By Hans Corell, Irwin Cotler and David Crane

October 13, 2022

The sounds of Wehrmacht jackboots marching into the Rhineland, the Sudetenland, and Austria; the drone of bombers overhead in Nanking, Spain, and Ethiopia as dictators, strongmen, and thugs gobbled up vast portions of the world in the 1930s, echo forward seven decades with Russia’s invasions of Georgia, then Crimea, and now Ukraine. In the 1930s, the League of Nations watched and debated as hapless world powers responded to naked aggression by doing nothing. An air of appeasement hung over a dystopian landscape.  The result was a world at war for the second time in a century, resulting in the deaths of more than 70 million people.

Appeasement did not work in the 1930s and it most likely will not work in 2022.  The United Nations paradigm calls for peaceful resolution of disputes, using force only as a last resort. It is a laudable standard that has been used as a gyroscope to help balance a topsy turvy world order. Yet, in a reckless move, the Russian Federation, led by a dictator, chose to cast aside this paradigm and invade a member state of the United Nations.. As a founding nation of the U.N. and a permanent member of its Security Council, Russia’s act of aggression sends a signal to the world that the Russian Federation no longer feels bound by the United Nations Charter and sends a signal to other strongmen that the use of force rather than the rule of law is now the new standard for world governance, reverting back to the 1930s.

This aggression on the part of the Russian Federation is a direct affront to the world order and must be dealt with calmly, with deliberation, yet with a firm and resolute hand. To date, the democracies of the world have come together in an unprecedented way, standing shoulder to shoulder in facing down the Russian aggression.  Yet the resolve to hold Russia accountable could wane and weaken. Russia is relying on the possibility of this weakening over the next several months; it’s Vladimir Putin’s ultimate weapon. He has no respect for Europe’s backbone.

Russia knows that time and distraction present the simplest path to a partial victory in Ukraine. Though it appears that a total seizure of Ukraine is no longer a viable option, credible seizure of large portions of eastern Ukraine — as opposed to the manufactured annexation both belied by facts on the ground and overwhelmingly rejected by the United Nations on October 13^th — would be a victory for Russia. It would allow Putin to pause, regroup, and wait for further opportunities to seize more portions of Ukraine later or, of equal concern, other smaller nations in and around the Russian sphere of influence. This is a similar scenario that was used by the Axis powers in the 1930s—nibble away, pushing just enough, yet not causing a conflict with existing democracies reluctant to use military force.

We are at a moment in history where democracies under the United Nations have a choice: stand up to aggression or try to diplomatically resolve the situation.  Diplomacy should always be the preferred course of action in any conflict, yet it is our considered opinion that Russia has forced the United Nation’s hand by its behaviour in management of the conflict and its total disregard to the rule of law in Ukraine.  Russia doesn’t care what the United Nations does diplomatically — it will not give up in Ukraine.

When pushed, Russia pulls out the nuclear weapons card, threatening to escalate beyond not only convention but reason.  It is a worrisome tactic, but one that should not weaken United Nations resolve to hold Russia accountable for the international crimes it has committed in invading Ukraine, particularly the act of aggression.  It is the core crime committed by Russia and it must be dealt with. The world’s strongmen are watching intensely, ready to move should the world step away from action against Russia under the rule of law.

The time is now. The lessons of the past show appeasement will not work in resolving the invasion of Ukraine by Russia. Using the power of the law will work.

The United Nations must use the rule of law as the weapon of choice in handling this Russian lawlessness. It is the right time to do so and the international community has the right tools. During a post-war period when the global mechanisms of accountability were systematically strengthened based on the intelligence gathered through humanity’s brutal experience with atrocity, the international community developed the jurisprudence, the rules of procedure and evidence, and the experience to deal with crimes of the kind committed by Russia, including investigating and prosecuting a head of state.  A new legal discipline has emerged called international criminal law. New justice mechanisms have shown that the prosecution of international crimes can be done efficiently and effectively.

One of the more successful justice mechanisms was the UN Special Court for Sierra Leone, created via a bilateral arrangement between the United Nations and a member state, Sierra Leone. It had a workable mandate, including the ability to prosecute a sitting head of state if need be. The Special Court for Sierra Leone held all parties accountable who bore the greatest responsibility for international crimes, to include for the first time in the modern era a sitting head of state, President Charles Taylor of Liberia.

The model of the Special Court for Sierra Leone and its successes is the framework by which a Special Tribunal for Ukraine on the Crime of Aggression can be created.  Such a new tribunal is necessary as the International Criminal Court, which is investigating the war crimes, crimes against humanity, as well as possible genocide perpetrated by Russian forces, does not have the jurisdiction to prosecute the Russian aggression. A justice mechanism to investigate, indict, and prosecute the Russian leadership for the crimes of aggression and aiding and abetting aggression must be created to hold them accountable.

There are several efforts today working to create a justice mechanism regarding Russian aggression.  They can be broken down in three ways. One position is to do nothing as it would take away from the efforts of the International Criminal Court in doing its work investigating the various crimes committed by Russian forces in Ukraine.  Another position is to have the European Union create a tribunal or court to handle the aggression. The final position is to use the United Nations to create a tribunal to investigate and prosecute the crime of aggression. Each position has appropriate arguments in its favour, yet we strongly believe that Russian aggression is a problem of such a magnitude that it must be dealt with by the United Nations as a whole.

We have suggested a process that would support the third position. As participants in the creation of the UN Special Court for Sierra Leone, we have, with the support of the Global Accountability Network, suggested a model that should lead to the successful creation of a Special Tribunal for Ukraine on the Crime of Aggression. The Global Accountability Network has created a handbook on how to set up this tribunal, as well as sample drafts of a United Nations General Assembly resolution that requests the UN Secretary-General to negotiate an agreement with the Government of Ukraine to create an independent Special Tribunal; and a sample draft of a creative statute to be negotiated and signed. Our view is that all this has been done before in West Africa and the United Nations should use that model to create a tribunal to deal with the Russian aggression in Ukraine.

The time is now. The lessons of the past show appeasement will not work in resolving the invasion of Ukraine by Russia. Using the power of the law will work. Humankind is at another moment of history where the fate of an international order based on the rule of law hangs in the balance. Ukraine has supported our concept of a Special Tribunal for Ukraine on the Crime of Aggression in a recent op-ed in Time magazine and President Zelensky recently highlighted our concept publicly to the diplomatic corps. The United Nations should stand ready to heed Ukraine’s request and work together to create the tribunal. Over the past two decades, we have learned that in most circumstances, the rule of law is more powerful than the rule of the gun.

Hans Corell was the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations.  He was instrumental in setting up all of the modern era courts or tribunals in Yugoslavia, Rwanda, Sierra Leone, Cambodia, and the International Criminal Court.

Irwin Cotler was the Minister of Justice and Attorney General of Canada and during that tenure led Canadian support for all the international courts and tribunals, to include the Special Court for Sierra Leone. Founder and Chair of the Raoul Wallenberg Centre for Human Rights.

David Crane was the founding Chief Prosecutor of the UN Special Court for Sierra Leone and founder of the Global Accountability Network.