The naive idealism of Gordon Brown’s Nuremberg trial

Vladimir Putin hasn’t won the Ukraine war yet and already they’re talking about putting him in the dock. Gordon Brown’s call for the establishment of Nuremberg-style trials, ‘indicting President Putin and his inner circle for the crime of aggression against Ukraine’, is well-meaning and emerges from a sincere Christian socialist worldview. I once termed Brown a ‘moral romantic’ and his Nuremberg proposal is pure moral romanticism. In a world governed by right and wrong, he is obviously right but in the world as it is, fallen and wicked, his plan to bring Putin before an international tribunal is little more than wishful thinking.

Except through some fundamental change in the circumstances of power in Russia (a palace coup, a popular uprising), Putin will never see the inside of an international courtroom. On Wednesday, the International Court of Justice provisionally ordered Russia to ‘immediately suspend’ its military operations in Ukraine. Unsurprisingly, Russia did not comply. Ukraine creatively used the Genocide Convention to bring Moscow before the ICJ but, even if the court decides it has jurisdiction and even if it ultimately rules against Russia, it is not clear how its final judgment would be any more enforceable than its preliminary one.

The United Kingdom and 40 other state parties to the Rome Convention have referred the situation to the International Criminal Court. Concluding there was ‘a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed’, chief prosecutor Karim Khan has opened an investigation. Ukraine is not a state party and Russia withdrew in 2016 after the ICC called its presence in Crimea an ‘ongoing occupation’; however, Ukraine placed itself under the Court’s jurisdiction ‘for an indefinite duration’ in 2015. Still, the same problem arises as with the ICJ: even if Russia is found to have committed war crimes or crimes against humanity, how do you go about bringing the perpetrators to justice?

Gordon Brown’s Nuremberg tribunal is sunk before it sets sail. Proving Putin or his senior generals culpable of crimes committed on the frontline will be difficult enough, but there’s a more practical consideration. The Butcher of Mariupol isn’t about to turn himself in and unless he’s deposed and extradited by his successor, Russia will not hand him over. Even the lowliest Russian infantryman can be relatively confident he will never make an appearance in the dock.

What then? Presumably no one is mad enough to propose going into Russia (or, post-hostilities, a puppet-run Ukraine), but even attempting to seize Putin or senior Kremlin figures when they next leave Russian territory would be an atomic gamble. The West is sufficiently fearful of Putin’s nuclear belligerence to refuse Ukraine a no-fly zone. Would clapping Sergey Lavrov in irons during his next address to the General Assembly be any less provocative? We have drawn our red line and we will have to live with it.

Trial in absentia would seem to be the only way forward, but not an uncontentious one. The Rome Statute requires that, in a trial before the ICC, ‘the accused shall be present’ but the petition Brown has signed and the position he has outlined in the Mail posit Nuremberg as the desired model. The London Agreement, which outlined the jurisdiction and procedure for what became the International Military Tribunal, did allow for trial in absentia at Nuremberg. It also allowed the Tribunal to draw up its own rules, its own evidentiary standards and to declare any organisation a defendant belonged to a criminal entity. The agreement further required the Tribunal to take judicial notice of Allied government and UN documents and denied the defendants judicial review, though they could petition the Allied Control Council for a reduction of their sentence. By historical standards, Nuremberg was remarkably fair in meting out justice but it was not without flaws of the sort that would be pounced on by Putin and his apologists today.

There are also technical questions: If Russia wins and either annexes Ukraine or installs a pro-Moscow president, how would any tribunal get access to gather physical evidence beyond the open-source intelligence publicly available at present? Questions of enforcement: How do you punish defendants who refuse to show up? What financial or other penalties could the tribunal impose on Russia that haven’t already been imposed in the form of sanctions? Questions of law: Gordon Brown talks about crimes of aggression but Nuremberg also prosecuted war crimes and crimes against humanity. Will the tribunal’s prosecutorial reach extend to alleged Ukrainian war crimes, such as the dissemination of videos of captured Russian soldiers, which Human Rights Watch says ‘violates protections under the Geneva Conventions’, a concern also raised by Amnesty International. Questions of precedent: Will this be an ad hoc tribunal or a permanent institution? After all, there are countries other than Russia that have been accused of unlawful aggression, war crimes and crimes against humanity. Might Nuremberg-style tribunals become a regular feature of international criminal law?

Gordon Brown may have good intentions but that’s the problem with the West’s confrontations with authoritarian regimes. All the good intentions in the world aren’t going to make Moscow (or Beijing or Tehran) concede international norms and institutions which they consider creatures of western imperialism or decadent liberalism. They may feint in that direction strategically every now and then but dictators everywhere know that westernisation begets liberalism, which begets democracy, which begets their future appearance on a scaffold. The West has two choices: it can either accept the limits of its powers, values and institutions or it can adapt them to the realities of the world.

Adapt, not abandon. Reassess for a world in which our laws and institutions regulate us but leave our enemies untouched. Authoritarians regard western liberalism as confused, indulgent, dainty. Maybe it should be less dainty.