PROSECUTING PUTIN: Marci Shore and Michael MacKay Weigh In on the New Special Tribunal
As news broke that Ukraine's allies endorsed a special tribunal to prosecute Putin and his inner circle beyond scope of ICC, I reached out to Dr. Marci Shore and Dr. Michael MacKay for a reality check
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“The owl of Minerva takes flight only at dusk.”—G W F Hegel
On Friday, I learned about a meeting of Ukraine allies in Lviv, where foreign ministers gathered in support of the creation of a court to target Putin and his inner circle over the invasion of Ukraine. Among the key objectives is to get justice beyond the reach of the ICC warrants.
Two years ago, the International Criminal Court (ICC) issued warrants for the arrest of Putin and his Commissioner for Children’s Rights for the unlawful deportation of children from Ukraine.
Friday’s news about the special tribunal indicates a greater reach — the ability to impose life imprisonment “when justified by the extreme severity of the crime of aggression.”
As EuroNews reported:
A broad coalition of democratic nations has endorsed the formation of a special tribunal to prosecute the crime of aggression against Ukraine, a powerful symbolic gesture marking Europe Day that is set to face formidable challenges to fulfill its mission.
The political approval, which consolidates more than two years of behind-the-scenes work between legal advisors, was sealed on Friday afternoon during a visit by foreign affairs ministers to Lviv, the largest city in western Ukraine.
The occasion gathered envoys from almost 40 European and non-European nations, together with representatives from the EU institutions and the Council of Europe. Ukraine's prime minister, Denys Shmyhal, and foreign minister, Andrii Sybiha, took part.
The most glaring absence was the United States, which was closely involved in the discussions during the Biden administration but changed direction under Donald Trump.
"Every inch of Russia's war has been documented. It leaves no room for doubt in Russia's manifest violation of the UN Charter. It leaves no room for impunity. Russia's aggression will not go unpunished," said High Representative Kaja Kallas.
Ukrainian President Volodymyr Zelenskyy, who addressed the meeting in a video message, said justice was necessary to realise the true meaning of human rights and "make any potential aggressor think twice" before launching an attack.
"We all understand how hard it is to actually bring war criminals to the courtroom. But we've already chosen the path. Russia will be held accountable for this war. This is a moral duty for Europe – and for everyone in the world who values human life," he said…
Unlike war crimes, crimes against humanity and genocide, which apply to individuals who commit the atrocities, the crime of aggression is a leadership crime that probes the people who are ultimately in charge of controlling the aggressor state.
In practice, this will cover the so-called troika – the president, the prime minister and the foreign minister – together with high-ranking military commanders who have overseen the assault on Ukraine's sovereignty and territorial integrity.
Vladimir Putin, the mastermind behind the invasion and the prime promoter of its revisionist narrative, immediately becomes the most wanted target…
Between 20 and 30 Russian officials are estimated to be potential indictees.
Likely targets include Valery Gerasimov, the chief of the general staff of the Russian Armed Forces; Sergey Kobylash, the commander of the Russian Air Force; and Sergei Shoigu, the former minister of defence and current secretary of the Security Council; all of whom are subject to arrest warrants issued by the International Criminal Court (ICC).
The special tribunal is intended to fill the gap left by the ICC, which has competence to prosecute the crime of aggression, but only when the offence is committed by a state party. Russia is not a signatory to the Rome Statute. Additionally, Russia can use its veto at the UN Security Council to block any international litigation.
Like the ICC, the new court is expected to be based in the Hague after the Dutch government expressed interest in hosting the body…
The last time the crime of aggression was brought to justice was during the Nuremberg trials held after World War II…
Russia’s number one export is lies, and I know this news will be buried under a flood of US and Kremlin propaganda. Currently, online attacks are being ratcheted up against French President Emmanuel Macron and Ursula von der Leyen, President of the European Commission. Both are great threats to the terrorist state of Russia.
So I reached out to Dr. Marci Shore and Dr. Michael MacKay, both of whom have a solid grasp on the ongoing war crimes being committed by the Russian invaders. Shore is an intellectual historian and author of The Ukrainian Night: An Intimate History of Revolution, who left her post at Yale to teach at the University of Toronto. Mackay, who has a doctorate in political philosophy from the London School of Economics and Political Science, has been engaged with Ukraine’s civil society since the renewal of independence — working as a university lecturer, the director of an Internet access project and an election observer.
Here are their comments:
Dr. Marci Shore: I'm absolutely in favor of the tribunal, but I won't find it satisfying until Putin and Lavrov and their gang are actually in that courtroom. This is how I felt about the ICC's issuing arrest warrants for Putin and Maria Lvova-Belova — that's great, but I won't find it satisfying until they are actually in The Hague.
I expressed this a year or so ago to Janine di Giovanni, who's heading up the remarkable Reckoning Project, when she gave a talk at Yale. And Janine reminded me (and everyone else in the room) that it's not hopeless, that eventually they did get Milošević. And she makes an important point, of course. But it's hard not to find it maddening that justice always seems to come too late, it's like Hegel's Owl of Minerva, spreading its wings only with the falling of the dusk.
What is infuriating and intolerable about these well-intentioned international institutions (and I'm not an expert on any of them) — be it the United Nations or the ICC — is that no one seems to be able to act in real time to stop the atrocities. The UN just seems to practice ritualistic enactments of its own impotence. . .
Dr. Michael MacKay: I think a special tribunal is better than doing nothing. It covers the crime of aggression, which is an important area of international law that is not covered by the International Criminal Court. The ICC investigates and prosecutes war crimes, crimes against humanity and genocide. One of the reasons the ICC can't handle the crime of aggression is that over the past 80 year the United Nations has failed to define what "aggression" is — even though it is an essential element of the UN Charter.
Putin is charged by the ICC with the systematic deportation and transfer of Ukrainian children to the Russian Federation. That's a war crime. But he can't be charged by the ICC with the crime of invading Ukraine. As I said, a special tribunal to investigate and prosecute Putin with the crime of aggression is better than having nothing.
But establishing a special tribunal without considering first how to defeat Russia and take Putin into custody is pointless. Unfortunately, European leaders are only comfortable talking about war and peace in "reconstruction and reconciliation" terms — the post-1945 framework of understanding. They recoil in horror at the requirement to think about war and peace in active combat terms — the way political-military leadership had the courage to think from 1939 to 1945.
The Nuremberg Trials could only take place after Nazi Germany was defeated and the Nazi concentration camps and death camps were liberated. Putin and Russian leadership are committing the crime of aggression and genocide against the Ukrainian people now. But a tribunal can only be established after fascist Russia is defeated in war and the filtration camps of the rashists in temporarily-occupied Ukraine are liberated.
We have to fight and win the war before we can secure the peace.
Dr. Marci Shore: In regard’s to Michael’s comment about “establishing a special tribunal without considering first how to defeat Russia and take Putin into custody is pointless”…. This is my feeling, too. Perhaps it's not totally pointless if we consider symbolic value, but it still feels like a painfully impotent gesture. It's all in the “Owl of Minerva” spirit — justice comes too late. We need Russia defeated and Putin in custody and the Europeans are moving so maddeningly slowly.
Dr. Michael MacKay: I agree that wisdom comes after folly, even as justice comes after crime.
Hans Frank, a Nazi leader who was governor-general of occupied Poland, ordered the execution of hundreds of thousands of Poles – most of whom were Jews. He was captured by the Americans in May 1945, put on trial before the Nuremberg tribunal, found guilty of war crimes and crimes against humanity, and hanged in October 1946. His execution did not bring back to life any of his murdered victims. It did not bring comfort to the suffering of survivors. It did not bring redemption to anybody. But it was just. And that justice was only possible because of the sacrifices made by millions of people to defeat Nazi Germany and end the Holocaust.
Dr. Marci Shore: I completely agree. There absolutely should be justice, but it still doesn't make anything okay.
I am so grateful, as always, for the expertise of this community, and everything I gain from their insights.
I believe the formation of this special tribunal is a powerful symbol that European leaders can present to their constituencies to explain the necessary sacrifice that all very likely have to face.
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Thank you for informing us about the Tribunal held in Lviv. While it is frustrating that Putin and his enforcers are still acting with perceived and (currently) impunity, it is encouraging to know that at least 40 nations are working to hold Putin and his enforcers to account . I have not yet seen this critical information in any publication other than those linked in your article. I will keep looking in MSM publications. Once again, thank you.