One Year Of Putin’s War In Ukraine

On February 24, 2022, Putin unleashed a military attack on Ukraine, without any provocation and without any credible justification. And while on February 24, 2023, the world marks the year of the war, Putin’s attack on Ukraine is much older, with the annexation of Crimea and “fighting between Russian-supported separatists and Ukrainian government forces has continued in the Donbas for the last eight years.” In early November 2021, Russia began building up military forces along the borders of Ukraine, deploying over 100,000 Russian military personnel and assets in Crimea and in the Voronezh, Kursk and Bryansk regions. Russia further deployed forces to Belarus, among others. In December 2021, U.S. intelligence suggested that Russia was planning an invasion of Ukraine in early 2022. This intelligence turned out to be true and materialized in the “special military operation” on February 24, 2022, as Putin calls it, or in the crime of aggression, as the rest of the world recognizes it.

This aggression was followed by reports of horrific atrocities which continue to this day: thousands of people have been killed, and even more injured. Millions have fled the country and millions are internally displaced. Over the year, the Office of the Prosecutor General of Ukraine recorded over 71,000 crimes perpetrated in Ukraine. This number grows by the day. The acts can meet the legal definition of war crimes and crimes against humanity. Furthermore, there is a growing body of evidence suggesting that the atrocities meet some elements of the crime of genocide in Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide. Think of Bucha. Think of Irpin.

The last year has seen an unprecedented response from States around the world. Over 40 States came together to refer the situation in Ukraine to the International Criminal Court (ICC), the only permanent international tribunal in existence, to look into any past and present allegations of war crimes, crimes against humanity, or genocide committed on any part of the territory of Ukraine by any person from November 21, 2013, onwards. In addition, at least over 18 countries have opened some sort of investigation into the atrocities, in addition to the establishment of the Joint Investigation Team (JIT), a team of prosecutors, police and judges from Lithuania, Poland, Ukraine, Estonia, Latvia and Slovakia to synchronize cross-border investigations and bring prosecutions to a successful conclusion.

While this focus on legal avenues for justice is unprecedented, there is still one crime that waits to be addressed – the crime of aggression. While the ICC has powers to investigate any acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine, it cannot exercise its jurisdiction with regard to the crime of aggression against Ukraine. This is as the act of aggression is committed by Russia, a state that is not a party to the Rome Statute. One option would be for the U.N. Security Council to refer the situation to the ICC. However, such an attempt would have been blocked by Russia, a permanent member of the U.N. Security Council with a veto right.

Shortly after Putin’s attack on Ukraine, several experts, including Rt. Hon Gordon Brown, former Prime Minister of the United Kingdom, world-renowned barristers Baroness Helena Kennedy KC and Professor Philippe Sands KC, and Benjamin Ferencz, former Prosecutor at the Nuremberg Military Tribunal, issued a joint statement calling for the creation of a special tribunal for the punishment of the crime of aggression against Ukraine. One year later, several States are supporting the initiative and moving closer towards the creation of the mechanism. In early February 2023, European Commission announced the establishment of a special office in The Hague, the International Center for the Prosecution of the Crime of Aggression in Ukraine, to coordinate the collection of evidence and join the investigation by the European crime agency Eurojust.

Unfortunately, there are still many skeptics who do not wish to see such a tribunal, predominately driven by self-interest. However, as Aarif Abraham, a barrister from Garden Court North Chambers, says, there is an urgent need for such a tribunal. As he emphasized, such a tribunal for the crime of aggression “is the surest and quickest route to trying the Russian and Belarusian leaders for international crimes. Trying senior leaders for war crimes, crimes against humanity or genocide is notoriously difficult because of the difficulty in linking crimes committed on the ground (by troops) to senior military or political figures who are often well aware of the risk of having crimes attributed to them. It could take many years if not decades although that track must still be pursued.” Furthermore, “such work could deter perpetrators from further aggression. It would, moreover, reinforce the idea – fundamental idea – that the prohibition on the illegal use of force and the crime of aggression is important as is international rule of law. In the Russian context, given its previous legal invasions or interventions in Georgia, Moldova and Ukraine itself – that is important.”

One year into this war, and many more years into the crisis, it is time for the world to stand united and do what is right – what is right for Ukraine, and what is right for the rest of the world – to bring Putin to justice for his attack on Ukraine and send a clear message to any other dictators with similar aspirations.