The precise road map of the Ukraine War Crimes Tribunal is still an enigma. Even the format of the court, as a Russian or an international legal institution, remains unclear. Perhaps there are good reasons for holding back on such details at this particular stage.
Recent revelations coming from the top echelons of the Ukrainian regime nevertheless highlight once again the important question of how the Ukrainian Tribunal will go about its tasks. According to David Arakhamia, an influential Zelensky associate and Ukraine’s negotiator at the peace talks held in March of 2022, what many have suspected has now been confirmed. In March 2022, shortly after the commencement of the Special Military Operation, a peace agreement satisfactory to both sides was reached in Istanbul. That peace settlement was scuttled upon the explicit demand put to the Kiev authorities by the then British Prime Minister Boris Johnson during his unannounced and hastily arranged visit in April 2022.
Information about the sequence of events by which imminent peace between Ukraine and Russia was blocked raises significant issues about the scope of the future tribunal’s work. Given Johnson’s pivotal role in prolonging the war, the Ukraine Tribunal now must deal with the question of whether its authority should be confined to prosecuting direct perpetrators of war crimes or ought to include as well the prosecution of their enablers.
Johnson is apparently one such enabler. Newly disclosed evidence shows that he used the resources of his high office to block the peace initiative and to encourage further fighting.
Following Boris Johnson’s personal intervention, which had the effect of prolonging the conflict, about half a million Ukrainians and several tens of thousands of Russians were killed in preventable military operations. These operations were a direct consequence of Johnson’s interference in the conflict. According to military experts, in addition to the killed in action the number of wounded and maimed on both sides may be roughly calculated by multiplying the number of the killed by a factor of at least three. That raises enormously the level of avoidable human casualties in the hostilities that Johnson unnecessarily prolonged. To this should be added material destruction on both sides that also would not have occurred except for Johnson’s intervention and if the parties had been left to work out a negotiated mutually acceptable solution.
International jurisprudence rooted in the Nuremberg principles has established clearly that deliberate incitement to war and obstruction of the peaceful resolution of conflicts is a prosecutable crime against the peace. Those who in March and April of 2022 employed their influence and control in Ukraine to prevent a peaceful settlement between the parties must therefore be held to account. Underlying circumstances support the conclusion that the nature of their conduct was not merely political. It could potentially be criminal as well, provided it is proved that they acted with reckless disregard for the loss of human life and destruction of property, and that they knew or should have known this would naturally follow from the policies they pursued.
Arguably, Johnson did not act on his own but at the behest of the decision making cabal in the collective West, which on April 9, 2022, dispatched him to Kiev with instructions to persuade Ukraine to continue the war. The liability of his confederates may be set aside for the moment. Concerning Johnson’s personal liability, however, there can scarcely be room for doubt. He knowingly consented to undertake a corrupt mission on behalf of the cabal of which he was a member in order to undermine the imminent peaceful resolution to the dispute between Ukraine and Russia. The consequence of his action was to dissuade Ukraine from giving effect to the peace agreement it had reached with Russia by offering it material inducements and guarantees of unlimited support in return for pressing on with the hostilities. The human and material losses which both sides sustained thereafter are a directly attributable, foreseeable, and avoidable consequence of Johnson’s intervention in April of 2022.
The preceding outline of Johnson’s criminal liability closely follows the legal analysis employed by the International Criminal Court for the Former Yugoslavia, also known as the Hague Tribunal, in convicting numerous defendants who were brought to face charges before it.
This writer is on record as urging that the Ukrainian War Crimes Tribunal, which is in the process of being established, should not waste its time reinventing the wheel. Wherever practicable, it should creatively incorporate the procedures of the Hague Tribunal. That will make it exceedingly difficult to credibly challenge the Ukrainian Tribunal’s practices, at least to the extent that they mirror the legal rationales and judicial mechanisms devised by its Western detractors in the period of their hegemonic dominance for the benefit of their privileged legal instrument, the Hague Tribunal.
Following in the footsteps of the Nuremberg court, in addition to pursuing direct perpetrators, the Hague Tribunal indicted also suspects that it classified as inciters and enablers of war crimes (the Šešelj case is a conspicuous example). The Ukrainian War Crimes Tribunal should do the same.
Recent high level revelations of Boris Johnson’s warmongering activities, resulting in a massive death toll and immeasurable grief to hundreds of thousands of Ukrainian and Russian families, provide a sufficient factual basis to open an investigation which might lead to a criminal indictment. Once the mechanism for dealing with this category of cases is established and perfected, the Ukraine Tribunal should proceed to investigate and, where warranted, indict other prominent figures in the collective West leadership. The focus should be on those who, while acting in a non-perpetrator capacity, had nevertheless made a significant contribution to the commission of criminal acts and grave violations of international law in the course of the conflict which is taking place in Ukraine.
The Ukrainian Tribunal must be relentless in the pursuit of offenders, whoever and wherever they might be. It should disseminate a clear warning that no one will remain exempt from accountability. Many of them for the rest of their natural lives will probably remain beyond the reach of effective justice, but an unequivocal message must be sent to them all that the days of hegemonic impunity are over. As the number of sovereign states rejecting hegemonic dictates steadily increases the noose around them will tighten. As a minimum, even if momentarily safe from apprehension and prosecution, indicted war criminals must be made to watch their back and constantly feel insecure knowing that the slightest misstep might result in justice being served.