop nuclear weapons”, potentially “sparking a dangerous era of nuclear proliferation”.[66]

Big picture – as the chances of a victory for Moscow look increasingly slender if Ukraine continues to receive international humanitarian support, financial aid, and advanced weapons – a balance must be found to address international justice and security without triggering ‘hard’ scenarios of a Russian governmental and societal collapse that may lead to unintended and disastrous results both regionally and across the world. This is an extremely delicate and difficult task for world leaders, policymakers and justice:[67]

“Centuries of autocracy, followed by more than two generations of totalitarianism, have left their mark. Russia’s liberal heroes too often end up fleeing, exiled or simply murdered. There is not much to work with here to create a democratic and law-abiding culture, at least in the short term. …

[T]he war should end in a way that makes clear that Russia’s aggression did not go unpunished. Future Russian leaders, as well as potential aggressors elsewhere, need to see that wars of attempted conquest are costly. …

Barring a complete collapse of the Russian state, Moscow is unlikely to disgorge all the land Ukraine wants to reclaim, pay all the reparations Ukraine wants, or allow the kinds of war-crime investigations and trials Ukraine and its sympathizers feel are justified. But American and Western security and aid commitments can help make an inevitably imperfect peace treaty acceptable to the Ukrainians. 

Preparing for peace does not mean appeasement. Making war painful and expensive for Russia can help.”

Russia’s invasion of Ukraine is grave, severe and defined by one characteristic only: aggression. Russia is invading into the heart of Ukraine, seeking to depose its lawfully elected government, with a real and potential massive impact on civilians’ lives, safety and well-being; its acts cannot remotely be justified on any of the grounds that Russia has offered. Yet all of this is being committed by a permanent member of the UN Security Council.

– Agnes Callamard, Secretary General of Amnesty International, February 2022[68]

The Laws of War – and How Russia is Violating Them: Putin’s Russia has dragged the world back to a bloodier and barbaric time

After publicly declaring that Ukraine was not a real country at all, Putin built up his forces on the country’s border and, in late February 2022, recognized two separatist regions in Ukraine as independent states. On February 24, 2022, the entire world watched as Russia launched an all-out military invasion against Ukraine. This date marks the start of Russia’s most brutal and unprovoked war of aggression to seize the democratic country with overwhelming military force:[69]

“Since the end of the second world war [in 1945], wars between countries have, for many reasons, become rarer. …

Even rarer than war between countries, however, is what Mr Putin is trying to do: imperial conquest, or invading a country to make its territory his own. As Yuval Noah Harari, a historian and author, wrote this year, ‘most governments stopped seeing wars of aggression as an acceptable tool to advance their interests, and most nations stopped fantasising about conquering and annexing their neighbours’. …

Mr Putin’s invasion of Ukraine … his aim, to use force to permanently enlarge his country’s already immense territory, is not just a rarity. It is an aberration.”

Unlike any other military invasion during the three decades since the Cold War ended in or about 1989-1991, Putin’s war and seizure of Ukraine “is not a response to any real-world action or provocation or any actual or potential threat to Russia. It is entirely about the question of what a” free and democratic “country, its people and its government are permitted to be”:[70]

“This explosive violence is the culmination of a decade during which the world’s established democracies failed to find common ground in responding to two dramatic and sometimes unnoticed changes in Eastern Europe.

One was in Ukraine, whose people became increasingly European-minded, democratic, independent and well-governed after 2014, yet lacked full support from the West.

The other was in Russia, where Mr. Putin’s regime shifted quickly, mainly during the same period, from defensive self-contained nationalism into aggressive export of single-party authoritarianism into Asia, the Middle East and Eastern Europe – and grew increasingly intolerant of pluralist democracies in its neighbourhood.”

All States have an obligation under Article 2[4] of the Charter of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State and to settle their international disputes by peaceful means.  No territorial acquisition resulting from the threat or use of force shall be recognized as lawful.

– Joint Statement on Six Months of Russia’s Full-Scale Invasion of Ukraine (56 countries, including EU, U.S.A., UK, Canada, Australia, France, Germany, Japan, Norway, Finland, Sweden, Republic of Korea, Switzerland, Turkey, etc)[71]

Russia invaded with the declared war goal of ending Ukraine’s sovereignty,[72] and its attack has not been limited to the immediate vicinity of the nominally independent quasi-states. We are in one of those moments in history, when one understands that we may be living through a critical turning point toward an uncertain future.

In February 2022, the questions were immediate: Would the international community tolerate yet another instance, the fourth since 2008, of Russia dismantling and severing a part of a sovereign state? Would the UN’s Article 2(4) be ignored yet again? In Ukraine, the facts were clear that Russia was the aggressor, and clearly this time the answer – at the outset of the war and currently at this point in time – is “no”:[73]

“Just when Ukraine’s death by five cuts seemed a possibility, the Atlantic alliance and many other countries around the world have vociferously reiterated the importance of Article 2(4). We have seen reinforcement of the norm of territorial integrity and self-determination. International relations are not linear, and violations of a norm can accumulate to the point of erosion, but we also observe sharp reversals. …

The United States has said it is defending the ‘rules-based international order’ rather than the more accurate term: international law, and specifically Article 2(4) of the United Nations Charter. Indeed, the rhetoric of Western leaders has cast the moment as one of struggle as between democracies and dictatorships, and this seems quite wrong. One hundred forty-one countries, including many non-democracies, voted to condemn Russia’s action at the United Nations. India, the world’s largest democracy, notably abstained from doing so. The five countries voting no on the resolution were indeed a rogue’s gallery—North Korea, Eritrea, Syria, Belarus, and Russia itself.”

Over the last decade, Russian foreign policy under Putin’s authoritarian leadership has become increasingly assertive, adversarial, and ambitious.[74] It has been recognized that Russia’s leadership has used war as a method of achieving its geopolitical interests, and war crimes as one its tools to win these wars.  Russia’s military culture of brutality, atrocities, scorn for the laws of armed conflict, and lack of accountability has been extensively documented – from Chechnya, Moldova, Georgia, Mali and Syria to now the Eastern European country of Ukraine – supporting a finding that “committing war crimes has become an integral part of how Moscow wages war”[75]:[76]

“[War crimes, torture, rape, barbaric murders, and M]ass killings become more likely when a society engaged in warfare produces a coherent [radicalized] narrative about why extreme violence is desirable or at least justified for a grander strategic purpose. Ideology acts as a [disturbing] social glue, ensuring that the architects of the violence, the rank-and-file soldiers who carry it out, and the broader public all tolerate, or even applaud, atrocities.”

[W]ar crimes …. are what happens when military organizations are not held to account for their actions.  … [I]t is fair to say that Russia’s military culture and organization is to blame for the crimes in Ukraine—and for the fact that Russia’s military seems to commit similar crimes in every conflict it fights.

– The Atlantic[77]

However, the scale of Russia’s unprovoked invasion of Ukraine in February 2022 – and the Russian dictator’s initial objective of regime change in Kyiv – accompanied by atrocities, war crimes and nuclear sabre-rattling is unprecedented and, forebodingly, without geographical limits.[78] 

Europe is in the midst of its first large-scale war since the end of World War II in 1945. And “evidence continues to mount indicating tens of thousands of war crimes committed by Russian forces acting under command responsibility, as distinct from occasional rogue elements. This evidence includes official statements, actions, and systemic politically-driven campaigns with clear genocidal intent, including widespread ethnic cleansing, deportations, and repeated large-scale missile and artillery targeting of civilian populations and vital civilian infrastructure”[79]:[80]

“The abundance of evidence accumulated by Ukrainian and international investigators illustrates the industrial scale on which Russian President Vladimir Putin and his [government and military leadership] are today committing war crimes in the heart of Europe. With the benefit of modern technology, it is also perfectly feasible to log the names of the commanders and units responsible. …

To date, Putin has enjoyed impunity for the violence his forces have committed in war zones ranging from Chechnya to Syria, where a generation of Russian commanders honed their skills levelling the ancient city of Aleppo. These same Russian generals have spent the past nine months subjecting Ukraine’s civilian population in the Donbas to similar torment.

Putin no doubt calculates that he will never be held accountable… for the appalling war crimes they have committed in Ukraine.” 

Russia is responsible for inciting genocide and perpetrating atrocities that show an ‘intent to destroy’ the Ukrainian people, a new legal analysis signed by more than 30 independent experts concluded. … The joint report … included input from … experts on genocide and international law, including several former ambassadors and others who were involved in the creation and proceedings of international criminal tribunals.

– ‘An Independent Legal Analysis of the Russian Federation’s Breaches of the Genocide Convention in Ukraine and the Duty to Prevent’^[81]

International law states that even war has rules, and they are applicable to nations, their leadership, and their militaries. The rules of war, or international humanitarian law (as it is known formally), are a set of international rules that set out what can and cannot be done during an armed conflict.[82]

The laws of war fall into two basic types:

• One set governs whether it is legal for a state to go to war against another, or jus ad bellum (i.e. legality of justifications for war).
• The other set lays out how all actors should conduct themselves in the midst of fighting, or jus in bello (i.e. legality of wartime conduct).[83]

Who is a war criminal? The term applies to anyone who violates a set of rules adopted by world leaders known as the law of armed conflict. The rules govern how countries behave in times of war. … The most likely way that Putin could come to be defined as a war criminal is through the widely recognised legal doctrine of command responsibility. If commanders order or know or are in a position to know about crimes and did nothing to prevent them, they can be held legally responsible.

– The Guardian[84]

(a) Right to Go to War or legality of justifications for war (jus ad bellum):

Jus ad bellum derives from “just war” doctrine dating back to the 1200s and became particularly relevant to the modern world as “hundreds of millions of people perished in World Wars I and II”:[85]

“Today, using military force against a sovereign state is considered ‘just’ for only three reasons under international law:

1. In self-defense;
2. When one state asks another state to send troops; and
3. If the U.N. Security Council determines that the war is legal under Article 51 of the U.N. Charter (for example, after Saddam Hussein invaded Kuwait, the Security Council authorized a multinational military response).”

The norms of territorial integrity and political independence are cornerstones of the post-World War II international order. Article 2(4) of the United Nations Charter requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state”.[86]

Mr Putin decried the West’s ‘fake rules’, including the inviolability of borders. 

– ‘Vladimir Putin is dragging the world back to a bloodier time’, The Economist[87]

Russia’s unilateral and illegal invasion of Ukraine on February 24, 2022, violated Article 2(4) of the UN Charter, a central tenet of the charter that requires UN member states to refrain from the “use of force against the territorial integrity or political independence of any state”[88]:[89]

“Russia’s war against Ukraine does not meet any of the criterion for just war. NATO and EU institutional expansions, while possibly undiplomatic, did not constitute acts of war against Russia. In contrast, Ukraine is confronting kinetic military aggression waged by a neighboring state. Ukraine’s resort to self-defense, and invitations for external military assistance are legal under international law.”

The idea that Ukraine may have caused the war does not withstand scrutiny. On the facts of this matter, one UN-member state (Russia) invaded another UN-member state (Ukraine), for the second time in eight years, and – also for the second time – annexed territory. The country doing the invading is Russia; the country subjected to annexation is Ukraine. The only way in which Ukraine “provoked” Russia was by existing. Under international law, this is an open and shut case.[90]

Mr. Putin’s attempt to redraw international borders is unprecedented. He’s doing it in the heart of Europe. And his arguments for invading and carving up Ukraine apply to any country that was formerly part of the Soviet Union or the Soviet sphere in Europe. The Baltic states, Poland and others feel threatened, and history plus Mr. Putin’s own statements provide them with ample reason.

– Editorial Board, Globe and Mail[91]

In March 2022, the UN’s International Court of Justice (ICJ) in The Hague ordered Russia to halt its invasion of Ukraine on the basis that the court had not seen any evidence to support the Kremlin’s justification for the war:[92]

“Ukraine initiated the case at the International Court of Justice in The Hague to contest President Vladimir Putin’s official explanation for entering the country as an effort to end a ‘genocide’ of pro-Russian separatists.

[The proceedings center on Russia’s official explanation for its invasion of Ukraine, which Russian President Vladimir Putin has said is intended to achieve the ‘denazification’ of Ukraine and end a ‘genocide’ in the country’s east. There is no evidence to support Russia’s claims.

Representatives of Ukraine argued … that the Russian accusations represented a pretext for an illegal invasion.]

The court voted 13 to 2 in favor of ordering Russia to ‘suspend’ military operations in Ukraine and to prevent armed units that are directed or supported by Russia from taking further action. Of the two judges in opposition, one was from Russia, the other from China. …

One of Russia’s longtime lawyers, Alain Pellet, resigned in the lead-up to the proceedings, writing in an open letter that it ‘has become impossible to represent in forums dedicated to the application of the law a country [namely Russia] that so cynically despises it’.”

International Court of Justice (ICJ) rulings are binding under the UN Charter, and the court order creates “international legal obligations for any party to whom the provisional measures are addressed”.  However, the ICJ has no means of enforcement.[93]

Russia refused to accept or comply with recognized international law, and continued its breach of international law in specifically refusing to comply with the order of the ICJ court[94]:[95]

“The U.N. Security Council has been stymied because Russia is a permanent, veto-wielding member. …  Historically, weakening sovereignty norms have sparked the deadliest periods in world history. The fundamental danger of Putin’s war of aggression against Ukraine is that it opens the door for other states to violate the principles of sovereignty and jus ad bellum. Without these principles, inter-state war threatens every state, and thus every individual, in the world.”

The Parliamentary Assembly of the Council of Europe on Thursday [October 13, 2022] passed a resolution declaring Russia as a ‘terrorist’ regime. The text was adopted with 99 votes in favour and one abstention (Turkey). It says recent nuclear threats made by Moscow are in breach of international law — which prompts questions over Russia’s seat on the UN Security Council. Russia was expelled from the Council of Europe in March.

– EUobserver^[96]

For the first time since the end of World War II, a major European power has unilaterally initiated war on a weaker neighbour and annexed part of the territory of a sovereign state.[97] This unprovoked Russian invasion, depredations and war crimes against Ukraine threatens the foundations of international peace, order and security. But more importantly, appeasement of Russia by world leaders, in particular the failure to take a stand on behalf of international law and justice, will mean something much bigger and more dangerous for Europe and the rest of the world in a few years time.

What do I mean by this? Namely that support for Ukraine now, during this dire time, is also support for each nation’s own freedom, national security, and stability.

Why? Because a policy of appeasement has and will continue to encourage a wider war of expansion by Russia, moving along the continuum from “gradually” to “suddenly”. By each nation adopting policy that specifically addresses Russia’s transgressions and war crimes now – at Ukraine’s borders – will more effectively prevent these same illegal threats, violence and atrocities from expanding into a wider war (and discourage other autocrats and authoritarian governments from using Putin’s illegal actions as a blueprint for their own territorial ambitions), and more particularly from reaching one’s own national borders and one’s own citizens. 

Europeans [Americans, Britons, Canadians, Australians, and citizens across the world] need to hear about the consequences if Russia were to crush Ukraine; about the invasions and depredations that would surely come next in the Baltic states, and quite likely beyond; about the conclusions a no less ruthless Chinese government would draw; and about how a failure to take a stand here would mean something much bigger and more dangerous in a few years’ time. They need to hear how staunchness now, even in the face of nuclear threats, is infinitely better than a large-scale, possibly global war in a decade.

– Professor Eliot Cohen, Professor of Advanced International Studies, John Hopkins University, and Arleigh Burke Chair in Strategy at the Center for Strategic and International Studies[98]

In these circumstances sound national policy calls for the support of international law, financial and military aid to Ukraine,[99] economic sanctions against Russia for its unprovoked and illegal invasion,[100] and criminal prosecution for the gravest crimes of concern to the international community: war crimes, crimes against humanity, and the crime of genocide. Appropriate policy would include nonrecognition of Russia’s claims to Crimea and the other regions unlawfully annexed by Russia, a commitment to the restoration of Ukraine’s territorial integrity and sovereignty, and a commitment to end the politics of impunity for war crimes committed by Russia’s leadership and military forces. 

History may well view this Russian war of 2022-2023 as a turning point in the global order.  As Eliot Cohen – the Robert E. Osgood Professor at Johns Hopkins University’s School of Advanced International Studies and the Arleigh Burke Chair in Strategy at the Center for Strategic and International Studies – has noted, “two kinds of words are needed: those explaining why the fight for Ukraine is important to” each country’s national “security and welfare, and those making the case on moral grounds”. A nation’s policy cannot succeed “in the long run without addressing both our interests and our values. When the two coincide, as they did during World War II and the Cold War”, a nation – such as the U.S., the UK, France, Australia, Canada, etc. – “can show remarkable perseverance”. When they diverge or are weak, policies collapse:[101]

 “A good speech on Ukraine will not invoke the phrase ‘rules-based international order’, which might resonate in a freshman introduction to international relations, but not with an audience of normal people. Rather, Americans and Europeans [and Canadians, Australians, British, Indians, and Japanese people, etc.] need to hear about the consequences if Russia were to crush Ukraine; about the invasions and depredations that would surely come next in the Baltic states, and quite likely beyond; about the conclusions a no less ruthless Chinese government would draw; and about how a failure to take a stand here would mean something much bigger and more dangerous in a few years’ time. They need to hear how staunchness now, even in the face of nuclear threats, is infinitely better than a large-scale, possibly global war in a decade. They need to hear that world war is not just the stuff of history books or their grandparents’ or great-grandparents’ lives, but a possibility for us if we are not prudent now.

They also need to hear about the semi-genocidal nature of the Russian attack on Ukraine—not just the extensive torture, murder, and rape of the civilian population, but the kidnapping of thousands of children, and the attempt to wipe out Ukrainian language and culture.

[Our citizens] also need to hear a celebration not only of Ukrainian courage and tenacity, but of their skill. On January 20, 1940, Churchill gave a speech in which, among other things, he reflected on Finland’s astonishing early defeats of the Soviet armies that had attacked it a few months before.

‘Only Finland—superb, nay sublime—in the jaws of peril—Finland shows what free men can do.’

And he issued a warning:

‘If the light of freedom which still burns so brightly in the frozen North should be finally quenched, it might well herald a return to the Dark Ages, when every vestige of human progress during two thousand years would be engulfed.’

Now is a moment for Churchillian rhetoric and insight, suitably modified to the limitations of those who may share his instincts but lack his brilliance.

Modern politicians very rarely speak this way, but they need to try, and they will be heard if they do so. They do not have to reach Churchillian heights. The opposition to aid to Ukraine is still divided [think pro-Putin Republicans in the U.S. and Hungary’s Viktor Orbán], hampered by its own crankiness and embittered introversion, and undermined daily by Russian barbarity, and no less, the astonishing Julius Streicher–like candor  with which its propagandists howl for the blood of innocents. [Note: Julius Streicher, February 12, 1885-October 16, 1946, was a member of the Nazi Party and Reichstag]

Ukraine’s struggle for freedom and for its very existence is the struggle of a much larger order, not just in Europe but globally, and indeed of the human spirit. It needs to be understood not only in the somnolent rhythms of bureaucratic choice or academic analysis, but in language that sings. The situation calls for sound policy, no doubt; it also calls for eloquence that soars. There is an epic speech to be delivered here; let us hope that there is someone who can deliver it.”

Supporting Ukraine through the war is a commitment to freedom, justice, the rule of law, a peaceful stable society, and the dignity of every human being,[102] and a strong display of geopolitical partnerships, alliances, values and strength as Russia falters. A loss for Putin’s authoritarian regime in “Ukraine will make autocrats everywhere wary of starting wars of conquest—and doubly so if defeat leads to his downfall. ⁠The world will be more peaceful if he loses. But lesser strongmen must learn the right lessons”[103] that result from Putin’s war of aggression, illegal actions, war crimes and atrocities.

Last week we saw the Ukrainian flag raised once again over Kherson only weeks after Putin declared that the city would be part of Russia for ever. It is a historic milestone in Ukraine’s fight to take back what’s theirs. They are standing up for fundamental principles that matter to us all — the principles of sovereignty and self-determination, which are the very foundations of a stable international order. … [W]e will stand with Ukraine.

 – Prime Minister Rishi Sunak, United Kingdom (November 13, 2022)[104]

Although all atrocities and war crimes are horrendous, the crime of aggression in particular threatens the very fabric of the international laws that enable all states to exist without constant threats to their borders and their citizens.[105] The “act of aggression is today acknowledged as the most serious form of illicit recourse to force”. It is considered to be the most serious crime that can be perpetrated, undermining the very existence of the State, its territorial integrity, and as such, the core principles of international law.[106] The crime of aggression is often called the “mother of all crimes”—the supreme international crime, which encapsulates all other international crimes – for it is the crime of aggression from which the other international crimes often flow (i.e. war crimes, crimes against humanity, genocide).[107]

Upholding international law makes peace and security possible.[108] Accountability is therefore fundamental to the international desire for peace, security, stability, and good government.

Leaders of the G20 countries have issued a joint statement denouncing the war in Ukraine and calling for Russia’s ‘complete and unconditional withdrawal’.

– Globe and Mail[109]

(b) Right Conduct During War or legality of wartime conduct (jus in bello)

Even though Russia illegally invaded Ukraine, there are also rules of war in effect that curb the brutality of war by setting limits on the weapons and tactics that can be employed as well as protecting people who are not fighting in the conflict:[110]

• Civilians cannot be deliberately attacked – nor can the infrastructure that is vital to their survival.
• Certain weapons are banned because of the indiscriminate or appalling suffering they cause – such as anti-personnel landmines and chemical or biological weapons. In 1996, the International Court of Justice concluded that the use of nuclear weapons are contrary to international humanitarian law.
• The sick and wounded must be cared for – including injured soldiers, who have rights as prisoners of war.
• Serious offences such as murder, rape or mass persecution of a group are known as “crimes against humanity” or, in some circumstance, “genocide”.

“International humanitarian law” (jus in bello) applies to all warring parties irrespective of the reasons for the conflict. It does not speak to whether or not the cause of war is just. Instead, this body of law seeks to protect war victims and their fundamental rights, no matter to which party they belong. Four “Geneva Conventions” constitute the central pillars of international humanitarian law:[111]

• The first convention, dating back to 1864, stipulates that the sick and wounded should be protected impartially, and that medical facilities should not be targeted during fighting.
• The second extends the first convention to the shipwrecked.
• The third requires that all warring parties treat prisoners of war humanely, and that prison camps should be open to inspection by neutral countries or entities.
• The fourth convention, agreed on the heels of World War II in 1949, requires U.N. member states to punish those who commit crimes such as unlawful killing, torture, serious bodily injury or suffering, unlawful deportation (ethnic cleansing), unlawful confinement, and gender-based crimes such as rape and forced prostitution. The fourth convention includes three additional protocols, extending civilian protections to victims of wars against racist regimes, wars of self-determination and internal conflicts.

In 1949, after the horrors of World War II, diplomats gathered … in Geneva to adopt four treaties that reaffirmed and updated the previous treaties and expanded the rules to protect civilians. They’re now collectively known as the Geneva Conventions of 1949 and contain the most important rules of war. … [T]he rules of war have been ratified by 196 states. … There are … six crucial principles that are relevant to ongoing conflicts … 1. No targeting civilians … 2. No torture or inhumane treatment of detainees … 3. No attacking hospitals and aid workers … 4. Provide safe passage for civilians to flee … 5. Provide access to humanitarian organizations … 6. No unnecessary or excessive loss and suffering.

– The ‘Rules of War’ Are Being Broken, NPR[112]

A separate “Convention on the Prevention and Punishment of the Crime of Genocide” known simply as the Genocide Convention, lists five acts that can be punishable as genocide. These can be committed in or outside the context of war. Genocide is based on one party’s “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.  Intent is the main bar to determine whether genocide is taking place, and not the overall number of people killed. The acts include causing serious bodily or mental harm to members of the group; deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. Article 1 notes that the contracting parties to the convention undertake not just to punish, but to prevent, genocide.[113] 

There’s no immunity for international crimes, and one of the Nuremberg principles … is that there’s no statute of limitations for war crimes or crimes against humanity.

– Karim Khan KC, Chief Prosecutor, International Criminal Court[114]

(c) Investigation and Trial: War Crimes and growing list of Atrocities

As the war against Ukraine has ground on, we have heard a lot about Russia committing war crimes from World leaders, the UN, government officials, and the front pages of our newspapers and news apps.  In surveying these heinous acts and a growing list of atrocities, it would appear that Russia today is committing four essential types of crimes: aggression (against the sovereignty, integrity or independence of another State), war crimes, crimes against humanity, and genocide.

Objectively, the entire invasion by Russia would appear to be a “crime of aggression”, which crime would presumably reach Mr. Putin.[115] The crime of aggression is often called the “mother of all crimes”—the supreme international crime, which absorbed all other international crimes.[116] As noted by the Nuremberg tribunal, that a country and its leadership planned and waged aggressive war is a charge of the utmost gravity, its consequences affecting the whole world:[117]

“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.”

Early in the war, a majority of member states in the U.N. General Assembly recognized Russia as the aggressor. Additionally, even though U.N. Security Council action is hampered because of Russia’s veto power, at a UN Security Council meeting on September 27, 2022, several states charged Russia with jus ad bellum violations (illegal war time conduct). In terms of Russia’s crimes while conducting the war, the International Criminal Court and the U.N.’s Independent International Commission of Inquiry on Ukraine have documented evidence of acts that appear to constitute war crimes, including the indiscriminate killings and sexual and gender-based violence against civilians. More than a dozen countries have submitted documentation to the International Court of Justice with allegations of genocide being committed by Russia in Ukraine.[118]

The Russian Federation continues to treat its international legal commitments with contempt through its practices; flouting the international prohibition on the use of force and intervention, whilst also disregarding its obligation to respect the sovereignty and territorial integrity of other states.

– Kieran O’Meara, E-International Relations[119]

The International Criminal Court’s involvement and investigation of war crimes in Ukraine has garnered the support of countries long hostile to the court’s international criminal jurisdiction, including the United States, which — like Russia and Ukraine — is not a member party of the ICC. Dozens of countries have pledged support and some $20 million for the International Criminal Court’s effort in Ukraine. While little is known about the scope of the ICC’s investigation at this time, the ICC most certainly has criminal jurisdiction to investigate and prosecute war crimes, crimes against humanity, and the crime of genocide, but specifically does not have the jurisdiction to prosecute the crime of aggression[120] against nationals of a non-member state (i.e. Russia) without a direct referral from the United Nations Security Council. Russia, which holds veto power on the UN Security Council, would certainly stand in the way:[121]

“But other countries, including the U.S., may also not look favorably on the prospect of prosecuting Putin for the crime of aggression, for fear of setting a precedent that could boomerang against them.

 ‘They don’t want to deal with the crime of aggression because they know that if it’s used against Russia, a permanent member of the Security Council, today, it might be used against them tomorrow’, said [International law specialist Phillipe] Sands. ‘The big elephant in the room in Ukraine is Iraq, which was also a manifestly illegal war and produced a very different response in Britain and in the United States’.

In practice, that renders the ICC powerless to prosecute the crime that many Ukrainians and observers argue has enabled all others. ‘The crime of aggression is the mother crime. If there wasn’t this unprovoked war and aggression, there would be no further crimes, no war crimes, or crimes against humanity’ …. ‘But in the existing framework of the international accountability mechanism, there is no accountability for the crime of aggression’.”

The ICC has jurisdiction to investigate and prosecute war crimes, crimes against humanity, and genocide, even where neither Russia nor Ukraine has signed on to the ICC (as a signatory country to the Rome Statute). Why? Ukraine in 2015 accepted ICC jurisdiction for war crimes and crimes against humanity etc. committed on its territory. In these circumstances, the ICC has jurisdiction when state parties refer a case to the prosecutor, or the prosecutor initiates a case on his own motion. Almost 40 state parties have made such referrals against Russia, and ICC prosecutor Mr. Karim Khan KC has initiated an investigation. When the investigation is complete, the ICC prosecutor will refer the matter to “a Pre Trial-Chamber and the case will go forward if those judges determine the charges have a reasonable basis. The Security Council can vote to delay the investigation for 12 months, but such a vote is unlikely. A Russian veto should not be able to stop this case. If Russia were to start its own investigation of its crimes, under the principle of ‘complementarity’ — the home state goes first — then the case could be delayed, but Russia likely will be deemed ‘unwilling or unable’ to proceed with its own investigation”.[122]  

In short, while the ICC does not have jurisdiction to investigate and try Russian leaders and nationals for the crime of aggression, it does have jurisdiction to investigate and prosecute all war crimes, crimes against humanity, and the crime of genocide.

The crime of aggression is a leadership crime. … It’s the only crime that takes us straight to the top table: the decision-makers, the people who participated in the decision to launch the war. We’re talking about 20 people max, and the proof is very straightforward.

– The Intercept[123]

During the course of Russia’s war against Ukraine there has been identified a growing list of heinous acts and atrocities committed by Russian forces against Ukrainian military personnel and civilians. It is well established that Russia is the aggressor, that Mr. Putin “ordered an unprovoked war” and “the destruction of a neighboring nation”. World leaders have called for a war crime trial in light of clear indications of war crimes. International investigators have already begun collecting evidence and interviewing witnesses:[124]

“[T]he world has … identified crimes that are unacceptable even in the fog of battle. Objectively gathering and documenting evidence is a powerful way to cut through the muck and preserve the possibility that someone might someday be held accountable. It holds out the possibility, however slim, that someday a judge will declare the orders to fire on a village or hospital illegal and that that legal judgment might one day serve as a deterrent in the next war. War crime investigations are a powerful political tool that can be used to underscore the dignity of victims and the lawlessness of the invaders.

An array of international criminal laws emerged after World War II, most famously the Geneva Convention of 1949, which aims to hold combatants personally responsible for war crimes — such as intentionally slaughtering civilians, torture, wanton destruction of property, sexual violence, pillaging, conscripting children. Other measures included the Genocide Convention and laws prohibiting crimes against humanity.

The Russian Army’s actions give every appearance of violating these rules, and investigations have already begun in the International Criminal Court and some other courts. The indiscriminate shelling of cities and towns, the killings evidenced by the mass graves discovered in Bucha and the bombing of a Mariupol theater are among the many actions that could be deemed war crimes. The entire invasion would appear to be a crime of aggression, which would presumably reach Mr. Putin. If these crimes are determined to be part of a widespread or systematic attack on the civilian population based on a state policy, they could also amount to crimes against humanity.

Russia, for the record, says the atrocities in Bucha are all staged. And it may well be that investigators will find evidence of atrocities committed by Ukrainian troops against Russians or collaborators. All the more reason to conduct a thorough accounting. …

Even if the process is difficult and stretches into months and years, it is important that history be left a forensic, credible, verified and judicially processed record of the specific crimes in Ukraine. Those responsible should be named, their actions specified, and if at all possible, the guilty should be locked away. The very fact that Russia is arguing that the atrocities were all concocted requires a detailed and incontrovertible judicial response. …

[I]t is … imperative to make sure that the horrific evidence of criminal atrocities on display in Bucha and so many other places [in the Ukraine] is promptly collected while it is still there and that witnesses are questioned while their memories are still raw. Posterity must know what really happened. Justice must be given a chance.”

Russia is accused of committing war crimes throughout Ukraine, with rape, murder and torture all being used against the civilian population.

– EuroNews[125]

Since launching his unprovoked and illegal war of choice, Russian President Vladimir Putin has unleashed unrelenting violence that has caused death and destruction across Ukraine.  There have been numerous credible reports of indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities.  Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians dead or wounded.  Many of the sites Russia’s forces have hit have been clearly identifiable as in-use by civilians.  This includes the Mariupol maternity hospital, as the UN Office of the High Commissioner for Human Rights expressly noted in a March 11, 2022 report.  It also includes a strike that hit a Mariupol theater, clearly marked with the word “дети” — Russian for “children” — in huge letters visible from the sky.  Putin’s forces used these same tactics and atrocities in the cities of Grozny (in Chechnya) and Aleppo (in Syria), where they intensified their bombardment of these cities, critical infrastructure, and civilians to break the will of the people.[126] Russia’s attacks on Ukraine’s civilian infrastructure, including energy facilities, have been described as possible war crimes by the office of the United Nations High Commissioner for Human Rights and Amnesty International:[127]

“The Geneva conventions and additional protocols shaped by international courts say that parties involved in a military conflict must distinguish between ‘civilian objects and military objectives’ and that attacks on civilian objects are forbidden.

This prohibition is also codified in the Rome Statute of the International Criminal Court (ICC), which earlier this year opened an investigation into possible war crimes in Ukraine.

That seems clear-cut, but some infrastructure owned and used by civilians can also be a military objective. Military objectives are defined as ‘those objects which by their nature, location, purpose or use make an effective contribution to military action’ and whose destruction or capture ‘offers a definite military advantage’. …

Nigel Povoas, lead prosecutor for a team of international experts assisting Kyiv war crimes investigators, told Reuters that Russian attacks in the past two months have ‘focused on eliminating infrastructure crucial to the means of civilian survival such as heat, water, power and medical facilities’. … [T]he scale and the intensity of the attacks can additionally amount to them being considered as ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’.

This is forbidden under international humanitarian law and was confirmed as a war crime by rulings of the U.N. tribunal for the former Yugoslavia relating to the siege of Sarajevo.”

Evidence of Russian war crimes is not a new aspect of the war in Ukraine. International agencies and organizations have stated since early March 2022, just days after Russia launched its invasion, that they would probe war crimes and other human rights violations.[128] 

Local authorities, civilians, journalists, and Human Rights Watch and other independent organizations have extensively documented torture, rape, mass killings, and indiscriminate attacks on civilians (including children). A series of findings and growing list of war crimes and atrocities – also identified by an independent UN Human Rights monitoring mission and inquiry on Ukraine[129] – include the following:[130]

• unlawful killings – including summary executions of civilians (men, women, children) – in more than 30 settlements in Kyiv, Chernihiv, Kharkiv and Sumy regions, by Russian armed forces. “Common elements” of the crimes included “visible signs of executions on bodies, such as hands tied behind backs, gunshot wounds to the head, and slit throats”.
• Torture, mutilation, and ill-treatment of civilians and prisoners of war.
• Sexual violence against Ukrainian communities – including children – involving rape, gang rape, torture, force public stripping, and threats of sexual violence. Women and girls constitute the majority of victims. It has been alleged that the Russian army has used rape as a “deliberate” military strategy.
• Arbitrary detention and enforced disappearance of representatives of local authorities, journalists, civil society activists and other civilians. Some eventually found dead.
• Targeting and destroying civilian infrastructure in Kyiv and more than 25 other cities as winter approaches, disrupting electricity, fuel supplies, power and water infrastructure, and killing civilians (as the Russian army suffered a series of setbacks on the battlefield in September and October 2022).
• Targeting and deliberate destruction of thousands of civilian schools, hospitals, and civilian high-rise apartment buildings across Ukraine. When a 2,000-pound Russian missile “slammed into a crowded shopping mall in the central Ukrainian city of Kremenchuk” one day in June — killing at least 18 people — “that was par for the course for Russia”.
• Targeting of civilian nuclear power plants, power and water infrastructure, and cultural properties across Ukraine.
• Forced displacement and deportation of thousands of children from the Ukraine to Russia.
• Overt command to kill civilians.
• Usage of indiscriminate cluster munitions, multi-launch rocket systems, and airstrikes in densely populated areas where there were no military personnel and no military infrastructure.
• Threatening Ukraine with the utilization of tactical nuclear weapons.[131] [note: world and military leaders “are worried that Moscow is embarking on a dangerous path of nuclear escalation amid the painful and humiliating setbacks that Russian forces have suffered on the battlefield in Ukraine. The latest reversal for Russia, and a significant indication of the trouble its military is having holding the territory it captured in the early weeks of its invasion, is the withdrawal from the city of Kherson” – the only regional capital to fall under its control since it invaded its neighbour – “which weeks ago it had declared part of Russia”.).[132]
• Terrorizing and targeting the civilian population and critical infrastructure as winter approaches to eliminate or undermine the Ukraine as a functioning society.

After nine months of war, millions of Ukrainians are confronting new foes: darkness, cold, and taps running dry. With temperatures already dropping below zero in parts of Ukraine, another hail of Russian missile attacks on infrastructure last week left nearly half the energy system out of operation. … Ukraine’s allies need to do more to help. Since targeting civilian infrastructure is a war crime, foreign governments should make clear they will pursue all Russians responsible.

– Editorial Board, Financial Times, November 22, 2022[133]

With “Russian war crimes apparently being committed in Mr. Putin’s war in Ukraine, determining who bears command responsibility will again be an important focus of the International Criminal Court (ICC) investigation that has already been initiated. As in Syria, an analysis to prove whether Mr. Putin and other senior Kremlin officials knew or should have known of such crimes by troops under their command, and failed to stop them, should now be done”:[134]

“The decisive issue will thus lie in determining whether he took steps to stop them and to punish those who committed them. On this issue, Mr. Putin and the Kremlin seem to be digging a deeper and deeper hole. A commander respecting their legal obligations, upon learning of such atrocities, would immediately order troops to stop. Instead, Mr. Putin has declared reports of these war crimes to be ‘fake’, as if signalling to Russian troops not to worry about committing them because the Kremlin will help to cover them up.

Mr. Putin … appears to be tacitly giving the green light for more such atrocities in Ukraine. Mr. Putin even bestowed honours on the Russian military brigade that has been accused of massacring civilians in the Ukrainian village of Bucha, saying that its ‘skillful and resolute actions’ are ‘an example of the performance of military duty, courage, selflessness and high professionalism’.

Even if the ICC were to charge Mr. Putin for war crimes committed in Ukraine, would that make a difference? His actions suggest that he feels secure in the Kremlin, and that no one would dare to arrest him in his nuclear-armed nation. But Mr. Putin, in essence, is betting on remaining president-for-life. That is a difficult position for any aging war criminal to maintain. Indeed, others have not managed it successfully, including former presidents Slobodan Milosevic of Serbia, Omar al-Bashir of Sudan, Hissène Habré of Chad and Charles Taylor of Liberia.

Justice has a long memory, and one never knows when it might be possible. Demonstrating responsibility for war crimes in Ukraine is important not only as a matter of justice, but also for the possibility of deterring further commission of such crimes today.”

The U.S. think tank the Institute for the Study of War (ISW) said on Monday [October 17, 2022] that Russia intended to focus on terrorizing the Ukrainian population instead of pushing for gains on the battlefield.

– Newsweek[135]

The Times of London recently noted that outside of the military leadership structure itself, “much recent Kremlin-backed [news and other] broadcasting on the ‘special military operation’ in Ukraine” appears to “revel in the horrors inflicted on the civilian population”. Collaboration between the Kremlin and state broadcasters dates back more than two decades, and the Kremlin’s tight control of the media has increased since the invasion of Ukraine.[136] For example, “a member of the state Duma, Andrey Gurulyov, on the same day as [former head of the Kremlin-financed RT network, Anton] Krasovsky’s advocacy of child murder, explained to viewers of the main Russian terrestrial channel the benefits of targeting Kyiv’s power and water supplies: ‘The absence of electricity and water means the absence of refrigeration and sewers … one week after and the city of Kyiv will be swimming in shit. There will be a clear threat of an epidemic … there will be a mass of refugees to the West’”.[137] For several months during the course of the war “pro-Kremlin media” proposed that Russia take the extraordinary step of launching a nuclear strike against Ukraine – reducing the country to “ashes” – should they determine they were to lose the conflict. The pro-Putin media declared on state TV that Russia must win its war in Ukraine – in a way they consider to be a victory – or there will be World War III.[138]

Based on substantive evidence to date, there appears to be a systemic Russian policy targeting Ukrainian civilians, and despite blanket denials from the Kremlin, a Russian soldier has stepped forward to provide first-hand details of looting, torture and killing of civilians that has taken place in the Ukraine at the orders of military leadership.[139]

Vladimir Putin is the unabashed lord of war crimes in the 21st century. Or as his foreign minister, Sergei Lavrov, put it last week, ‘Russia is not squeaky clean. Russia is what it is. And we are not ashamed of showing what we are’.

– The Philadelphia Inquirer[140]

World leaders – from the U.S. and Canada to the EU and UK – have accused President Putin and Russia of carrying out war crimes in Ukraine.[141]

The International Criminal Court (ICC) may offer a path to hold Russia accountable. The chief prosecutor of the International Criminal Court has opened an investigation into whether war crimes had been committed by Russia in Ukraine.  If sufficient evidence is found to support the criminal case, it is anticipated that the chief prosecutor will look to indict senior Russian officials on charges of war crimes and crimes against humanity, or even genocide, in 2023.[142]

Although all of these are horrendous crimes, the crime of aggression in particular threatens the very fabric of the international laws that enable all states to exist without constant threats to their borders. Upholding international law makes peace possible. Russia’s leaders must be held to account.

– Dr. Lisa Morjé, Professor of Government and Foreign Service (Georgetown University)[143]

The International Criminal Court, UN’s International Court of Justice, and Special Tribunals – background and jurisdiction[144]

(a) Jurisdiction of International Court of Justice and International Criminal Court

The International Court of Justice (ICJ) and the International Criminal Court (ICC) both have jurisdictional roles in upholding the rules of war. The two courts and their international jurisdiction may be summarized as follows:[145]

• The International Court of Justice (ICJ) is a civil court. The ICJ is the primary judicial branch of the UN, and may entertain two types of cases. The ICJ has jurisdiction to hear and rule on legal disputes between sovereign states (“contentious cases”) and requests for advisory opinions on legal questions from UN organs (i.e. General Assembly, Security Council, etc.) and specialized agencies (“advisory proceedings”). The ICJ concentrates on international duty and responsibility of States, and in particular addresses disputes involving sovereignty and boundaries, any point of international law (including acts of aggression), the existence of any fact which (if established) would constitute a breach by a State of its international obligations, treaty violations, and maritime disputes, etc.  The ICJ does not have jurisdiction to prosecute individuals accused of war crimes or crimes against humanity. Rulings of the ICJ are enforced by the UN Security Council.  However, Russia – one of Security Council’s five permanent members – can veto any proposal to sanction it. The ICJ derives its authority from the Charter of the United Nations.
• The International Criminal Court (ICC) is a criminal court of last resort composed of four primary organs (the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry). The ICC is an independent judicial body that investigates and prosecutes individuals for international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. The International Criminal Court does not replace national criminal justice systems; rather, it complements them. The ICC can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling to genuinely do so. The ICC is the permanent modern successor to Nuremberg, which prosecuted key Nazi leaders in 1945. Nuremberg cemented the principle that nations could set up special courts to uphold international law. The ICC is not part of the UN. The ICC derives its authority from the Rome Statute.

The International Criminal Court investigates and prosecutes international crimes committed by individuals. The International Court of Justice resolves disputes between states. 

– Alex Whiting, Professor of Law at Harvard Law, former prosecutor at the International Criminal Court[146]

(b) International Criminal Court (ICC) and prosecution of war crimes

The modern history of prosecuting war crimes dates back to the Nuremberg trials, which were established by the charter of the International Military Tribunal, signed by the Allies in 1945. It based on a radical new premise: some crimes are so heinous that the international community must step in to restore justice, overruling the principles of national sovereignty. [147]

The Nuremberg Trials after World War II – and the United Nations-created ad hoc tribunals after the fall of Yugoslavia and the Rwandan massacre – “established criminal trials as the international legal response after genocide and gross violations of human rights”.[148] The Nuremberg and Tokyo tribunals were established in the wake of the Second World War in 1945, and the U.S. played a leading role in ensuring that atrocities and war crimes committed by the Nazis and Japanese military were addressed. In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognised the need for a permanent international court to deal with the kinds of atrocities which had just been perpetrated. The idea of a system of international criminal justice re-emerged after the end of the Cold War (1989-1991)[149]:[150]

“The legacy of the twentieth century is one of unsurpassed brutality. Within the span of one century, we have witnessed the genocide of Armenian civilians by the Turks in 1915; the murderous Japanese assault on Nanjing, China, in 1937; the Nazi Holocaust against the Jews in mid-century; the special horror of Josef Stalin’s crimes against his own people; apartheid in South Africa; the annihilation of millions of Cambodians by their fellow countryman, Pol Pot; the grotesque cruelties of Idi Amin in Uganda; vicious genocides in Yugoslavia and Rwanda; and the ongoing shame of Darfur, the Congo, and the other warring regions of the African continent. What, then, is the simple, powerful idea behind this great gathering? The International Criminal Court’s mandate is to prosecute the perpetrators of genocide, crimes against humanity and war crimes, the most serious offenses ever codified, making it a newborn with enough muscle to influence the way nations, and especially their leaders, consider their choices. It has been mandated to mount an assault on the age-old scourge of criminal impunity, on behalf of the peoples of the world.”

Justice is a key prerequisite for lasting peace. International justice can contribute to long‐term peace, stability and equitable development in post‐conflict societies. These elements are foundational for building a future free of violence. ​​

– International Criminal Court[151]

At the end of the twentieth century, two remarkable events took place. First was the end of the Cold War, which left the world at that time with the U.S. as the single economic and military superpower – but growing influential centres’ created by a prosperous Pacific Rim, China as an emerging new superpower, and a stronger European Union. The second event was the birth of the International Criminal Court (ICC) – the first permanent tribunal of its kind. The ICC was set up to prosecute crimes against humanity, war crimes and genocide. Its mandate to confront impunity and demand accountability for the worst international crimes known.[152]

Nearly two-thirds of the world’s countries worked together to create the ICC in the aftermath of genocides in Rwanda (1994) and the former Yugoslavia (1992-1995). They acted in the belief that a permanent international criminal court – more than the temporary international tribunals that came earlier to address crimes in individual countries or regions – would help bring an end to impunity for serious crimes. The ICC is the only global, permanent court with a mandate to prosecute those responsible for genocide, war crimes, crimes against humanity, and the crime of aggression. It acts as a backstop and a court of last resort when a countries justice system is unwilling or unable to address and achieve justice.[153]

The International Criminal Court does not replace national criminal justice systems; rather, it complements them. The ICC can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling to genuinely do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility. This is known as the principle of complementarity, under which priority is given to national systems. States always retain primary responsibility for trying the perpetrators of the most serious of crimes.^[154]

What this means is that the ICC is a court of last resort. The ICC anchors a system of justice for serious international crimes rooted in national courts.  National authorities have the first and primary responsibility to investigate and prosecute atrocity crimes. The ICC only steps in when individual countries fail to genuinely carry out national criminal proceedings^[155]:^[156]

“The ICC was designed as a tribunal of last resort to be triggered only when countries proved unwilling, or unable, to try criminal cases in their own national courts. Unsurprisingly, the record of domestic prosecutions is not inspiring.”

On March 11, 2003, the International Criminal Court was inaugurated into a world that was fast moving to one where powerful nations favour narrow interests over universal values, compete or cooperate in zero-sum games, and where authoritarian leaning political leaders (within even democratic nations) and authoritarian regimes threaten the international order and its system of alliances, norms, and institutions built up to ensure peace and security and political stability and prosperity over the last 75 years.[157] 

When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party (a signatory country to the Rome Statute) or where the crime was committed in the territory of a State Party. Also, a State not party to the Rome Statute may decide to accept the jurisdiction of the ICC. These conditions do not apply when the UN Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office of the Prosecutor. The UN Security Council has the power to refer “situations” over which the ICC would not otherwise have jurisdiction.^[158]

On the battlefield the rule of law is what separates a legitimate military operation from wanton criminal violence. The more the president intervenes in the military justice system, the harder it is for commanders to ensure that their troops remain on the right side of that sharp dividing line.

– ‘The Savage Injustice of Trump’s Military Pardons’, New York Times[159]

The International Criminal Court is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious atrocity crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression:[160]

• The crime of genocide is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group – whether or not the country is in a state of war – by killing its members or by other means causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group. The acts may be committed by state officials or private individuals.
• Crimes against humanity are serious violations committed as part of a large-scale attack against any civilian population (whether or not the country is in a state of war). The acts may be committed by state officials or private individuals, and against their own nationals or nationals of other states. The fifteen forms of crimes against humanity listed in the Rome Statute include murder, rape, imprisonment, enforced disappearances, enslavement (particularly of women and children), sexual slavery, torture, apartheid and deportation.
• War crimes are grave breaches of the Geneva conventions in the context of armed conflict that violate the laws or rules of war, and include the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against civilian targets such as hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes; and the use of child soldiers.
• The crime of aggression (adopted into force on July 17, 2018) is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State. The act of aggression includes invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations. The perpetrator of the act of aggression is a person who is in a position to effectively exercise control over or to direct the political or military action of a State.

The act of aggression is today acknowledged as the most serious form of illicit recourse to force. Within the international order “aggression” may be seen as the most serious crime that could be perpetrated, undermining the very existence of the State, its territorial integrity, and as such, the core principles of international law.[161]

The ICC is a judicial institution with an exclusively judicial mandate. It is not subject to political control. As an independent court, its decisions are based on legal criteria and rendered by impartial judges.

– International Criminal Court[162]

Every individual accused brought before the International Criminal Court is presumed innocent unless and until proven guilty before the Court. And every accused before the ICC has the right to a public, fair and impartial hearing of their case.[163]

Justice, “it should not be forgotten, means not only doing good by individual victims or segments of society affected by crime, but also ensuring that the fair trial rights of suspects and accused in criminal proceedings” before the ICC “are fully respected”. Justice cannot be done, nor can it be seen to be done, “unless persons presumed to have committed international or other crimes are treated with full due process”.[164]  To this end, a series of guarantees are set out in the Court’s legal documents for every accused before the ICC, including the following rights:[165]

• to be defended by the counsel (lawyer) of their choice, present evidence and witnesses of their own and to use a language they fully understand and speak;
• to be informed in detail of the charges in a language which they fully understand and speak;
• to have adequate time and facilities for the preparation and presentation of the defence and to communicate freely and in confidence with counsel;
• to be tried without undue delay;
• not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
• to have the Prosecution disclose to the defence evidence in its possession or control which it believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of the Prosecution’s evidence.

Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the Court. In this respect, the Office of the Prosecutor’s prosecutorial policy is to focus on those individuals who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators:^[166]

• No one is exempt from prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed.
• Acting as a Head of State or Government, minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC.
• In some circumstances, a person in a position of authority may even be held responsible for crimes committed by those acting under his or her command or orders.
• Likewise, amnesty cannot be used as a defence before the ICC. As such, it cannot bar the International Criminal Court from exercising its jurisdiction.

Nevertheless, given the deep divisions that have arisen among the world’s major powers over the Ukraine war – and the impunity to date that Putin has enjoyed for war crimes in Chechnya and Syria etc – there is justified scepticism that Putin and other Russian officials will indeed face criminal prosecution before the ICC for war crimes and atrocities committed during the invasion. However, the Chief Prosecutor for the International Criminal Court is currently investigating offences on the ground in Ukraine and there is no statute of limitations for war crimes.[167] Although Russia is not a party to the Rome Statute, which established the International Criminal Court (ICC), Ukraine has accepted the ICC’s jurisdiction for offenses that have occurred on its territory since 2014 (other than the crime of aggression, for which the ICC does not have jurisdiction for non-parties)[168]:[169]

“Serious violations of the rules of conflict constitute war crimes. Some of those are codified as such by the Rome Statute of the International Criminal Court. The ICC would have jurisdiction over war crimes committed in Ukraine, which made a declaration in 2015 accepting ICC jurisdiction over crimes committed on its territory since 20 February 2014. Russia signed the Rome Statute in 2000 but withdrew its signature in 2016.

The military intervention appears to meet the definition of aggression under the Rome Statute of the ICC.  Art. 8bis(1) of the Rome Statute defines, in relevant part, a ‘crime of aggression’ as ‘an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. Although the Court, barring an unlikely Security Council referral, will not have jurisdiction over the crime of aggression in this situation a number of states, including Ukraine, have domestic laws that would allow prosecution of those responsible for this crime.”

In short, the ICC has jurisdiction to address, investigate and prosecute the crime of genocide, crimes against humanity and war crimes. The ICC does not have jurisdiction to prosecute the crime of aggression because: “the ICC can act only with the approval of the UN Security Council, over which Russia has veto power; or, alternatively, against the nationals of a state that has agreed to be subject to its jurisdiction over aggression. As of May 2022, only 43 of the ICC’s 123 state parties have accepted that jurisdiction. Neither Russia nor Ukraine is a party to the ICC. Although Ukraine has twice declared that it accepts the jurisdiction of the court for crimes committed within its territory, Russia’s status as a non-state party bars the ICC from addressing ‘aggression’ in this conflict”.[170]

Even if it were possible to bring Putin to The Hague, the ICC couldn’t try him for one of the most critical crimes — aggression — for which he’s clearly responsible. That’s because the ICC can only try aggression crimes – defined as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which … constitutes a manifest violation of the Charter of the United Nations,” per the Rome Statute – if the countries in question are signatories. Neither Russia nor Ukraine is.

– Here’s what the ICC can actually do about Putin’s war crimes, Vox[171]

(c) Demand for a Special Tribunal to investigate Russia for the “crime of aggression” against Ukraine: the supreme international crime

As noted, as a principle of international law, the United Nations Charter, signed in 1945, prohibits aggression and the recourse to force in the relations between States, except in the case of self-defence (Article 2(4)).  Under the ICC, the act of aggression is also addressed in the field of international criminal law.[172]  As such, the act of aggression is now defined and prohibited not only by public international law (the UN), but also international criminal law (the ICC): [173] 

• The act of aggression can engage the responsibility of the State for illicit behavior before the UN’s International Court of Justice (ICJ), giving rise to sentences and reparations. However, Russia is able to thwart the jurisdiction of the ICJ for the reasons set out above.
• The crime of aggression can also engage individual criminal responsibility before the International Criminal Court (ICC). In the appropriate case – which unfortunately is not the case with respect to Russia’s actions in Ukraine (as explained above) – the ICC may be competent to condemn individual perpetrators found guilty of the crime of aggression to jail sentences, and to take measures of individual compensation for victims. The international law tendency is toward collective rather than individual compensation.

As noted, the International Criminal Court (ICC) has the jurisdiction to investigate war crimes, crimes against humanity, and acts of genocide committed on the territory of Ukraine. However, the ICC cannot exercise its jurisdiction in relation to the crime of aggression if the act of aggression is committed by a State that is not party to the statute of that court (Rome Statute), unless the UN Security Council refers the matter to it. Since Russia is no longer a party to the Rome Statute – and would exercise its veto in the Security Council against a referral to the ICC – the ICC cannot, as matters presently stand, investigate or prosecute the crime of aggression against Ukraine.[174]

Accordingly, given the limits of the ICC’s and ICJ’s jurisdiction for the crime of aggression (the mother of all international crimes), there is currently no forum where a prosecution of aggression could be launched. In particular, in the current context, “there is no international body with the authority” to hold individual Russian leaders criminally responsible for the “mother of all crimes”, namely the leadership “crime of aggression” in Ukraine.[175]

However, international law is made and expanded over time, and the steps being taken now on the crime of aggression are part of this process. For example, there is a growing voice among international law experts for the establishment of a “special international tribunal” to try senior Russian officials for the crime of aggression.

The E.U. – while continuing to support the International Criminal Court in respect to its jurisdiction to investigate and prosecute war crimes and crimes against humanity – has proposed working with the international community to in fact initiate “a specialised court, backed by the United Nations, to investigate and prosecute Russia’s crime of aggression” against a sovereign state.[176] Demands for a special tribunal to investigate Russia for the “crime of aggression” against Ukraine have also been backed by senior UK politicians from across the political divide.[177]  A draft resolution is circulating at the United Nations in New York for a Nuremberg-style tribunal to hold the Russian leadership accountable for crimes of aggression in Ukraine amid signs that US opposition to the proposal may be softening. The question is whether there are enough votes supporting the resolution at the U.N.’s General Assembly:[178]

“The international criminal court has already started investigating war crimes in Ukraine, but Ukraine’s leadership argues that the ICC is hampered in that while it can try those charged with individual war crimes, it cannot prosecute the Kremlin leadership over the broader crime of aggression since Russia is not a signatory to the relevant statute.

Van Schaack [the US ambassador for global criminal justice] … said the US had not taken a firm position on a special tribunal. However, she believed there was merit in holding trials in absentia of Russians accused of war crimes if it was not possible to extradite them.”

The act of aggression is today acknowledged as the most serious form of illicit recourse to force. Within the international order … aggression appears to be the most serious crime that could be perpetrated, undermining the very existence of the State, its territorial integrity, and as such, the core principles of international law.

– The Practical Guide to Humanitarian Law[179]

Conclusion

War crimes and crimes against humanity are international crimes of such magnitude that they shock the conscience of all of humanity. The atrocity crimes we are witnessing in Ukraine recall previous Russian atrocities in Georgia, Chechnya, and Syria that made use of unlawful weapons and tactics (including rape, murder, torture, mass graves, and terror used against the civilian population), including the commission of indiscriminate strikes, the dropping of unguided bombs and cluster munitions on civilian areas, and the targeting of critical civilian energy infrastructure, schools, shelters, apartment buildings, shopping centers, ambulances, hospitals and health care facilities.[180] 

Impunity for such war crimes and atrocities undermines the rule of law and destroys the social fabric of society. 

The links between justice and peace are strong. Properly pursued, accountability for atrocity crimes can serve not only as a strong deterrent, it is also key to successful reconciliation processes and the consolidation of peace in post-conflict societies.[181]

There is no statute of limitations on war crimes, and beyond cases against individual soldiers and officers in the field who themselves carry out war crimes, if determined appropriate, it is possible to hold senior military and political officials like Putin accountable. However, prosecution of such senior officials will require sustained political will and strong leadership by world leaders and policymakers.

European Commission president, Ursula von der Leyen, has rightly called [Putin’s horrific atrocities and illegal brutality and violence] ‘acts of pure terror’ and ‘war crimes’.

– New York Times[182]

The rule of law and accountability is of fundamental importance for a just, peaceful and secure society.

Authoritarian leaders and governments have long attacked the rule of law, seeking to undermine accountability and weaken the capacity of the international system of justice to constrain the behaviour of authoritarian powers.^[183]  And Russia under Putin is clearly stating that it no longer feels the need to respect or comply with international law regarding its political and foreign policy agendas, and that includes the rules of war.^[184]

The history of the 1930s reveals what happens when nations around the world look inward, supporting appeasement as opposed to accountability for the criminal actions of a totalitarian regime. The fundamental danger of Putin’s war of aggression, war crimes and terror against Ukraine is that it opens the door to further expansion and war by Russia – including by other authoritarian states of like mind – and violation of international law and foundational values of freedom, security, sovereignty, a peaceful society, and jus ad bellum.

It is important that we not lose sight of this larger story and great danger: Russia’s dictator is asserting to the world that “might is right” and demanding that he be allowed to pursue his agenda of anarchy taking and destroying whatever he wants, at will and by force and without accountability. Putin is not simply at war with Ukraine, but with the rule of law, justice and our global foundations supporting international peace, security and political stability.

Unfortunately, history has repeatedly encountered dark hours when politics – illegal use of force and war crimes, appeasement, etc. – subdues the rule of law,[185] and in worst-case scenarios (such as the two world wars) the international system and its institutions have crumbled.

And once lost, justice and a peaceful society is difficult to reinstate.[186]

Perhaps you and I have lived too long with this miracle to properly be appreciative. Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. And those in world history who have known freedom and then lost it have never known it again.

– Ronald Reagan, 40^th U.S. President[187]

However, the rule of law and our national and international institutions are not helpless: “The center can hold—because we are the center”. Citizens of democracies and freedom “can refuse to accept the threats of” dictators and autocratic regimes like Putin and Russia.[188] But the rule of law and our freedoms and our democratic institutions will only work in our defence if our political leaders, public officials, policymakers, business and legal leaders, academics, independent media, and citizens across the world speak out and stand for the rule of law, justice, and accountability. To fight to uphold and strengthen the world’s legal guardrails and institutions.

A unified response by like-minded nations, leaders and policymakers must take affirmative steps to reclaim the mantle of global leadership, and strongly support and strengthen the International Criminal Court, the rule of law, and important principle of accountability. The maintenance, development and promotion of the rule of law is of fundamental importance for a just, peaceful and secure society. As noted by Tom Bingham in his celebrated book The Rule of Law, “in a world divided by differences of nationality, race, colour, religion and wealth, the rule of law is one of the greatest unifying factors, perhaps the greatest… It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large”.[189]

By supporting the [International Criminal] Court, the countries that have joined the Rome Statute system have taken a stand against those who, in the past, would have had no one to answer to after committing widespread, systematic international crimes. The ICC calls on all countries to join the fight against impunity, so that perpetrators of such crimes are punished, and to help prevent future occurrences of these crimes.

– International Criminal Court[190]

Today, more than ever, we need leaders of conviction and courage to make bold statements, set bold objectives and model a bold way forward – protecting the International Criminal Court and rule of law, and inspiring a shared vision of independence and impartiality for our institutions and system of justice.

Showing the flag, if you will, for civilization and freedom and accountability, reassuring and building trust that there are still boundaries that will be defended.[191]

Eric Sigurdson

Endnotes:

---

[1] Eric Schmidt and Robert Work, How to Stop the Next World War, The Atlantic, December 5, 2022.

[2] Olaf Scholz, The Global Zeitenwende: How to Avoid a New Cold War in a Multipolar Era, Foreign Affairs, January-February 2023.

[3] Eric Schmidt and Robert Work, How to Stop the Next World War, The Atlantic, December 5, 2022; Olaf Scholz, The Global Zeitenwende: How to Avoid a New Cold War in a Multipolar Era, Foreign Affairs, January-February 2023.

[4] Editorial Board, Someday, Vladimir Putin is going to have to talk about ending his war in Ukraine. That day is getting closer, Globe and Mail, October 13, 2022. See, Peter Dickinson, NATO, Nazis, Satanists: Putin is running out of excuses for his imperial war, Atlantic Council, November 8, 2022.

[5] Con Coughlin, This is how Vladimir Putin’s dismal rule ends, The Telegraph, November 24, 2022. Also see, Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022.

[6] Tom Nichols, Zelensky Knows the Clock Is Ticking, Atlantic, December 20, 2022; Editorial Board, Someday, Vladimir Putin is going to have to talk about ending his war in Ukraine. That day is getting closer, Globe and Mail, October 13, 2022.

[7] Report of the Independent International Commission on Ukraine, United Nations Human Rights: Office of the High Commissioner (ohchr.org), October 18, 2022; Killings of Civilians: Summary Executions and Attacks on Individual Civilians in Kyiv, Chernihiv, and Sumy Regions in the Context of the Russian Federation’s Armed Attack Against Ukraine, Office of the United Nations High Commissioner for Human Rights, December 2022; Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022. Also see: Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation: 24 February – 15 May 2022, United Nations Human Rights: Office of the High Commissioner, June 29, 2022; War crimes have been committed in Ukraine conflict, top UN human rights inquiry reveals, UN News (news.un.org), September 23, 2022; Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 51^st session of the Human Rights Council, Delivered by Erik Mose (Chair of the Commission of Inquiry on Ukraine), United Nations Human Rights: Office of the High Commissioner, September 23, 2022.

[8] Walter Russell Mead, It’s Time to Prepare for Ukrainian Peace, Wall Street Journal, December 12, 2022.

[9] Keir Giles, Russia has shouted about escalation long enough, CNN, December 20, 2022; Stephanie van den Berg, Explainer – When are attacks on civilian infrastructure war crimes?, Reuters, December 16, 2022:

“Russia’s attacks on Ukraine’s civilian infrastructure, including energy facilities, have been described as possible war crimes by the office of the United Nations High Commissioner for Human Rights and Amnesty International. …

The Geneva conventions and additional protocols shaped by international courts say that parties involved in a military conflict must distinguish between “civilian objects and military objectives” and that attacks on civilian objects are forbidden.

This prohibition is also codified in the Rome Statute of the International Criminal Court (ICC), which earlier this year opened an investigation into possible war crimes in Ukraine.

That seems clear-cut, but some infrastructure owned and used by civilians can also be a military objective. Military objectives are defined as “those objects which by their nature, location, purpose or use make an effective contribution to military action” and whose destruction or capture “offers a definite military advantage”. …

Nigel Povoas, lead prosecutor for a team of international experts assisting Kyiv war crimes investigators, told Reuters that Russian attacks in the past two months have ‘focused on eliminating infrastructure crucial to the means of civilian survival such as heat, water, power and medical facilities’. … [T]he scale and the intensity of the attacks can additionally amount to them being considered as ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’.

This is forbidden under international humanitarian law and was confirmed as a war crime by rulings of the U.N. tribunal for the former Yugoslavia relating to the siege of Sarajevo.”

[10] Matt Murphy, Ukraine war: Putin meets generals as Russian missiles pound cities, BBC News, December 17, 2022. Also see, Stephanie van den Berg, Explainer – When are attacks on civilian infrastructure war crimes?, Reuters, December 16, 2022.

[11] Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court (icc-cpi.int), March 2, 2022; Aubrey Allegretti, ICC launches war crimes investigation over Russian invasion of Ukraine, Guardian, March 3, 2022; Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, EuroNews, October 13, 2022.

[12] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020; Understanding the International Criminal Court, Published by the International Criminal Court, 2020. See, Canada and the International Criminal Court, Government of Canada (International.gc.ca); Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009; Mark Galeotti, Putin’s new strategy to win the propaganda war over Ukraine invasion, The Sunday Times, December 10, 2022.

[13] Benjamin Ferencz, Law, not war: A Nuremberg trial prosecutor on why we need the ICC, Maclean’s, November 8, 2018; Facing Political Attacks, Limited Budget, International Criminal Court Needs Strong Backing to Ensure Justice for Atrocity Crimes, President Tells General Assembly, United Nations (un.org), October 29, 2018.

[14] Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009; David Bosco, The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?, Michigan State Journal of International Law, Vol. 19, Issue 2, 2011; Stefano Marinelli, The Approach to Deterrence in the Practice of the International Criminal Court, International Law Blog, April 6, 2017.

[15] Framework of Analysis for Atrocity Crimes – A tool for prevention, United Nations (un.org), 2014. Note: Crimes of Aggression were added in 2018. See, Anna Khalfaoui, Mass Atrocities: Definition and Relationship with Development, Peace, Justice and Strong Institutions, February 18, 2020 (“Mass atrocities consist of extreme violence inflicted on a large scale or in a deliberate manner, particularly on civilians and non-combatants, by State or non-State actors. Mass atrocities encompass the international crimes of genocide, crimes against humanity, war crimes, and aggression”.); Assembly activates Court’s jurisdiction over crime of aggression, International Criminal Court (icc-cpi.int), December 15, 2017; The Crime of Aggression: From 17 July 2018, the International Criminal Court will be able to prosecute leaders responsible for waging aggressive war – with conditions, Coalition for the International Criminal Court (coalitionforthicc.org); Jeff Neal, The International Criminal Court: Explaining war crimes investigations, Harvard Law Today (hls.harvard.edu), March 4, 2022; Carsten Stahn, International Crimes, Cambridge.org, December 2018; Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security, December 19, 2017:

“The International Criminal Court’s Assembly of States Parties agreed late last week that the ICC can now prosecute crimes of aggression, making it the fourth crime (after war crimes, crimes against humanity, and genocide) to fall within the Court’s jurisdiction. The decision will become effective on July 17, 2018.”

[16] Benjamin Ferencz, Law, not war: A Nuremberg trial prosecutor on why we need the ICC, Maclean’s, November 8, 2018; Facing Political Attacks, Limited Budget, International Criminal Court Needs Strong Backing to Ensure Justice for Atrocity Crimes, President Tells General Assembly, United Nations (un.org), October 29, 2018.

[17] Arch Puddington, Breaking Down Democracy – Goals, Strategies, and Methods of Modern Authoritarians, Freedom House, June 2017.

[18] Nasredeen Abdulbari, Attacks on the International Criminal Court are Attacks on War Crimes Victims, Harvard Human Rights Journal, March 4, 2019.

[19] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[20] Benjamin Ferencz, Law, not war: A Nuremberg trial prosecutor on why we need the ICC, Maclean’s, November 8, 2018.

[21] Editorial Board, Someday, Vladimir Putin is going to have to talk about ending his war in Ukraine. That day is getting closer, Globe and Mail, October 13, 2022; Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, EuroNews, October 13, 2022; Nicholas Kristof, I Went of Ukraine, and I Saw a Resolve That We Should Learn From, New York Times, November 16, 2022.

[22] Editorial Board, Someday, Vladimir Putin is going to have to talk about ending his war in Ukraine. That day is getting closer, Globe and Mail, October 13, 2022. See, Peter Dickinson, NATO, Nazis, Satanists: Putin is running out of excuses for his imperial war, Atlantic Council, November 8, 2022.

[23] National Security Strategy, The White House (Biden-Harris Administration), Washington, United States of America (whitehouse.com), October 2022.

[24] Josh Rogin, Putin’s war crimes victims are joining forces – and they want him behind bars, Washington Post, October 20, 2022; Report of the Independent International Commission on Ukraine, United Nations Human Rights: Office of the High Commissioner (ohchr.org), October 18, 2022. Also see: Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation: 24 February – 15 May 2022, United Nations Human Rights: Office of the High Commissioner, June 29, 2022; War crimes have been committed in Ukraine conflict, top UN human rights inquiry reveals, UN News (news.un.org), September 23, 2022; Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 51^st session of the Human Rights Council, Delivered by Erik Mose (Chair of the Commission of Inquiry on Ukraine), United Nations Human Rights: Office of the High Commissioner, September 23, 2022; Killings of Civilians: Summary Executions and Attacks on Individual Civilians in Kyiv, Chernihiv, and Sumy Regions in the Context of the Russian Federation’s Armed Attack Against Ukraine, Office of the United Nations High Commissioner for Human Rights, December 2022; Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022.

[25] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[26] Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009; David Bosco, The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?, Michigan State Journal of International Law, Vol. 19, Issue 2, 2011; Stefano Marinelli, The Approach to Deterrence in the Practice of the International Criminal Court, International Law Blog, April 6, 2017. Also see, Brendan Cole, Russian TV Pundit Admits Elites are Worried About Repercussions After War, Newsweek, November 29, 2022; Kate Nicholson, How Badly Is the Ukraine War Going for Vladimir Putin?, Huffington Post, November 11, 2022.

[27] Joint Statement in Support of the International Criminal Court, Government of Canada (international.gc.ca).

[28] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020

[29] Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, EuroNews, October 13, 2022; Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court (icc-cpi.int), March 2, 2022.

[30] Alexander Khara, Putin’s Ukraine genocide is rooted in Russian impunity for Soviet crimes, Atlantic Council, August 16, 2022.

[31] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[32] Aubrey Allegretti, ICC launches war crimes investigation over Russian invasion of Ukraine, Guardian, March 3, 2022.

[33] The Challenges We Face, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, March 8, 2007. Also see, Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020; Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social injustice in the 21^st century, Sigurdson Post, March 26, 2020.

[34] Ronald Reagan, First Inaugural Address (governors.library.ca.gov), 33^rd Governor of California, Republican 1967-1975, Delivered January 5, 1967.

[35] Markus Schreiber, Nobel Peace Prize winners blast Putin’s invasion of Ukraine, Washington Post, December 10, 2022; Time to take responsibility, Nobel Lecture given by Nobel Peace Prize Laureate 2022 Center for Civil Liberties, delivered by Oleksandra Matviichuk, The Nobel Prize (nobelprize.org), Oslo, Sweden, December 10, 2022.

[36] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[37] What is the Rule of Law, United Nations and the Rule of Law, United Nations (un.org). Also see, Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[38] What is the Rule of Law, United Nations and the Rule of Law, United Nations (un.org). Also see, Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[39] What is the Rule of Law, United Nations and the Rule of Law, United Nations (un.org).

[40] Jared Gans, Zelensky named Time magazine Person of the Year, The Hill, December 7, 2022. Also see, Simon Shuster, Time 2022 Person of the Year: Volodymyr Zelensky, Time Magazine, December 7, 2022; Vinay Menon, Volodymyr Zelensky is not just Time’s Person of the Year – he is a leader for the ages, Toronto Star, December 7, 2022.

[41] Dominic Casciani, What is a war crime and could Putin be prosecuted over Ukraine?, BBC News, July 7, 2022; Lorne Cook, European Union accuse Russia of ‘war crimes’ in Ukraine, but unlikely to impose new sanctions, PBS.org, March 21, 2022; Daniel Boffey and Dan Sabbagh, Vladimir Putin accused of war crimes as school and theatre are hit in Ukraine, Guardian, March 17, 2022; Nahal Toosi and Quint Forgey, U.S. formally accuses Russian military of committing war crimes in Ukraine, Politico, March 23, 2022; Catherine Gegout, The ICC is investigating war crimes in Ukraine – could Putin be indicted?, The Conversation, March 7, 2022; Lexi Lonas, Canada’s Parliament votes to call Putin’s war a ‘genocide’, The Hill, April 27, 2022; Natalie Obiko Person, Canada tells Putin’s technocrats they’re liable for war crimes, National Post, July 16, 2022; Tonda MacCharles, Putin will pay for ‘war crimes he’s committed in Ukraine’, Justin Trudeau says, Toronto Star, March 9, 2022.

[42] Brendan Cole, Russian TV Pundit Admits Elites are Worried About Repercussions After War, Newsweek, November 29, 2022; Briefing With Ambassador-at-Large for Global Criminal Justice Beth Van Schaack on Justice and Accountability for Russia’s Atrocities in Ukraine, U.S. Department of State (state.gov), November 21, 2022. Also see, Alyssa Ashdown and Stephanie Ashe, Stanford Law’s Beth Van Schaack Appointed as U.S. Ambassador-at-Large for Global Criminal Justice, Stanford Law School (law.stanford.edu), March 23, 2022.

[43] Thomas Moller-Nielsen, NATO Parliamentary Committee labels Russia a ‘terrorist state’, The Brussels Times, November 22, 2022; Sarthak Gupta, NATO deems Russia as ‘terrorist state’, calls for support for Ukraine, Jurist, November 21, 2022; Council of Europe declares Russia a ‘terrorist’ regime, EUobserver (euobserver.com), October 13, 2022.

[44] Sarthak Gupta, NATO deems Russia as ‘terrorist state’, calls for support for Ukraine, Jurist, November 21, 2022.

[45] Sinead Baker, EU declares Russia a ‘state sponsor of terrorism’, a move it hopes could make it easier to put Putin on trial, Business Insider, November 23, 2022; European Parliament declares Russia a state sponsor of terrorism, Reuters, November 23, 2022; European Parliament declares Russia to be a state sponsor of terrorism, News European Parliament (europarl.europa.eu), November 23, 2022. Also see, Sarthak Gupta, NATO deems Russia as ‘terrorist state’, calls for support for Ukraine, Jurist, November 21, 2022; Thomas Moller-Nielsen, NATO Parliamentary Committee labels Russia a ‘terrorist state’, The Brussels Times, November 22, 2022.

[46] Allan Woods, Is Vladimir Putin running a ‘terrorist state’? Why what we call Russia right now matters, Toronto Star, November 25, 2022.

[47] Vinay Menon, Volodymyr Zelenskyy is not just Time’s Person of the Year – he is a leader for the ages, Toronto Star, December 7, 2022.

[48] Note: The point is not to be pro- or anti-negotiation. The point is to set the conditions for negotiations, should they come about, that lead to a resolution that reflects international law in maintaining a sovereign, independent, sustainable Ukraine, and a Russia that foregoes waging war against its neighbors on behalf of imperial ambitions to recreate, more or less, the Soviet empire.

[49] Ruslan Suleymanov, The Putin regime’s façade begins to crack, International Politics and Society (isp-journal.eu), November 18, 2022. Also see, Russia risks becoming ungovernable and descending into chaos, The Economist, November 18, 2022.

[50] Joris Van Bladel, The Unprofessional Russian Soldier, Egmont – Royal Institute for International Relations (egmontinstitute.be), May 20, 2022.

[51] Pavel Baev, Time for the West to think about how to engage with defeated Russia, Brookings, November 15, 2022. Also see, Gideon Rachman, The Ukraine war has reached a turning point, Financial Times, September 12, 2022; Andriy Zagorodnyuk, Battle of Kherson: Russian retreat confirms Putin is losing the war, Atlantic Council, November 10, 2022; Jim Garamone, Russia Suffers ‘Catastrophic Strategic Disaster’ in Ukraine, U.S. Department of Defense, November 9, 2022; Rafael Loss, How to defeat Russia and prevent Armageddon with one weird trick, European Council on Foreign Relations, November 10, 2022.

[52] Tom Nichols, Russia’s Depraved Decadence, The Atlantic, January 3, 2023. Also see, Joris Van Bladel, The Unprofessional Russian Soldier, Egmont – Royal Institute for International Relations (egmontinstitute.be), May 20, 2022.

[53] Pavel Baev, Time for the West to think about how to engage with defeated Russia, Brookings, November 15, 2022. Also see, Gideon Rachman, The Ukraine war has reached a turning point, Financial Times, September 12, 2022; Andriy Zagorodnyuk, Battle of Kherson: Russian retreat confirms Putin is losing the war, Atlantic Council, November 10, 2022; Jim Garamone, Russia Suffers ‘Catastrophic Strategic Disaster’ in Ukraine, U.S. Department of Defense, November 9, 2022; Rafael Loss, How to defeat Russia and prevent Armageddon with one weird trick, European Council on Foreign Relations, November 10, 2022.

[54] Christopher Sabatini (editor), Reclaiming Human Rights in a Changing World Order, Chatham House/Brookings Institution Press, October 2022.

[55] Christopher Sabatini (editor), Reclaiming Human Rights in a Changing World Order, Chatham House/Brookings Institution Press, October 2022. Also see, Francis O’Donnell, The international community must prepare for a post-Putin Russia, Atlantic Council, November 7, 2022; Kathryn Stoner, Russia Resurrected: Its Power and Purpose in a New Global Order, Oxford University Press, 2021; Timothy Frye, Weak Strongman: The Limits of Power in Putin’s Russia, Princeton University Press, 2021; Celeste Wallander, How the Putin Regime Really Works, Journal of Diplomacy, Vol. 32, Issue 3, 2021.

[56] Eliot Cohen, Putin’s Regime Faces the Fate of His Kerch Strait Bridge, The Atlantic, October 9, 2022; Ruslan Suleymanov, The Putin regime’s façade begins to crack, International Politics and Society (isp-journal.eu), November 18, 2022. Also see, Russia risks becoming ungovernable and descending into chaos, The Economist, November 18, 2022; Vladislav Zubok, The longer the war in Ukraine continues, the likelier a Russian collapse grows, Globe and Mail, October 27, 2022; Editorial, The Guardian view on Putin’s power games: fake democracy, Guardian, March 11, 2020; David Bezmozgis, In Putin’s Russia, where democracy is a thinly veiled fiction, people are voting with their feet, Globe and Mail, September 30, 2022; Brian Klaas, Putin Didn’t Think He Would Fool Anyone, Atlantic, September 29, 2022: “Such is the modus operandi of dictators in the modern era, using the trappings and language of democracy to justify autocracy … justify … tyranny with democracy theater”.

[57] John McLaughlin, Putin might lose the war. What would that look like for Russia, Ukraine and the world?, Grid, October 10, 2022; Yuval Noah Harari, Why Vladimir Putin has already lost this war, Guardian, February 28, 2022.

[58] Jonathan Sweet and Mark Toth, Putin’s swan song: ‘Cri-Me-A River’?, The Hill, November 17, 2022; Timothy Ash, It’s Costing Peanuts for the US to Defeat Russia, Center for European Policy Analysis (cepa.org), November 18, 2022.

[59] Paul Kirby, Why did Russia invade Ukraine and has Putin’s war failed?, BBC News, November 16, 2022 (updated).

[60] Ruslan Suleymanov, The Putin regime’s façade begins to crack, International Politics and Society (isp-journal.eu), November 18, 2022. Also see, Russia risks becoming ungovernable and descending into chaos, The Economist, November 18, 2022; Gideon Rachman, The Ukraine war has reached a turning point, Financial Times, September 12, 2022.

[61] Russia risks becoming ungovernable and descending into chaos, The Economist, November 18, 2022.

[62] Greg Miller, Shane Harris, Paul Sonne, and Catherine Belton, Putin confronted by insider over Ukraine war, U.S. intelligence finds, Washington Post, October 7, 2022; Anna Commander, Map Shows Ukraine Defeating Russia, With 50 Percent of Territory Reclaimed, Newsweek, November 12, 2022; Paul Kirby, Why did Russia invade Ukraine and has Putin’s war failed?, BBC News, November 16, 2022 (updated).

[63] Kathryn Stoner, Is Putin vulnerable? One autocracy in Russia may lead to another, Washington Post, September 27, 2022.

[64] Simon Johnson, The next stage of Russia’s secular decline comes in 2023, Los Angeles Times, January 3, 2023.

[65] Vladislav Zubok, The longer the war in Ukraine continues, the likelier a Russian collapse grows, Globe and Mail, October 27, 2022. See, Thomas Grove, As Russian Army Falters in Ukraine, Paramilitary Leader Close to Putin Flexes Power, Wall Street Journal, November 12, 2022.

[66] Paul McLeary and Alexander Ward, Russia’s invasion of Ukraine could start a race for nukes, Austin says, Politico, November 19, 2022; Murray Brewster, Ukraine war offers preview of a world of ‘tyranny and turmoil’, says Pentagon chief, CBC News, November 19, 2022. Also see, Yaroslav Trofimov and Matthew Luxmoore, Ukraine Says Western Allies Shouldn’t Fear Russia Falling Apart, Wall Street Journal, December 8, 2022.

[67] Walter Russell Mead, It’s Time to Prepare for Ukrainian Peace, Wall Street Journal, December 12, 2022.

[68] Russia/Ukraine: Invasion of Ukraine is an act of aggression and human rights catastrophe, Amnesty International (amnesty.org), March 1, 2022.

[69] Vladimir Putin is dragging the world back to a bloodier time, The Economist, October 24, 2022; Yuval Noah Harari, Yuval Noah Harari argues that what’s at stake in Ukraine is the direction of human history, The Economist, February 9, 2022. Also see, Sinead Baker, Putin denies planning to revive the Russian empire after declaring that Ukraine is not a real country and sending troops in, Business Insider, February 22, 2022; Doug Saunders, Vladimir Putin’s invasion of Ukraine is entirely about what a country and its people are permitted to be, Globe and Mail, February 26, 2022; Peter Dickinson, NATO, Nazis, Satanists: Putin is running out of excuses for his imperial war, Atlantic Council, November 8, 2022.

[70] Doug Saunders, Vladimir Putin’s invasion of Ukraine is entirely about what a country and its people are permitted to be, Globe and Mail, February 26, 2022.

[71] Joint Statement on Six Months of Russia’s Full-Scale Invasion of Ukraine (56 countries including EU), Delegation of the European Union to the United Nations in New York (eeas.europa.eu), August 24, 2022.

[72] Tom Ginsburg, Article 2(4) and Authoritarian International Law, American Journal of International Law (AJIL) Unbound (Cambridge University Press), Vol. 116, 2022; Vladimir Putin is dragging the world back to a bloodier time, The Economist, October 24, 2022; Paul Kirby, Why has Russia invaded Ukraine and what does Putin want?, BBC News, May 9, 2022; Jonathan Masters, Ukraine: Conflict at the Crossroads of Europe and Russia, Council on Foreign Relations, October 11, 2022.

[73] Tom Ginsburg, Article 2(4) and Authoritarian International Law, American Journal of International Law (AJIL) Unbound (Cambridge University Press), Vol. 116, 2022.

[74] Eugene Rumer and Richard Sokolsky, Grand Illusions: The Impact of Misperceptions About Russia on U.S. Policy, Carnegie Endowment for International Peace, June 30, 2021.

[75] Nathan Hodge, In Russia’s military, a culture of brutality runs deep, CNN, April 4, 2022; Sofia Sereda, War Crimes Are Part of Russia’s War Culture, Says Ukrainian Nobel Peace Prize Winner, Radio Free Europe, November 24, 2022; Andrew Exum, The Russian Military Has Descended Into Inhumanity, The Atlantic, April 6, 2022. Also see, Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022.

[76] Brian Klass, The Conventional Wisdom About War Crimes is Wrong: Ordinary people, when seduced by violent ideologies, can be extraordinarily brutal, Atlantic, December 6, 2022; Jonathan Leader Maynard, Ideology and Mass Killing: The Radicalized Security Politics of Genocides and Deadly Atrocities, Oxford University Press, 2022.

[77] Andrew Exum, The Russian Military Has Descended Into Inhumanity, The Atlantic, April 6, 2022.

[78] Rpbert Litwak, Russia’s Nuclear Threats Recast Cold War Dangers: The ‘Delicate Balance of Terror’ Revisited, Wilson Center, May 3, 2022. See, Peter Dickinson, NATO, Nazis, Satanists: Putin is running out of excuses for his imperial war, Atlantic Council, November 8, 2022.

[79] Francis O’Donnell, The international community must prepare for a post-Putin Russia, Atlantic Council, November 7, 2022.

[80] Con Coughlin, This is how Vladimir Putin’s dismal rule ends, The Telegraph, November 24, 2022.

[81] Claire Parker, Russia has incited genocide in Ukraine, independent experts conclude, Washington Post, May 27, 2022; An Independent Legal Analysis of the Russian Federation’s Breaches of the Genocide Convention in Ukraine and the Duty to Prevent, New Lines Institute for Strategy and Policy, and Raoul Wallenberg Centre for Human Rights, May 2022.

[82] The laws of war in a nutshell, International Committee of the Red Cross (icrc.org), October 19, 2016; Russia, Ukraine & International Law: On Occupation, Armed Conflict and Human Rights, Human Rights Watch, February 23, 2022; J.F.R. Boddens Hosang, Rules of Engagement and the International Law of Military Operations, Oxford University Press, 2020; War Crimes, UN, Office on Genocide Prevention and the Responsibility to Protect, UN.org:

“Even though the prohibition of certain behavior in the conduct of armed conflict can be traced back many centuries, the concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when international humanitarian law, also known as the law of armed conflict, was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. Several other related treaties have been adopted since then. In contrast, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. Both Hague Law and Geneva Law identify several of the violations of its norms, though not all, as war crimes. However there is no one single document in international law that codifies all war crimes. Lists of war crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.

The 1949 Geneva Conventions have been ratified by all Member States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules contained in these treaties have been considered as part of customary law and, as such, are binding on all States (and other parties to the conflict), whether or not States have ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the protection afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.”

[83] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022; Michael Walzer, Just and Unjust Wars (5^th edition), Basic Books, 2015; J.F.R. Boddens Hosang, Rules of Engagement and the International Law of Military Operations, Oxford University Press, 2020. But see, Imogen Foulkes, Geneva Conventions Laws of war ‘need fixing’, BBC.com, December 8, 2015.

[84] Associated Press, Is Vladimir Putin a war criminal, and who decides?, Guardian, March 17, 2022.

[85] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022. Also see, J.F.R. Boddens Hosang, Rules of Engagement and the International Law of Military Operations, Oxford University Press, 2020.

[86] John Becker, The Continuing Relevance of Article 2(4): A Consideration of the Status of the U.N. Charter’s Limitation of the Use of Force, Denver Journal of International Law & Policy, Vol. 32, No. 3, 2004; Tom Ginsburg, Article 2(4) and Authoritarian International Law, American Journal of International Law (AJIL) Unbound (Cambridge University Press), Vol. 116, 2022.

[87] Vladimir Putin is dragging the world back to a bloodier time, The Economist, October 24, 2022.

[88] John Bellinger III, How Russia’s Invasion of Ukraine Violates International Law: Russia’s invasion of Ukraine violates the UN Charter and cannot be justified under international law as an act of self-defense or humanitarian intervention, Council on Foreign Relations, February 28, 2022.

[89] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[90] Editorial Board, The arguments against supporting Ukraine, Globe and Mail, October 25, 2022.

[91] Editorial Board, The arguments against supporting Ukraine, Globe and Mail, October 25, 2022.

[92] Rick Noack, U.N. court orders Russia to halt its invasion of Ukraine, in a largely symbolic ruling, Washington Post, March 16, 2022. Also see, Julian Borger, UN international court of justice orders Russia to halt invasion of Ukraine, Guardian, March 16, 2022; International Court orders Russia to ‘immediately suspend’ military operations in Ukraine, UN News (news.un.org), March 16, 2022.

[93] Julian Borger, UN international court of justice orders Russia to halt invasion of Ukraine, Guardian, March 16, 2022; International Court orders Russia to ‘immediately suspend’ military operations in Ukraine, UN News (news.un.org), March 16, 2022.

[94] Kremlin, As Expected, Rejects ICJ Ruling to Halt Ukraine Invasion, RadioFreeEurope (rferl.org), March 17, 2022;

[95] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[96] Council of Europe declares Russia a ‘terrorist’ regime, EUobserver (euobserver.com), October 13, 2022.

[97] Paul Dibb, The geopolitical implications of Russia’s invasion of Ukraine, Australian Strategic Policy Institute, September 7, 2022.

[98] Eliot Cohen, The Words About Ukraine That Americans Need to Hear: Wars are won by deeds – but also persuasive moral arguments, Atlantic, October 22, 2022.

[99] Note: In total, the U.S. has provide Ukraine with over $28 billion in military aid, over $15 billion in financial aid, and nearly $10 billion in humanitarian aid, according to Statista [see: Anna Commander, Map Shows Ukraine Defeating Russia, With 50 Percent of Territory Reclaimed, Newsweek, November 12, 2022]. So far this year, Canada has committed $3.4 billion in assistance to Ukraine [see: Aaron D’Andrea, Canada sanctions 23 Russians, announces $500M military aid package for Ukraine, Global News, November 14, 2022].

[100] Vladimir Putin is dragging the world back to a bloodier time, The Economist, October 24, 2022:

“Western countries have not sent their forces to fight in Ukraine. But they are supplying Ukraine with their most advanced conventional weapons, training its soldiers, funding its government, and attempting to cripple Mr Putin’s invasion with sanctions. On the 21st September, in a speech to the UN General Assembly, President Joe Biden put it bluntly: ‘If nations can pursue their imperial ambitions without consequences, then we put at risk everything this very institution stands for’.”

[101] Eliot Cohen, The Words About Ukraine That Americans Need to Hear: Wars are won by deeds – but also persuasive moral arguments, Atlantic, October 22, 2022. Also see, William Galston, As Winter Nears, the West May Save Putin, Wall Street Journal, October 25, 2022; Liz Sly, European allies worry U.S. could dial back support for Ukraine, Washington Post, October 26, 2022; Greg Sargent, Why Putin hopes for a GOP victory, as explained by a top Russia expert, Washington Post, October 24, 2022; Lawrence Martin, The U.S. midterm elections are trending nicely – for Vladimir Putin, Globe and Mail, October 26, 2022; Shannon Vavra and Scott Bixby, The U.S. Blunder that Could Hand Putin Victory in Ukraine, Daily Beast, October 28,, 2022; Ja’han Jones, Deleted tweet proves the GOP’s Putin propaganda knows no bounds, MSNBC, October 3, 2022; David Leonhardt, The G.O.P.’s ‘Putin Wing’, New York Times, April 7, 2022; Jerome Viala-Gaudefroy, Ukraine war: while most Americans express outrage, Putin’s spell continues to hang over Republicans, Conversation, April 14, 2022; Eugene Scott, McCarthy signals GOP-led House likely to oppose more aid to Ukraine, Washington Post, October 18, 2022; James Kirchick, How the GOP became the party of Putin, Brookings, July 27, 2017; Alaric Dearment, This is What a Fifth Column Looks Like: Putin showed his true self; So did Carlson and Trump, Above the Law, February 24, 2022; Phillips Payson O’Brien, What Trump and Musk Don’t Get About Russia’s Nuclear Threats, Atlantic, December 21, 2022.

[102] Olaf Scholz, The Global Zeitenwende: How to Avoid a New Cold War in a Multipolar Era, Foreign Affairs, January-February 2023.

[103] How Putin’s war is causing global instability: Other strongmen must learn the right lessons, Economist, November 18, 2022.

[104] Rishi Sunak (UK Prime Minister), Five ways to prise open Vladimer Putin’s grip on the world economy, The Telegraph, November 13, 2022. Also see, Charlie Molony, Sergey Lavrov’s ‘hospital admission for heart problems’ is fake news, says Russia, The Times (thetimes.co.uk), November 14, 2022.

[105] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[106] Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: Aggression, 2015, available online http://guide-humanitarian-law.org.

[107]  Andrii Smyrnov (deputy head of the Office of the President of Ukraine), We Need a Special Tribunal to Put Putin and His Regime on Trial, Time, September 23, 2023.

[108] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[109] James Griffiths, G20 issues ‘strong and clear’ condemnation of Russia’s invasion of Ukraine, Globe and Mail, November 16, 2022. Also see, Adam Schreck and Foster Klug, G-20 leaders end summit condemning Russia despite divisions, BNN Bloomberg, November 16, 2022:

“The use of the words ‘most members’ was a telling sign of the divisions, as was an acknowledgement that ‘there were other views and different assessments” and that the G-20 is “not the forum to resolve security issues’.

Even so, the statement’s use of language from a March U.N. resolution that deplored ‘in the strongest terms the aggression by the Russian Federation against Ukraine’ and demanded ‘its complete and unconditional withdrawal’ from Ukrainian territory was a ‘big breakthrough’, according to John Kirton, director of the G20 Research Group.

‘Here the G-20 left no doubt about who it knew had started the war and how it should end’, he said in an interview. He noted an ‘active shift’ by China and India, which joined the ‘democratic side of the great immediate geopolitical divide’.”

[110] Dominic Casciani, What is a war crime and could Putin be prosecuted over Ukraine?, BBC News, March 10, 2022; Weapons, International Committee of the Red Cross, November 30, 2011; Joanne Lu, The ‘Rules of War’ Are Being Broken. What Exactly Are They?, NPR.org, June 28, 2018; J.F.R. Boddens Hosang, Rules of Engagement and the International Law of Military Operations, Oxford University Press, 2020.

[111] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022. Also see, J.F.R. Boddens Hosang, Rules of Engagement and the International Law of Military Operations, Oxford University Press, 2020.

[112] Joanne Lu, The ‘Rules of War’ Are Being Broken. What Exactly Are They?, NPR.org, June 28, 2018.

[113] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[114] Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, Euronews, October 13, 2022.

[115] Editorial Board, Document the War Crimes in Ukraine, New York Times, April 6, 2022.

[116]  Andrii Smyrnov (deputy head of the Office of the President of Ukraine), We Need a Special Tribunal to Put Putin and His Regime on Trial, Time, September 23, 2023.

[117] Editorial Board, Document the War Crimes in Ukraine, New York Times, April 6, 2022. See, International Military Tribunal (Nuremberg), Judgement of 1 October 1946, re The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August ,1946 to 1st October, 1946).

[118] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[119] Kieran O’Meara, Understanding the Illegality of Russia’s Invasion, E-International Relations, March 13, 2022.

[120] Q&A: How Putin Could Be Put on Trial for the Crime of Aggression, Open Society: Justice Initiative (justiceinitiative.org), May 9, 2022; Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security, December 19, 2017; Understanding the International Criminal Court, International Criminal Court, 2020; Alice Speri, The Mother Crime: Will Putin Face Prosecution for the Crime of Aggression in Ukraine?, The Intercept, October 8, 2022; Conditions for action by the ICC: The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, CrimeOfAggression.info).

[121] Alice Speri, The Mother Crime: Will Putin Face Prosecution for the Crime of Aggression in Ukraine?, The Intercept, October 8, 2022. Also see, Thomas Walkom, Be skeptical of claims made by all sides in a war – that’s the lesson from the Polish missile crisis, Toronto Star, November 18, 2022 (“The larger truth is that in war, both sides have an incentive to make stuff up. Don’t take Russian claims as gospel truth. But at the same time, don’t assume that everything the Ukrainian government and its allies say is 100 per cent factually correct”.)

[122] Ronald Sievert, Putin is morally and criminally responsible for atrocities in Ukraine, The Hill, April 10, 2022.  Also see, Aubrey Allegretti, ICC launches war crimes investigation over Russian invasion of Ukraine, Guardian, March 3, 2022.

[123] Alice Speri, The Mother Crime: Will Putin Face Prosecution for the Crime of Aggression in Ukraine?, The Intercept, October 8, 2022.

[124] Editorial Board, Document the War Crimes in Ukraine, New York Times, April 6, 2022. Also see: Dominic Casciani, What is a war crime and could Putin be prosecuted over Ukraine?, BBC News, July 7, 2022; Lorne Cook, European Union accuse Russia of ‘war crimes’ in Ukraine, but unlikely to impose new sanctions, PBS.org, March 21, 2022; Daniel Boffey and Dan Sabbagh, Vladimir Putin accused of war crimes as school and theatre are hit in Ukraine, Guardian, March 17, 2022; Nahal Toosi and Quint Forgey, U.S. formally accuses Russian military of committing war crimes in Ukraine, Politico, March 23, 2022; Catherine Gegout, The ICC is investigating war crimes in Ukraine – could Putin be indicted?, The Conversation, March 7, 2022; Lexi Lonas, Canada’s Parliament votes to call Putin’s war a ‘genocide’, The Hill, April 27, 2022; Natalie Obiko Person, Canada tells Putin’s technocrats they’re liable for war crimes, National Post, July 16, 2022; Tonda MacCharles, Putin will pay for ‘war crimes he’s committed in Ukraine’, Justin Trudeau says, Toronto Star, March 9, 2022; Peter Dickinson, NATO, Nazis, Satanists: Putin is running out of excuses for his imperial war, Atlantic Council, November 8, 2022; Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022; Shannon Crawford, Ukraine opens probe amid international concern over possible war crime video, ABC News, November 22, 2022:

“Following the emergence of video suggesting Ukrainian fighters may have committed a war crime by firing on nearly a dozen surrendering Russian soldiers at close range, the country’s prosecutor general on Tuesday announced an investigation into the incident — although Kyiv has maintained its troops were responding to an attempted ambush.

The Kremlin, meanwhile, claims the brief video clips, which were circulated widely online, show the troops carrying out an execution and is calling for an international investigation.

Ukraine’s announcement comes after the U.S. State Department’s top war crimes adviser said Monday that U.S. officials were aware of the footage, and underscored that both Moscow and Kyiv are bound to follow the same international law on the battlefield.

‘We’re obviously tracking that quite closely’, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said of the incident, which took place earlier this month in the Luhansk region of Ukraine.

‘It’s really important to emphasize that the laws of war apply to all parties equally, both the aggressor state and the defender state’, she continued. ‘But when it comes to the war in Ukraine, that’s really where the equivalency ends. When we’re looking at the sheer scale of criminality exhibited by Russian forces, it’s enormous compared to the allegations that we have seen against Ukrainian forces’.

That assessment is supported by multiple international efforts to document war crimes and other atrocities committed in the course of the conflict. The United Nations Under-Secretary-General for Political and Peacebuilding Affairs Rosemary A. DiCarlo reported in September that the body’s independent commission was ‘struck by the large number of executions and other violations carried out by Russian forces’ while investigators documented only two incidents of Ukrainian fighters mistreated Russian soldiers.

Van Schaack said how each country’s government handles allegations against its service members is also vastly different.

‘Russia inevitably responds with propaganda, denial, myths and disinformation — whereas Ukrainian authorities have generally acknowledged abuses and have denounced, and have pledged to investigate them’, she said. ‘And so we would urge Ukraine to continue to abide by international obligations in this conflict. And we continue to reiterate the importance that all parties to the conflict must abide by international law or face the consequences’.”

[125] Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, Euronews, October 13, 2022.

[126] Antony Blinken (Secretary of State), War Crimes by Russia’s Forces in Ukraine, U.S. Department of State (state.gov), March 23, 2022.

[127] Stephanie van den Berg, Explainer – When are attacks on civilian infrastructure war crimes?, Reuters, December 16, 2022.

[128] Jake Epstein, Russian forces committed horrific war crimes in Ukraine, such as rape and torture, and sometimes even made the families of victims watch, UN investigators find, Business Insider, September 23, 2022. Also see, Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022.

[129] Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation: 24 February – 15 May 2022, United Nations Human Rights: Office of the High Commissioner, June 29, 2022; War crimes have been committed in Ukraine conflict, top UN human rights inquiry reveals, UN News (news.un.org), September 23, 2022; Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 51^st session of the Human Rights Council, Delivered by Erik Mose (Chair of the Commission of Inquiry on Ukraine), United Nations Human Rights: Office of the High Commissioner, September 23, 2022; Report of the Independent International Commission on Ukraine, United Nations Human Rights: Office of the High Commissioner (ohchr.org), October 18, 2022; Killings of Civilians: Summary Executions and Attacks on Individual Civilians in Kyiv, Chernihiv, and Sumy Regions in the Context of the Russian Federation’s Armed Attack Against Ukraine, Office of the United Nations High Commissioner for Human Rights, December 2022.

[130] Report of the Independent International Commission on Ukraine, United Nations Human Rights: Office of the High Commissioner (ohchr.org), October 18, 2022; Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 51^st session of the Human Rights Council, Delivered by Erik Mose (Chair of the Commission of Inquiry on Ukraine), United Nations Human Rights: Office of the High Commissioner, September 23, 2022; Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation: 24 February – 15 May 2022, United Nations Human Rights: Office of the High Commissioner, June 29, 2022; War crimes have been committed in Ukraine conflict, top UN human rights inquiry reveals, UN News (news.un.org), September 23, 2022; Killings of Civilians: Summary Executions and Attacks on Individual Civilians in Kyiv, Chernihiv, and Sumy Regions in the Context of the Russian Federation’s Armed Attack Against Ukraine, Office of the United Nations High Commissioner for Human Rights, December 2022; Daniel Victor and Ivan Nechepurenko, Russia Repeatedly Strikes Ukraine’s Civilians. There’s Always an Excuse, New York Times, July 15, 2022; Countering disinformation with facts – Russian invasion of Ukraine, Government of Canada (international.gc.ca); Ukraine: Unlawful Russian Attacks in Kharkiv, Human Rights Watch, August 16, 2022; Matthew Luxmoore and Isabel Coles, Kyiv Hit by Drone Attacks as Russia Targets Infrastructure: Moscow is attacking Ukraine’s energy facilities and other strategic sites as winter approaches, Wall Street Journal, October 17, 2022; Trudy Rubin, Vladimir Putin is the unabashed lord of war crimes in the 21^st century, The Inquirer, June 29, 2022; Jake Epstein, Russian forces committed horrific war crimes in Ukraine, such as rape and torture, and sometimes even made the families of victims watch, UN investigators find, Business Insider, September 23, 2022; Nick Cumming-Bruce, U.N. experts find that war crimes have been committed in Ukraine, New York Times, September 23, 2022; Countering disinformation with facts – Russian invasion of Ukraine, Government of Canada, international.gc.ca.; Zach Schonfeld, Russia committed ‘vast majority’ of alleged war crimes in Ukraine: UN report, The Hill, October 18, 2022; Max Hunder and Jonathan Landay, Russia destroys power and water infrastructure across Ukraine, Reuters, October 18, 2022; Michael Biesecker, Erika Kinetz, and Beatrice Dupuv, War Crimes Watch: Russia’s onslaught on Ukrainian Hospitals, AP News, March 25, 2022; Miriam Berger, Russia killed 441 civilians extrajudicially in Kyiv area early in war, U.N. finds, Washington Post, December 7, 2022. Also see, Eleanor Sly, Russian army using rape as a ‘deliberate’ strategy in Ukraine, claims UN envoy, Independent, October 14, 2022; Philip Wang, Tim Lister, Josh Pennington, and Heather Chen, Russia using rape as ‘military strategy’ in Ukraine: UN envoy, CTV News, October 15, 2022; Joshua Zitser, Russian soldiers are supplied with Viagra to rape Ukrainian women and ‘dehumanize’ them, claims UN official, Business Insider, October 16, 2022; Amanda Macias, UN report details horrifying Ukrainian accounts of rape, torture and executions by Russian troops, CNBC, October 28, 2022; Anna Commander, Russia Deporting Ukraine Children in ‘Deliberate Depopulation’ Effort: ISW, Newsweek, November 27, 2022; Karolina Hird, Riley Bailey, Grace Mappes, Angela Howard, and Frederick Kagan, Russian Offensive Campaign Assessment, Institute for the Study of War, September 26, 2022; Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022; Michael Clarke, History tells us that Putin’s terror tactics in Ukraine will fail, The Sunday Times, October 22, 2022; James Rosen, Doomed to failure: Russia failed to heed lessons from history before invading Ukraine, USA Today, October 23, 2022.

[131] Reuters, Putin’s threats have nuclear experts watching closely, CBC News, October 4, 2022; Isabel Van Brugen, Putin ‘Willing to do Anything’ To Avoid Defeat in Ukraine, Newsweek, October 18, 2022; Leon Panetta, If Putin Uses Nukes in Ukraine, the U.S. Must Respond with Military Force, Politico, October 12, 2022; Helen Cooper, Julian Barnes and Eric Schmitt, Russian Military Leaders Discussed Use of Nuclear Weapons, US Officials Say, New York Times, November 2, 2022; Karoun Demirjian and Shane Harris, Russian military leaders’ talk of nuclear attack rattles U.S. calculus, Washington Post, November 2, 2022.

[132] Alexander Gabuev, Putin’s Doomsday Scenario: The West cannot assume that the Russian leader will be a rational actor on nukes if he sees his nation and regime under existential threat, Atlantic, November 11, 2022. Also see, Mona Yacoubian, Is Russia Escalating to De-Escalate?, United States Institute for Peace (usip.org), October 5, 2022; Ellen Mitchell, Russia’s nuclear weapons threat raises Western fears, The Hill, February 27, 2022.

[133] Editorial Board, Ukraine needs emergency help to keep its people warm, Financial Times, November 22, 2022.

[134] Kenneth Roth, Building a War-Crimes Case Against Vladimir Putin, Globe and Mail, April 27, 2022. Also see, Peter Dickinson, Genocide in Ukraine: Putin just gave his tacit approval for more war crimes, Atlantic Council, April 21, 2022. Also see, Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022.

[135] Brendan Cole, Vladimir Putin’s ‘Terror’ Tactics Will Not Help His War, Newsweek, October 18, 2022.

[136] Adam Satariano, Paul Mozur, and Aaron Krolik, An Alternate Reality: How Russia’s State TV Spins the Ukraine War, New York Times, December 15, 2022.

[137] Dominic Lawson, Putin’s cheerleaders are the darkest of cynics, The Sunday Times, October 30, 2022:

“Sometimes a chap just gets carried away and calls for children to be drowned or burnt alive. Could happen to anyone. That, at least, is the explanation of Anton Krasovsky, the former head of the Russian language wing of the Kremlin-financed RT network. In a broadcast on that channel on October 20, he said the way to treat Ukrainian children who complained about being occupied by Russia was ‘just drown kids like that … they should be thrown in a river with a strong current [or] just stuff them in a spruce house and burn it’.

This stayed on the channel’s website for several days before the Ukrainian-American Julia Davis put it up, with English subtitles, on her invaluable Twitter feed. The Russian foreign ministry spokeswoman, Maria Zakharova, attempted to defend Krasovsky, describing him as a ‘fantastically talented’ commentator of ‘obvious and truthful’ information. But by October 24, when it was clear this was not the optimal way to win the propaganda war, Krasovsky was suspended by RT’s chief, Margarita Simonyan. He apologised (she accepted it) and explained: ‘I’m embarrassed that I somehow didn’t see the boundary. About children. But it happens like this: you’re in the middle of a broadcast and you get carried away’.

Presumably it was the same overenthusiasm which in that broadcast had led him to respond to the charges (or what he called ‘lies’) that Russian soldiers had been raping Ukrainian women: ‘Those grannies would gladly give the money they’ve saved up for their funeral to be raped by Russian soldiers’.

This was not a live broadcast. It had been recorded and edited before it went out. Krasovsky was the head of programming, so presumably all those involved in the production must have felt the boss knew best.”

[138] Anders Anglesey, Russia State TV Pundit Says Either ‘We Win or There Will Be WWIII”, Newsweek, December 4, 2022; Justin Ling, Russia Is Ramping Up Nuclear War Propaganda, Wired, November 4, 2022; Anders Anglesey, Russian State TV Host Says West Will be ‘Reduced to Ashes’ if War is Lost, Newsweek, December 18, 2022.

[139] Alex Shprintsen, Terence McKenna, and Anastasiya Ivanova, While Putin denies war crimes in Ukraine, a Russian soldier confesses to executing a civilian, CBC News, November 3, 2020; Yousur Al-Hlou, Masha Froliak, Evan Hill, Malachy Browne, and David Botti, New Evidence Shows How Russian Soldiers Executed Men in Bucha, New York Times, May 19, 2022; Stewart Bell, Russian soldier says he was ordered to shoot civilians, Global News, July 7, 2022; Will Stewart,  ‘Walk them out, shoot them’: Russian soldier tells how he was ordered to execute innocent civilians in Ukraine while officers looted washing machines and loaded them onto trucks home, Daily Mail, August 17, 2022; Erica Kinetz, Oleksandr Stashevskyi, and Vasilisa Stepanenko, How Russian Soldiers Ran a ‘Cleansing” Operation in Bucha, PBS.org, November 3, 2022.

[140] Trudy Rubin, Vladimir Putin is the unabashed lord of war crimes in the 21^st century, The Inquirer, June 29, 2022. Also see, Steve Rosenberg, Lavrov: Russia is not squeaky clean and not ashamed, BBC News, June 17, 2022.

[141] Dominic Casciani, What is a war crime and could Putin be prosecuted over Ukraine?, BBC News, July 7, 2022; Lorne Cook, European Union accuse Russia of ‘war crimes’ in Ukraine, but unlikely to impose new sanctions, PBS.org, March 21, 2022; Daniel Boffey and Dan Sabbagh, Vladimir Putin accused of war crimes as school and theatre are hit in Ukraine, Guardian, March 17, 2022; Nahal Toosi and Quint Forgey, U.S. formally accuses Russian military of committing war crimes in Ukraine, Politico, March 23, 2022; Catherine Gegout, The ICC is investigating war crimes in Ukraine – could Putin be indicted?, The Conversation, March 7, 2022; Lexi Lonas, Canada’s Parliament votes to call Putin’s war a ‘genocide’, The Hill, April 27, 2022; Natalie Obiko Person, Canada tells Putin’s technocrats they’re liable for war crimes, National Post, July 16, 2022; Tonda MacCharles, Putin will pay for ‘war crimes he’s committed in Ukraine’, Justin Trudeau says, Toronto Star, March 9, 2022.

[142] The International Criminal Court’s investigation in Ukraine, Strategic Comments, International Institute for Strategic Studies (iiss.org), Vol. 28, Issue 2,  May 2022; Ellen Ioanes, Here’s what the ICC can actually do about Putin’s war crimes, Vox, April 9, 2022; Alberto Nardelli, Jennifer Jacobs, and Alex Wickham, Russians May Face First Hague War Crimes Case by End of Year, Bloomberg, July 20, 2022; David Smith, How could Vladimir Putin be prosecuted for war crimes, Guardian, April 5, 2022.

[143] Lisa Morjé, A Look at the Laws of War – and How Russia is Violating Them, United States Institute of Peace, September 29, 2022.

[144] See: Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.

[145] Courts and Tribunals: International Court of Justice, International Criminal Court, etal, Dag Hammarskjold Library, UN International Law Documentation (research.un.org); Structure of the ICC, International Criminal Court Project (ABA-ICC.org); International Court of Justice: How the Court Works, International Court of Justice (icj-cij.org); Dominic Casciani, What is a war crime and could Putin be prosecuted over Ukraine?, BBC News, March 10, 2022; Difference Between ICJ from International Criminal Court and ad hoc international criminal tribunals?, Advocatetanmoy Law Library: Policy Research and Legal Database, November 22, 2019; Jeff Neal, The International Criminal Court: Explaining war crimes investigations, Harvard Law Today (hls.harvard.edu), March 4, 2022; Comparison between International Court of Justice and International Criminal Court, Secure IAS, October 4, 2018; Claire Klobucista, The Role of the International Criminal Court, Council on Foreign Relations, March 28, 2022 (updated); Claus Kreb, Aggression (Chapter 13), in Robin Geib and Nils Melzer (editors), The Oxford Handbook of the International Law of Global Security, Oxford University Press, 2021; Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: International Court of Justice (ICJ), 2015, available online http://guide-humanitarian-law.org.  .

[146] Jeff Neal, The International Criminal Court: Explaining war crimes investigations, Harvard Law Today (hls.harvard.edu), March 4, 2022.

[147] Masha Gessen, The Prosecution of Russian War Crimes in Ukraine: Twenty-five thousand cases have been identified thus far – what does justice look like for the victims of Russia’s atrocities?, New Yorker, August 1, 2022.

[148] Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, Harvard International Law Journal, Vol. 60, No. 1, Winter 2019.

[149] Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018. Also see generally, About, International Criminal Court (icc-cpi.int); How 1989 brought an end to the Cold War, BBC News, December 27, 2009.

[150] Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009.

[151] About: Towards stability and lasting peace, International Criminal Court (icc-cpi.int).

[152] Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009; Phillipe Le Corre, China’s Rise as a Geoeconomic Influencer: Four European Case Studies, Carnegie Endowment (for International Peace), October 15, 2018; Celia Belin and Ted Reinert, The eclipse of the European Union’s global influence, Brookings, April 8, 2019.Note: Crimes of Aggression were added in 2018 – See, Anna Khalfaoui, Mass Atrocities: Definition and Relationship with Development, Peace, Justice and Strong Institutions, February 18, 2020 (“Mass atrocities consist of extreme violence inflicted on a large scale or in a deliberate manner, particularly on civilians and non-combatants, by State or non-State actors. Mass atrocities encompass the international crimes of genocide, crimes against humanity, war crimes, and aggression”.); Assembly activates Court’s jurisdiction over crime of aggression, International Criminal Court (icc-cpi.int), December 15, 2017; The Crime of Aggression: From 17 July 2018, the International Criminal Court will be able to prosecute leaders responsible for waging aggressive ward – with conditions, Coalition for the International Criminal Court (coalitionforthicc.org); Carsten Stahn, International Crimes, Cambridge.org, December 2018; Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security, December 19, 2017:

“The International Criminal Court’s Assembly of States Parties agreed late last week that the ICC can now prosecute crimes of aggression, making it the fourth crime (after war crimes, crimes against humanity, and genocide) to fall within the Court’s jurisdiction. The decision will become effective on July 17, 2018.”

[153] Elizabeth Evenson, Donald Trump’s Attack on the ICC Shows His Contempt for the Global Rule of Law, Human Rights Watch, July 6, 2020.

[154] Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018; About: How the Court Works, International Criminal Court (icc-cpi.int); About the ICC, The ABA’s ICC Project (aba-icc.org).

[155] Joint Statement in Support of the International Criminal Court, Government of Canada (international.gc.ca).

[156] Erna Paris, International Criminal Court: A fight that Canada must lead, Globe and Mail, November 8, 2016.

[157] Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, Vintage Canada, 2009; Celia Belin and Ted Reinert, The eclipse of the European Union’s global influence, Brookings, April 8, 2019; Michael Abramowitz, The Struggle Comes Home” Attacks on Democracy in the United States, Freedom House, 2019. Also see, Paul Sonne, Threat from nuclear weapons and missiles has grown since Trump entered office, Washington Post, October 12, 2020; Eric Brewer, Toward a More Proliferated World? The Geopolitical Forces that Will Shape the Spread of Nuclear Weapons, Center for Strategic and International Studies, September 20, 2020.

[158] Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018; Jennifer Trahan, The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices, Criminal Law Forum, Vol. 24, No. 4, 2013; About: How the Court Works, International Criminal Court (icc-cpi.int); About the ICC, The ABA’s ICC Project (aba-icc.org).

[159] Thomas Edsall, The Savage Injustice of Trump’s Military Pardons, New York Times, December 4, 2019.

[160] How the Court Works: The crimes, International Criminal Court (icc-cpi.int); Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018; About the ICC, The ABA’s ICC Project (aba-icc.org); Assembly activates Court’s jurisdiction over crime of aggression, International Criminal Court (icc-cpi.int), December 15, 2017; The Crime of Aggression: From 17 July 2018, the International Criminal Court will be able to prosecute leaders responsible for waging aggressive ward – with conditions, Coalition for the International Criminal Court (coalitionforthicc.org); War Crimes and Crimes Against Humanity: War Crimes Program, Department of Justice, Government of Canada (justice.gc.ca); Jeff Neal, The International Criminal Court: Explaining war crimes investigations, Harvard Law Today (hls.harvard.edu), March 4, 2022; Claire Klobucista, The Role of the International Criminal Court, Council on Foreign Relations, March 28, 2022 (updated); Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security, December 19, 2017.

[161] Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: Aggression, 2015, available online http://guide-humanitarian-law.org.

[162] Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018. Also see, About: How the Court Works, International Criminal Court (icc-cpi.int).

[163] Understanding the International Criminal Court, Published by the International Criminal Court, 2020.

[164] Jelena Pejic, Accountability for international crimes: From conjecture to reality, International Review of the Red Cross, Vol. 84, Issue 845, March 2002.

[165] Understanding the International Criminal Court, Published by the International Criminal Court, 2020.

[166] Understanding the International Criminal Court, International Criminal Court, Public Information and Documentation Section, 2018. Also see generally, About: How the Court Works, International Criminal Court (icc-cpi.int).

[167] Aubrey Allegretti, ICC launches war crimes investigation over Russian invasion of Ukraine, Guardian, March 3, 2022; Shona Murray, Putin’s position would not give him ‘immunity’ from war crime prosecution, says ICC chief prosecutor, EuroNews, October 13, 2022; Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court (icc-cpi.int), March 2, 2022.

[168] John Bellinger III, How Russia’s Invasion of Ukraine Violates International Law: Russia’s invasion of Ukraine violates the UN Charter and cannot be justified under international law as an act of self-defense or humanitarian intervention, Council on Foreign Relations, February 28, 2022. Also see, Aubrey Allegretti, ICC launches war crimes investigation over Russian invasion of Ukraine, Guardian, March 3, 2022:

“A war crimes investigation has been launched into Russia’s invasion of Ukraine after an unprecedented number of countries backed the move ….

Karim Khan, the chief prosecutor for the international criminal court (ICC), said he would begin work ‘as rapidly as possible’ to look for possible crimes against humanity or genocide committed in Ukraine.

The referral for investigation by 39 countries – including the UK – will shave several months off the process because it allows Khan to bypass the need to seek the approval of the court in The Hague.”

[169] Russia/Ukraine: Invasion of Ukraine is an act of aggression and human rights catastrophe, Amnesty International (amnesty.org), March 1, 2022. Also see, Jennifer Trahan, The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices, Criminal Law Forum, Vol. 24, No. 4, 2013.

[170] Q&A: How Putin Could Be Put on Trial for the Crime of Aggression, Open Society: Justice Initiative (justiceinitiative.org), May 9, 2022; Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security, December 19, 2017; Understanding the International Criminal Court, International Criminal Court, 2020; Alice Speri, The Mother Crime: Will Putin Face Prosecution for the Crime of Aggression in Ukraine?, The Intercept, October 8, 2022; Conditions for action by the ICC: The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, CrimeOfAggression.info):

“The Review Conference also decided under what conditions the ICC will be allowed to investigate and prosecute crimes of aggression. It is a complex legal regime contained in two articles to the Rome Statute (15 bis and 15 ter), which reflects a compromise and differs in several respects from the regime in place for the three other core crimes (genocide, crimes against humanity, war crimes).

Put as simply as possible, as of 17 July 2018 the ICC can investigate and prosecute crimes of aggression provided that:

• the Security Council refers a situation to the ICC (then no further conditions apply); or
• a State Party refers a situation or the Prosecutor starts an investigation on his or her own initiative, the States involved in the situation are parties to the Rome Statute, the presumed aggressor State Party has not opted out of the Court’s jurisdiction over the crime of aggression. …

No jurisdiction over Non-States Parties: In concrete terms, this means that the Court does not have jurisdiction over crimes of aggression involving States that are not parties to the Rome Statute. It does not matter whether such a non-State Party was an aggressor, or the victim of aggression. Accountability and deterrent effect are thus limited to the circle of States Parties only – which can also be seen as an incentive for Non-States Parties to join the Statute in its 2010 version.

No jurisdiction over States Parties that have opted-out of aggression: Furthermore, to ensure a regime that is fully consent-based, parties to the Rome Statute have the possibility of opting out of the Court’s jurisdiction over the crime of aggression, despite the fact that by ratifying the 1998 version of the Rome Statute they already accepted the Court’s jurisdiction over the yet-to-be-defined crime of aggression (Article 12(1) Rome Statute). States Parties can do so by lodging a declaration with the Registrar, and they are encouraged to consider withdrawing such a declaration within three years.”

[171] Ellen Ioanes, Here’s what the ICC can actually do about Putin’s war crimes, Vox, April 9, 2022.

[172] Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: Aggression, 2015, available online http://guide-humanitarian-law.org.; John Becker, The Continuing Relevance of Article 2(4): A Consideration of the Status of the U.N. Charter’s Limitation of the Use of Force, Denver Journal of International Law & Policy, Vol. 32, No. 3, 2004; Tom Ginsburg, Article 2(4) and Authoritarian International Law, American Journal of International Law (AJIL) Unbound (Cambridge University Press), Vol. 116, 2022.

[173] Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: Aggression, 2015, available online http://guide-humanitarian-law.org.

[174] Michael Savage and Emma Graham-Harrison, Russia must face tribunal for ‘crime of aggression’ in Ukraine, say UK cross-party leaders, Guardian, January 8, 2023.

[175] Alice Speri, The Mother Crime: Will Putin Face Prosecution for the Crime of Aggression in Ukraine?, The Intercept, October 8, 2022; Q&A: How Putin Could Be Put on Trial for the Crime of Aggression, Open Society: Justice Initiative (justiceinitiative.org), May 9, 2022.

[176] Emily Rauhalla, E.U. proposes special tribunal to investigate Russian crimes in Ukraine, Washington Post, November 30, 2022.

[177] Michael Savage and Emma Graham-Harrison, Russia must face tribunal for ‘crime of aggression’ in Ukraine, say UK cross-party leaders, Guardian, January 8, 2023.

[178] Patrick Wintour, Russia war crimes draft resolution being circulated at the UN, Guardian, December 4, 2022.

[179] Francoise Bouchet-Saulnier (translated by Laura Brav and Camille Michel), The Practical Guide to Humanitarian Law (3^rd edition), Rowman & Littlefield Publishers, 2013; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law: Aggression, 2015, available online http://guide-humanitarian-law.org.

[180] How to Hold Russia Accountable for War Crimes in Ukraine, Open Society Foundations, July 2022. Also see, Report of the Independent International Commission on Ukraine, United Nations Human Rights: Office of the High Commissioner (ohchr.org), October 18, 2022; Killings of Civilians: Summary Executions and Attacks on Individual Civilians in Kyiv, Chernihiv, and Sumy Regions in the Context of the Russian Federation’s Armed Attack Against Ukraine, Office of the United Nations High Commissioner for Human Rights, December 2022; Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit that Killed Dozens in Bucha, New York Times, December 22, 2022. Also see: Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation: 24 February – 15 May 2022, United Nations Human Rights: Office of the High Commissioner, June 29, 2022; War crimes have been committed in Ukraine conflict, top UN human rights inquiry reveals, UN News (news.un.org), September 23, 2022; Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 51^st session of the Human Rights Council, Delivered by Erik Mose (Chair of the Commission of Inquiry on Ukraine), United Nations Human Rights: Office of the High Commissioner, September 23, 2022; Walter Russell Mead, It’s Time to Prepare for Ukrainian Peace, Wall Street Journal, December 12, 2022; Joseph Felter, Faring poorly in Ukraine, Putin has little to lose by committing war crimes, Los Angeles Times, March 24, 2022.

[181] Accountability, Office on Genocide Prevention and the Responsibility to Protect, United Nations (un.org).

[182] Bret Stephens, Putin is Starting to Do What Won Him a War 7 Years Ago, New York Times, November 1, 2022.

[183] Nasredeen Abdulbari, Attacks on the International Criminal Court are Attacks on War Crimes Victims, Harvard Human Rights Journal, March 4, 2019.

[184] Christopher Sabatini (editor), Reclaiming Human Rights in a Changing World Order, Chatham House/Brookings Institution Press, October 2022.

[185] Xu Xiaobing, How the US, under Trump, has led the charge to weaken international rule of law, South China Morning Post, June 30, 2020.

[186] The Challenges We Face, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, March 8, 2007. Also see, Nick Cohen, One law for the rich, no law for the poor, The Guardian, March 11, 2012. Also see, Eric Sigurdson, The Decline of the Rule of Law: Experiencing the Unimaginable in Western Society – the impact of economic and social injustice in the 21^st century, Sigurdson Post, March 26, 2020.

[187] Ronald Reagan, First Inaugural Address (governors.library.ca.gov), 33^rd Governor of California, Republican 1967-1975, Delivered January 5, 1967.

[188] Tom Nichols, Trump, Putin, and the Assault of Anarchy, The Atlantic, October 3, 2022.

[189] Tom Bingham, The Rule of Law, Penguin Books, 2010.

[190] About: The fight against impunity continues, International Criminal Court (icc-cpi.int).

[191] Eric Sigurdson, The International Criminal Court and the Rule of Law: A Case for Renewed Commitment – legal guardrails, war crimes, and the politics of impunity, Sigurdson Post, October 15, 2020.