By Kerry Kennedy and Dick Durbin
A full year has passed since Russia launched its war against Ukraine in February 2022.
Let us repeat that: a full year.
As the rest of the world aged and grew, grappled with technological advances, inflation, record-breaking drought, flooding and political shifts, residents of Ukraine have been unable to escape the single, all-encompassing nightmare that, overnight, became their lives.
From Kyiv to Kharkiv to Mariupol, the continued rapes, abductions, murders and torture of civilians fit the exact description of genocide adopted by the United Nations in 1948 as the Genocide Convention — the first international human rights treaty adopted by the U.N. General Assembly after its formation.
As a longtime human rights lawyer and as the U.S. Senate’s majority whip, chair of the Senate Committee on the Judiciary and co-chair of the Senate Ukraine Caucus, we have been outspoken about the necessity for ending the atrocities of this wholly unnecessary war.
Today, though, we are compelled to further strengthen those calls and advocate for a special tribunal to prosecute the crime of aggression. The success of such a tribunal is critically dependent on support from the United States.
Just weeks ago, we enacted changes to U.S. law to enable more support to the International Criminal Court’s Ukraine investigations. We also celebrated the passage of the Justice for Victims of War Crimes Act, legislation that updates the current war crimes statute to enable the prosecution of war criminals in the United States — regardless of the nationality of the victim or perpetrator.
But more not only can be done internationally, it also must be done. The United States is conspicuously absent from a core group of world powers — including Ukraine, the United Kingdom, Finland, Poland and Sweden — dedicated to achieving accountability for aggression through a tribunal.
As our friend, former U.S. Ambassador Bill Taylor, has noted, there is no mechanism for holding Russian and Belarusian leaders accountable for the crime of aggression against Ukraine, despite flagrant violation of the U.N.’s founding principles.
Aggression is a leadership crime, focused on those who design war policies and command forces responsible for carrying out the policies. Ukrainian law, like U.S. law, provides personal immunity for heads of state, thus barring action against Russian leadership through Ukrainian courts. Immunity provisions also are likely to bar prosecution in domestic courts outside Ukraine.
At the international level, the prosecutor of the International Criminal Court is precluded from investigating the crime of aggression. Drafted in 1998, the court’s Rome Statute establishes a permanent tribunal at The Hague with jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
The court is already investigating these first three types of crimes in Ukraine based on Ukraine’s consent to the court’s jurisdiction. But distinct jurisdictional requirements for the crime of aggression prevent the court from prosecuting Russian nationals for aggression because Russia is not a state party to the Rome Statute.
As a result, no venue — domestic or international — exists to prosecute Russian leaders for the crime of aggression.
There are at least two ends that, from political and strategic perspectives, justify seeking an international conviction for Russia’s crime of aggression against Ukraine, nonprofit think tank Institut Montaigne notes.
First is what political scientist Ghassan Salamé calls the “deregulation of force.” It is in the interest of all nations to reverse the trend of the use of force and restore credibility to a founding principle of the U.N. Charter: the prohibition of it.
What’s more, a special tribunal for Ukraine could help reshape public opinion, upending Vladimir Putin’s narrative by serving as a message to Russia’s conscience.
U.S. leadership has been critical to the success of accountability efforts for Ukraine, facilitating the rapid launch of Ukrainian and European investigations. To truly hold Russia accountable for its crimes in Ukraine, however, the U.S. must work to fill the remaining accountability gap by collaborating with partners and allies to establish a special tribunal.
And it must be done while setting aside any fears that the establishment of such a tribunal could set a precedent for the prosecution of U.S. leaders over the invasion of Iraq or similar situations in the future.
The crime of aggression was first prosecuted following World War II in the International Military Tribunal at Nuremberg. “A war of aggression,” the court declared, “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.”
That sentence sums up what this is all about: a moral case for accountability. Every single vile and evil act by Russian troops is fruit of the poisonous tree for the crime of aggression.
Chicago, with its vibrant Ukrainian community, has been at the heart of pitching in to help the war effort — housing, feeding and clothing many of the 14 million Ukrainians displaced by the violence.
Eleanor Roosevelt, who envisioned a system of collective security among nations creating lasting peace, summed it up as she reflected upon American inaction against the Nazis in a 1946 speech. “I have the feeling that we let our consciences realize too late the need of standing up against something that we knew was wrong,” she said. “We have therefore had to avenge it, but we did nothing to prevent it. I hope that in the future, we are going to remember that there can be no compromise at any point with the things that we know are wrong.”
Now is that time.
Kerry Kennedy is president of the advocacy group Robert F. Kennedy Human Rights. U.S. Sen. Dick Durbin of Illinois is the Senate’s majority whip.
Read the original article in the Chicago Tribune here.