Ukraine Can Change the Future of Prosecuting Crimes of Aggression

International efforts to prosecute the crime of aggression are focusing on punishing Russian leaders responsible for their country’s invasion of Ukraine. The Council of Europe’s Parliamentary Assembly has just called for the establishment of a special tribunal to prosecute the ongoing crime of aggression committed against Ukraine, starting with Russia’s annexation of Crimea in 2014. It states that “Russian and Belarusian political and military leaders who planned, prepared, initiated or executed these acts, and who were in a position to control or direct the political or military action of the State, should be identified and prosecuted.”

But why cast the net so narrowly? Deliberately targeting civilians and nonmilitary objectives is a war crime, whereas the crime of aggression covers the totality of the attacks and all of their killings, including the killings of Ukrainian soldiers. All those involved should be held liable for aggression.

Just war theorists traditionally argue that, if anyone is to be judged for waging a war of aggression, it’s only the military leaders on the aggressive side—and in any event, it might be better to avoid divining responsibility for who started and waged the war altogether. Remaining neutral on the question of who is to blame for aggression is a typical stance for humanitarian organizations seeking to assist the victims of war, but it shouldn’t be a position for just war theorists or any tribunals grounding their arguments in just war theory.

Russia’s invasion of Ukraine should change the way theorists and prosecutors think about individual responsibility in wartime. For a while now, philosophers such as David Rodin and Jeff McMahan have been arguing that just war theory’s prevailing idea that ordinary soldiers cannot be punished just for fighting should be revised or even rejected.

Today’s reality in Ukraine, I think, demands that their view be taken seriously. The idea that individual soldiers can and should be punished for waging a crime of aggression is philosophically better than the prevailing idea in just war theory—and it is also highly practicable. It can be used by prosecutors who, when the time comes, seek to argue that Russian soldiers should be held liable for knowingly participating in killings and destruction. Here’s why we should accept it.

But the importance of the right to fight is being overtaken by a human rights perspective arguing that the human right to life is more salient. The United Nations’ Human Rights Committee stated in 2018 that lives taken as part of a war of aggression represent violations of the right to life.

At one level, the 2018 text is a plea for recognition that the only morally acceptable reason for taking a life is an immediate need to defend a life. But at another level, it forces a reconsideration of the assumption that, in wartime, soldiers have some sort of legal entitlement to kill. If killing soldiers in an act of aggression is now a violation of human rights law, then claiming that a soldier on the aggressor’s side is blameless and cannot be held liable for exercising a soldier’s right to kill makes no sense.

Neither does appealing to a soldier’s belief in the justness of their cause. People expect autonomous individuals to reflect on their actions and have their beliefs respected, whether or not they are soldiers. Clearly, conscripts coerced into fighting should not be judged in the same way as someone who has knowledge of plans to launch an aggressive war and who have the power to shape or influence such a war. But soldiers who are asked to fulfill their responsibilities under the laws of war are also smart enough to be aware of the unjustified destructiveness of a war of aggression. Their claimed beliefs in its justness should not be a reason to let them off the hook.

Another explanation commonly used to conclude that soldiers should not be punished just for fighting is that, if soldiers from the unjust side are liable to be punished for waging war no matter their battlefield behavior, then they have no incentive to spare civilians. If I’ll be punished anyway, a soldier might think, why behave well?

However, this is a poor argument for the claim that soldiers shouldn’t be punished just for fighting. It overlooks the fact that soldiers who are inclined to commit war crimes against civilians rarely think about the prospect of punishment—and in any event, the machinery for prosecuting war crimes represents an additional layer of criminal accountability rather than an alternative.

Lastly, it has been suggested that soldiers should not be punished for fighting because it is their duty to do so. In Walzer’s view, soldiers have a duty to follow rules and to kill. This inherent servitude makes it impossible to think of the act of fighting itself as a crime that soldiers can be held responsible for: In other words, “their war is not a crime.” But this exculpation of soldiers from the aggressor’s side seems ripe for revision in the 21st century.

The case for punishing soldiers who engage in a crime of aggression, regardless of whether they commit war crimes, is already starting to play out in the real world. In 2016, Ukraine convicted two Russians for, among other things, the crime of conducting an aggressive war. Yevgeny Yerofeyev and Alexander Alexandrov had been in the Russian armed forces with the rank of captain and sergeant respectively. They participated in the conflict in eastern Ukraine on the side of the so-called Luhansk People’s Republic and were both sentenced to 14 years of imprisonment.

While they were both pardoned a month after their convictions and exchanged for a Ukrainian pilot, the use of the crime of waging aggressive war is a reminder that the crime of aggression is not a dead letter. Although these prosecutions have been seen by many officials as exceptional, they suggest that another approach to just war theory is possible.

More recently, the prosecutor general of Ukraine announced in February that his office calculated that Russians were involved in 66 crimes related to waging aggressive war. They had a total of 637 suspects who were representatives of Russia’s military and political leadership. In turn, they state that this category includes ministers, deputies, military command, officials, and heads of law enforcement agencies.

In 1946, at the end of World War II, the International Military Tribunal at Nuremberg made the point: “[Nazi leader Adolf] Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing.”

Although the tribunal felt that some defendants had not gone beyond mere support, 12 defendants were found guilty of the charge that they participated in the planning, preparation, initiation, and waging of wars of aggression. They included on the military side Adms. Erich Raeder and Karl Dönitz. So when prosecutions were brought at the end of World War II for waging a war of aggression, the net was cast beyond the top leaders. But who should be caught in this net today is still not clear.

The U.S. Military Tribunal in the High Command Trial stated in 1948 that “[s]omewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it.” In the end, this tribunal did not consider that the generals in the dock should be convicted for aggression-related charges, saying this was not an issue of rank but rather that they themselves had not been in a position to shape or influence policies. The tribunal instead convicted 11 of them of war crimes and crimes against humanity.

In thinking about accountability for violence in Ukraine, people should not only consider all the lives lost but should also think about all those who are responsible. Of course military and political leaders will not lightly abandon the idea that people should not be punished for participating on the unjust side. The traditional just war response to the difficulty of determining which side is just has always been that soldiers cannot be punished solely for fighting because both sides will always consider their cause to be just and there is no one to sit in judgment on sovereign states. Who, after all, will determine which side is just?

Instead of stressing a right to fight or the equality of soldiers, just war thinkers seeking to reflect contemporary reality will have to consider the liability of individuals for waging a war of aggression. Prosecutors and tribunals will inevitably have to be selective about whom to prosecute. Such choices, as law professor Adil Haque points out, will be made using law and morality.

Those thinking about the morality of killing in war might reconsider the mantra that soldiers are entitled to kill and reflect on the reality that those who wage war are being targeted for prosecution—and that any concept of a traditional right to fight has been overtaken by the right to life. However many individuals are eventually prosecuted for waging war in Ukraine or for war crimes and crimes against humanity, the way people think about the individual responsibility of soldiers is changing.