Ukraine is a nation that understands the suffering of war. In 1941, Babyn Yar, in the north of Kyiv was the site of one of the worst massacres of the Holocaust. Over 30,000 people lost their lives in a two-day period of shooting by Nazi forces.

Today, similar crimes are allegedly being committed in similar places, this time by Russian forces. Many will hope that the same systems of justice that were brought to bear at the end of the Second World War can be brought to bear once again. 

In 2023, Vladimir Putin was indicted by the International Criminal Court (ICC). But he is unlikely to face a Nuremberg of his own. To understand why we need to take a look at the history of international justice and the uncertain future that it faces.

Visit our War in Ukraine page to watch more videos from our Ukraine series.

Will Putin stand trial over alleged war crimes in Ukraine?

© IWM

Voice over: "Ukraine is a nation that understands the suffering of war. In 1941, Babyn Yar, in the north of Kyiv was the site of one of the worst massacres by shooting of the Holocaust. Over 30,000 people lost their lives in a two day period. Today, similar crimes are allegedly being committed in similar places, this time by Russian forces. Many will hope that the same systems of justice that were brought to bear at the end of the Second World War can be brought to bear once again. This year, Vladimir Putin was indicted by the international criminal court for war crimes. But he is unlikely to face a Nuremberg of his own. To understand why we need to take a look at the history of international justice and the uncertain future that it faces."

James Bulgin, head of public history, IWM: "So essentially everything that we know or think about international justice today derives from the trial at Nuremberg after the Second World War."

Voice over: "Some of the first formal rules of war were signed during the Hague Conventions of 1899 and 1907. However, there was no meaningful way to administer them, and no body to punish those who broke them. That was until the middle of the Second World War."

James Bulgin: "These reports started to emerge about exactly what was being done in the name of Nazism and the German war effort and there was a clear understanding amongst the Allies that this was something which was considered to be beyond what had been witnessed previously and they wanted to ensure that there was a mechanism for making sure that those responsible for it were brought to account."

Voice over: "In 1943, Stalin, Churchill and Roosevelt singed the Moscow Declaration – vowing to pursue the Nazi leadership “to the uttermost ends of the earth…in order that justice may be done". However, beyond that they didn’t agree on what justice looked like or how a theoretical trial would actually work."

James Bulgin: "Different countries have different systems of law, and some of these differences are small and some of them are really substantial. Things like the rights to a trial by jury. So some countries were using judges as the kind of the main arbiter in the trial and some are using juries as the people who kind of determine whether or not somebody's guilty or not. So these distant different systems had to find a way to come together in one single site at one single time."

Voice over: "In August 1945, the Allies produced the Nuremberg Charter in which the four legal codes of the major Allied nations came together. Prosecution and defence attorneys were borrowed from British and American law, while decisions would be delivered by a panel of judges as in French and Soviet law. The charter also set out the crimes with which the nazis were to be prosecuted."

James Bulgin: "So, while the trial at Nuremberg was being put together two lawyers, both Polish Jewish lawyers who both originally came from Lviv, advocated for two different types of charges. The first was the crime of crimes against humanity which was advocated for by a man called Hersch Lauterpacht. The second was the crime of genocide which was advocated for by a man called Rafael Lempkin. Genocide was about crimes against the group, crimes intended to eradicate groups, whereas crimes against humanity was about crimes perpetrated against individuals. Ultimately at Nuremberg they settled on crimes against humanity as the main focus, but both of these concepts are now fundamental to international law today."

Voice over: "The trial began on November 20th, 1945. All 21 defendants in the dock pled not guilty."

James Bulgin: "So, of course when the when the Nuremberg Trial happened Germany was a completely defeated nation, there'd been an unconditional surrender. So those who were charged within the trial were prisoners of the Allies. They were charged with offences as individuals, irrespective of whether they were the ones who were actually physically doing these things themselves. So it was a precedent that was established that you could be considered responsible for criminal wrongdoing even if you weren't the one who was personally physically doing it. That was really, really important precedent which has then informed international law in the years since."

Voice over: "Another problem was jurisdiction. Defence lawyers asked how German citizens could be tried by another sovereign country. And for offences which, at the time they were committed, were not considered to be crimes. The prosecution responded that human beings had rights which superseded national boundaries and that some crimes were so abhorrent that they needed no precedent. It worked. 11 months later, in October of 1946 the judges gave their verdicts. 12 were sentenced to death, one in absentia, 7 to prison and 3 were acquitted. In the following years more trials were held at Nuremberg, and then in Tokyo. Before in 1948, the United Nations signed the Universal Declaration of Human Rights. This was followed in 1949 by updated Geneva conventions which codified the rules of war."

James Bulgin: "And we could be forgiven for thinking this is the the dawn of a new age for international law, but actually that's not what happened. There's a huge hiatus and the main cause of that hiatus is the Cold War. Because the idea of the international community working cohesively together just simply isn't possible when the world is divided across these ideological fault lines. So nothing happens."

Voice over: "In that time, international crimes flourished. Massacres, murders, mass rape, ethnic cleansing and so much more went unpunished. Only after the fall of the Soviet Union in the early 1990s did the Cold War come to an end. In this new unipolar world, there was a rebirth of international law. Around this time, bitter conflict broke out in Yugoslavia and in response, the United Nations setup an ad hoc international tribunal, the ICTY. The tribunal was based on the proceedings at Nuremberg."

James Bulgin: "The nature of the crimes there shocked the world. This is the first time that genocide was perpetrated on European soil since the Second World War. The tribunal was established whilst these things were happening so when the genocide happened in Srebrenica in 1995 what it wasn't able to do actually was to get onto the ground and start doing the kind of the criminal investigation that they would have wanted or that you would expect because of course this was a live war zone."

Voice over: "It was only after the Dayton accords were signed and the Bosnian war came to an end were ICTY investigators able to move freely within the territory. The found the evidence they needed, but bringing those responsible to justice would be a difficult task."

James Bulgin: "Unlike Nuremberg which was about a country which had been completely defeated. within Yugoslavia many of those who were being pursued by the court were still in positions of authority right up to the man who was at that stage the president of Serbia Slobodan Milošević. Finding these people and then actually bringing them into court wasn't straightforward at all some of them had chosen to to go to ground and they were protected by a huge number of people who wanted to ensure that they weren't taken to the court. Slobodan Milošević was eventually arrested by his successors and was ultimately handed over to the ICTY for trial within the tribunal."

Voice over: "The ICTY indicted 161 people. It was the time a sitting head of state had ever been charged with war crimes and the first time anyone had been charged with genocide. 90 were convicted, the rest acquitted, transferred or had their cases cancelled. The final trial was concluded in 2017. Out of the ICTY and the ICTR for Rwanda, grew the International Criminal Court or ICC. Becoming active in 2002, the ICC is the first ever permanent, treaty-based, international criminal court."

James Bulgin: "What it meant is that individuals, much as they had been within the ICTY, and the ICTR, and Nuremberg, could be held responsible for their own actions or actions that were conducted at their behest. That differs really fundamentally from the International Court of Justice which is about the conduct of states as a holistic entity."

Voice over: "The ICC was established by the Rome Statute of 1998. As of the making of this video 123 states have ratified or acceded to the Rome Statute. Ukraine has not, although it accepts the court’s jurisdiction. Neither have the worlds three most powerful nations – the US, Russia and China. Russia signed up before withdrawing over its annexation of Crimea. Meanwhile the US champions the court when prosecuting US rivals but criticises or even sanctions the court when under threat itself."

James Bulgin: "So the ICC doesn't have a you know task force or a police force at its disposal to do its bidding. It relies on member states. That means that if a country isn't a member state it's very, very difficult for the ICC to to make its influence felt. In practice the ICC thus far has been mainly used for the prosecution of crimes within countries in Africa and that has been a criticism that's been leveled at that at this stage."

Voice over: "Putin has been charged over deportation of over 16,000 children from Ukraine to Russia. According to Article II of the 1948 UN Genocide Convention "forcibly transferring children from one national, ethnic, racial or religious group to another is an act of genocide." A growing list of countries and heads of state agree, including US president Joe Biden. A UN report from March 2023 also outlines clear evidence of numerous Russian war crimes in Ukraine and a smaller number of Ukrainian war crimes also. The ICC is aware that they unlikely to get Putin in the dock without a radical change of government in Moscow, but his indictment, their first against a sitting president, is an attempt to signify that no-one is above the law. But as we have seen, for international justice to succeed, the world’s great powers must work together. Instead, new divisions are brewing once again, threatening a new dark age for international law."

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