We need to defeat Putin before putting him in the dock
In Ukraine, rivers of spilled innocent blood cry from the earth for justice. Who can provide it? The Council of Europe plans to create a new court specifically to try Russians for 'crimes of aggression' for the invasion of Ukraine.
Britain is backing the new court, with Sir Keir Starmer's long-time friend Philippe Sands taking the lead in lobbying the UK legal establishment.
The moral argument for a Nuremberg-style tribunal to punish those guilty of war crimes is a solid one. When today's murderers, rapists and torturers go unpunished, the potential war criminals of tomorrow are encouraged.
The creation of the special court is expected to be unveiled in Kyiv on May 9th – Europe Day, but also the day on which Russia celebrates its victory over Germany in 1945.
The symbolism of creating an institution designed to bring Russian war criminals to trial on the very anniversary of the final demise of Nazism is powerful.
Except there is one major flaw in Sands' vision. None of the actual accused, from Vladimir Putin down to the soldiers of 76th Guards Air Assault Division accused of massacring civilians in the Kyiv suburb of Bucha in March 2022, will actually be present.
Unlike the Nuremberg trials, after World War Two, next to none of the alleged war criminals are in reach of the court's justice.
Russia, for obvious reasons, has no intention of ever recognising the court, and nor will America – which has also declined to sign up to the jurisdiction of the International Criminal Court (ICC) in the Hague.
Moreover, the new court will not reportedly try Putin, Russian prime minister Mikhail Mishustin or the Russian foreign minister Sergey Lavrov in absentia.
So what, precisely, will the proposed new court actually do that the ICC does not? The difference, in Sands' view, is that the new tribunal should be empowered to examine Russian leaders' culpability in the 'crime of aggression' – a modern version of the principle of 'crimes against peace' pioneered at Nuremberg.
A great and noble idea, doubtless. But setting up a court is not the same thing as bringing justice. The fundamental premise of a fair trial is that the defendants have a chance to make their case before an impartial judge or jury who will weigh the facts without fear or favour.
Even at Nuremberg three of the nineteen senior Nazi defendants were acquitted. If there is no realistic chance of either the accused arguing their own defence, nor of an acquittal, is there any purpose to the proposed tribunal other than political virtue signalling?
The ICC has already issued an arrest warrant against Putin and one of his deputies for the unlawful transfer of Ukrainian children to Russia. The ICC has brought war criminals in the past from Serbia, the Democratic Republic of the Congo, Mali, Libya and Uganda to justice.
There is no reason that Russians should not join the list – if the court manages to get its hands on them. And this is the key point: the war is far from over. Talk of a tribunal is astonishingly premature at this stage.
Ukraine faces a bitter choice between peace and justice. The country's territory has been attacked and dismembered, with little prospect of restitution.
The thousands of Ukrainians who have suffered from Putin's invasion are understandably desperate to punish their aggressor in every way possible.
But setting up a special new court, however noble its intentions, is a fake solution that will offer neither justice nor closure; these things will only come after the war ends.
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