Ukraine War, March 6, 2022 (I): The civilized nations of the world must set up an equivalent to the Nuremberg Charter (Updated March 7, 2022)

Update
February 7, 2022

It is critically important that the civilized nations of the world make clear that the war crimes and vtrocities that are being committed by Russians in Ukraine shall not go unpunished.

A statement affirming that policy and decision should be drafted and voted on in the United Nations General Assembly. Days should not be lost drafting. The important thing is to approve it now, keeping ourveyes on the tempo of war. A revised and carefully crafted resolution can be presented later.

The resolution should not be watered down to get votes, not even that of China.

It should be put to a vote this week.

At the height of World War II, at the Moscow Conference, a Declaration on Atrocities was adopted, on October 30, 1943, as one of the Moscow Declarations.

The Declaration on Atrocities was signed by the U.S. President Franklin D. Roosevelt, British Prime Minister Winston Churchill and Soviet Premier Joseph Stalin. They noted that “evidence of atrocities, massacres and cold-blooded mass executions which are being perpetrated by Hitlerite forces in many of the countries they have overrun and from which they are now being steadily expelled”. They went on to state that Germans would be sent back to the countries where they had committed their crimes and “judged on the spot by the peoples whom they have outraged”. As for those Germans whose criminal offenses had no particular geographical localization, they would be punished by joint decision of the governments of the Allies.

The Statement on Atrocities was largely drafted by Winston Churchill,[3] and led to the setting up of the European Advisory Commission which drafted the London Charter.

The importance of a General Assembly resolution now, on the prosecution of war crimes and crimes against humanity being committed by Russian soldiers in Ukraine cannot be exaggerated.

Such a resolution would reaffirm the core values of our Civilization, currently under attack by Russia, and serve as a source of inspiration and determination in the continuing struggle to defend the vision of civilization and humanity set forth in the United Nations Charter.

Original article, with updated Dispatches and Articles

Dispatches and Articles

1) “WARNING TO RUSSIAN SOLDIERS ENTERING UKRAINE: Russian soldiers who commit war crimes or crimes against humanity in Ukraine may be subject to trial before the International Criminal Court, and in countries exercising universal jurisdiction; they may never in their lifetimes be able to travel to European and other countries that have ratified the Rome Statute of the ICC, or which exercise universal jurisdiction over such crimes,” The Trenchant Observer, February 12, 2022;

Commentary

The civilized nations of the world should move promptly to draft a modern equivalent of the Nuremberg Charter, and to establish machinery to conduct trials of all Russian officers and soldiers involved in the commission of war crimes, crimes against humanity, and genocide in Ukraine.

Possibly these mechanisms could be set up as an adjunct of the International Criminal Court, which has responsibility for trying individuals. The International Court of Justice (ICJ), a separate court, also located in The Hague, is currently seized with the complaint brought by Ukraine against Russia for the commission of genocide, under the terms of the Genocide Convention to which both states are parties. The ICJ only handles cases between states (nations).

One of the counts of the indictment should be for the commission of Crimes Aainst Peace, one of the principal charges against the main Nazi war criminals at the Nuremberg trials, now referred to as the Crime of Aggression.

While the definition of a “crime of aggression” has been hung up for many decades in highly technical and arcane debates related the the definition of aggression, that Gordian knot can now be untied, for we are now witnessing the ultimate example of a “crime against peace” or a “crime of aggression”.

Now would a good time to separate out a special category of “crimes against peace”, going back to the original Nuremberg formulation, within the broader category of the crime of aggression. The goal would be to decouple the debate about the meaning of aggression from the definition of the clearest and most egregios case, which we are now witnessing with Russia’s invasion of Ukraine.

Those Russian officers and soldiers now committing these crimes in Ukraine need to know, in unambiguous terms, that they will be pursued to the ends of the earth, for as long as they shall live, for the crimes they are committing.

They will be pursued and, whenever possible, arrested and in every civilized country in the world, and either tried there or transferred to an international,trubunal for trial. This could occur potentially even in Russia when it rejoins the community of civilized nations of the world–which is quite possible during their lifetimes. They will be tracked down, arrested, and tried, just as German war criminals have been pursued and tried for the past 75 years.

Russia had a member on the International Military Tribunal in Nuremberg. Its military has experience with Nazi war crimes trials. Russia’s judgevon the Tribunal was a Soviet General.

Russians committing war crimes, crimes against humanity, and crimes of genocide must be informed that the defense of following superior orders is not valid unden international law. Article 33 of the Rome Statute of the International Criminal Court provides as follows:

Article 33
Superior orders…
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

There should not be a single Russia soldier who is unaware of the fact that the siege and bombing of cities, and the bombing and use of artillery and other weapons against civilian populations is unlawful. Every Russian soldier should be bombarded with leaflets in Russian that quote Article 33 of the Rome Statue verbatim, and explain the fact that these crimes have no statute of limitations, and will be prosecuted not only before the ICC or other international tribunals, but also in any country exercising universal jurisdiction, a concept that should be fully explained to each soldier.

The U.S. and other civilized countries should immediately establish an office of War Propaganda to make sure these and other messages get through to Russian soldiers and the Russian population.

We are at war with Russia, and soon, in fact very soon, even the most timorous and fearful will understand that fact.

See,

“Ukraine War, March 5, 2022: The West* is at war with Russia,” The TrenchantbObserver, March 5, 2022.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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