Will the Russian war against Ukraine prove to be a watershed moment for the implementation of international criminal law to the powerful of this world? Parallel to the events on the battlefield, an intense legal-political debate over the possible ways to prosecute Russia’s aggression against Ukraine has unfolded, exposing strains in the rationale and legitimacy of international criminal law. Given that Russia is not a party to the Rome Statute (while Ukraine has accepted the International Criminal Court’s jurisdiction over alleged crimes committed on its territory since November 2013 through two declarations), the ICC is unable to prosecute the Russian leadership for the crime of aggression in the context of Russia’s ongoing war against Ukraine. Nor can a referral by the UN Security Council circumvent the jurisdictional restrictions due to the Russian veto power therein.
The heated deliberations about the preferred institutional mechanism for holding Russian decision-makers accountable have led to debates over options such as trials before national courts with international elements, a dedicated special tribunal, or the ICC for crimes which fall within its jurisdiction. The United States and Germany have expressed support for a ‘hybrid’ tribunal, including national and international elements. Ukraine, on the other hand, along with the ‘Core Group’ of Friends of Accountability has advocated a special international tribunal either based on a multilateral treaty between interested states under the Council of Europe auspices, or an UN General Assembly-endorsed setup. The Baltic states have emerged at the diplomatic forefront in pushing this tribunal, insisting on holding Russia accountable for the aggression against and atrocities in Ukraine. The Baltic politics of accountability-seeking for Russia serves as an instance of ‘diplomacy with memory’ – a strategic diplomatic action that employs the past for achieving certain rational aims on the international stage for the future. Underpinned by their own experiences of Soviet crimes, which to this day largely remain legally unaccounted for, the Baltic states’ pursuit of accountability for Russia’s aggression provides an evocative illustration of how the political remembrance of the past informs states’ ontological security-seeking and foreign policies in the present. In the Baltic case, the name of the game is deterring Russia inter alia by legal-political means.
From the Baltics, with deterrence
Insisting on the imperative to establish Russia’s accountability for the crime of aggression and calling for the utilisation of the frozen Russian state assets for the reconstruction of Ukraine have emerged as the trademark Baltic foreign legal policy post-2022. The Baltic variant of memory-political deterrence endorses the norms of legal accountability for the gravest international crimes, on the one hand, but also has an element of aspiring for a modicum of symbolic justice over the Baltics’ own past experiences with Russian and Soviet imperialism, on the other. The Baltic voices in the international justice debates have adopted an emphatic public conscience role in defending the normative consistency of an existing international ‘rules-based’ order and seeking to strengthen the Western alliances in the comprehensive defence of that order. While the Baltic foreign legal policy is outspoken on Russia’s accountability issue, including under the social media #SpecialTribunalNOW, it is not naïve in the sense of expecting a fast turnaround of the traditional cautiousness of larger states about universal jurisdiction regarding the crime of aggression, nor in overcoming the many existing reservations about creating a special tribunal for Russia. Still, a hybrid tribunal is deemed to compromise international law ‘at a critical time when the legitimacy of international law must be restored to effectively confront, both militarily and judicially, the crime of aggression against Ukraine’ by a permanent UN Security Council member Russia. Likewise, a national tribunal is considered as deficient for restoring the legitimacy of international law. Hence, the Baltic representatives have advocated for the creation of an international criminal tribunal, preferably in the format to ensure the broadest possible international legitimacy of the tribunal, albeit the original UN General Assembly-endorsed aspiration has gradually become moderated to the Council of Europe-based format instead. Impunity would set a precedent for repeating the aggression for ‘unchecked in Ukraine, Russia will inevitably advance further’.
We see here the intertwining of the two traditionally conceived types of deterrence: while in the most immediate sense an international special tribunal is about punishing the aggressor at the highest level (deterrence by punishment), it further works to raise the cost of aggression, both in the present and future (deterrence by denial). For ‘whereas punishment deters through the fear of pain, denial deters through the fear of failure’, thus threatening the aggressor’s ability to achieve its goals and supposedly incentivising restraint on future aggressive behaviour. The latter is supposed to be instigated by the very going after the Russian leadership (‘the troika’) through the preferred international tribunal format. Establishing accountability for the grave violations of the existing order would accordingly demonstrate the resolve and credibility of its defenders.
As Erki Kodar, Estonia’s undersecretary of legal and consular affairs put the point at a thematical Chatham House event:
The way this war ends will determine the type of peace that we will have. We have to be more steadfast in our responses against all aggressors who undermine the international rules-based order, and take action to deter Russia and others as to show that this is not acceptable.
Since the Soviet leaders never had their “Nuremberg” ‘for their crimes of aggression at the time’, ‘the crimes of Stalin are being repeated in Ukraine. After the Second World War we promised “Never again”, but this promise has been broken’.
As by attacking Ukraine, Russia is concurrently attacking the fundamental principles of the United Nations and the OSCE, the Baltic ‘existential security interests’ are directly ‘at stake in this war’. The negation of the impunity principle and the fierce commitment to the accountability-normative deterrence nexus is hence concurrently part of a pragmatic advancement of the Baltics’ sense of security in the post-2022 world.
A vicarious struggle for historical justice
The Baltic efforts for deterrence through accountability are mobilized by deeply held values, their painful historical experience and vicarious identification with the Ukrainians’ plight. By highlighting the deterrent value of legal accountability, they reinforce the expressive value of the no-impunity norm for their identity and sense of security. Thus, while the core international crime of aggression has palpable regional resonance for the Baltic states, the significance of the case at hand is emphatically maintained to be of general importance.
The Baltic politics of accountability is further underpinned by a belated search of a symbolic closure with their own experiences of Soviet aggression and a concomitant quest for some retrospective justice thereof. The Russian war against Ukraine has brought the Baltic physical and identitarian security concerns into an interconnected deterrence framework, intertwining the Baltics’ and Ukraine’s policy agendas on both military security and international justice fronts. Notably, since 2022, the Baltic states have been at the forefront of demanding a more substantial NATO engagement in the war, supporting Ukraine’s membership case in the EU and NATO, and providing proportionally significant military, political and economic aid to Ukraine.
Such politics demanding Russia’s multi-dimensional accountability for the aggression against Ukraine is informed by the Baltic nations’ experience of Russia as ‘a repeat offender’. The historical experiences amplify their broader warning to the non-Russian world (‘We know how the story goes if Russia is signalled that their actions may go unchallenged and they are not held accountable’). Meanwhile, the Baltic diplomats are careful to avoid leaving the impression of their support for Ukraine being about settling old scores. Rather, the Baltic states draw on their shared experience with Ukraine. When the Core Group of Accountability met in Tallinn, Estonia in spring 2023, the group was received at the Vabamu Museum of Occupations and Freedom, chronicling Estonia’s experience through the Second World War and the consecutive Soviet and Nazi occupations. This exposure was intentional to demonstrate that the special tribunal issue is about ‘something bigger’, namely, to safeguard that what has happened in Ukraine ‘doesn’t happen again’.
The Baltics hence express a self-ascribed special responsibility not to let the West ‘quietly sweep(…) their failures under the carpet’. Holding the Russian leadership accountable is therefore ‘also a matter of not repeating the horrors of history again’, as the then Estonian Prime Minister Kaja Kallas argued at the 2023 Munich Security Conference:
We had the Nuremberg Tribunal and the Tokyo Tribunal, but there has never been a Moscow Tribunal, and that has given Russia the impression that they will go unpunished. We must stop the endless cycle of Russian wars of conquest and send a clear signal that no one in the Russian leadership is untouchable. If we fail in this, no one will be able to feel safe – crimes without punishment will encourage and inspire new atrocities.
Practical steps taken
The Baltic Three were among the founders of the intergovernmental Register of Damage for Ukraine based at the Council of Europe, assisting to gather evidence and damage claims to pave the way towards the establishment of an international compensation mechanism for victims of Russian aggression. They are further participating in the joint investigation team of the European Union (JIT) and the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) tasked to collect evidence of the crime of aggression committed by Russia in Ukraine and ensure that Russia’s crimes do not go unpunished. The Baltic states have expressed continuous support for the investigation of the ICC into the situation in Ukraine, participate in an international coalition that is involved in bringing the children deported to Russia back to Ukraine as part of the Ukrainian peace formula, have introduced entry bans to people who have committed or supported grave human rights violations in the context of the Russian war, and intervened as a third party in the case of Ukraine v. the Russian Federation before the International Court of Justice in 2023 among 30+ states. All Baltic parliaments have recognised Russian atrocities as an act of genocide against Ukrainian people.
The ‘second Nuremberg moment’ in International Criminal Justice?
Not many expect seeing Putin and his entourage being held accountable in an international court for the crime of aggression against Ukraine. Yet the respective foreign legal policies of the Baltic states epitomize the belief that the pursuit itself matters regardless. The Baltic Three are pursuing the accountability norm as a foreign policy strategy, arguing that Russian leadership’s accountability is part of the international community’s general deterrence responsibility to discourage potential future offenders from ‘would-be’ aggression. The non-execution of the accountability norm further buttresses the aggressor’s resolve for failing the international community’s declared commitment, and thus devaluates the credibility of international law and its restraining frameworks on the use of force in international relations.
Nonetheless, a chasm persists with regard to legal accountability in international relations at large, as most perpetrators of mass atrocities escape legal proceedings in reality. Whereas the prohibition norm of aggression is explicitly codified in international law, the Kampala Amendments on the Crime of Aggression have been ratified only by 45 states. Russia’s war against Ukraine has brought the enforcement issue of the proclaimed accountability norm to the forefront of public deliberations, along with the issues of international criminal law’s selectivity, the ICC’s legitimacy and the Eurocentricity of the global accountability regime. Russia’s full-scale invasion of Ukraine fits the bill of clear non-compliance with international law, as Russia is in blatant violation of the territorial integrity and non-aggression norm. This textbook case of accountability is obligatory in theory but complicated in its practical implementation due to disagreements over the appropriate enforcement mechanism.
The punitive practices – and their (non)-implementation – are good indicators of the structures of power and authority in international society. The reluctance of the leading Western states, notably the United States, to endorse a fully international accountability mechanism, illustrates this observation only too well. Besides the US’s vulnerability towards the ‘hypocrisy charge’ in relation to its own unlawful (and yet not internationally accounted for) war on Iraq in 2003, there is an oft-recognised tension between the broader goals of justice and peace. The crux of the justice dilemma is the impossibility of solving today’s and preventing tomorrow’s wars concurrently. The agents pursuing an argument of deterrence through accountability are consequently bound to navigate the perennial peace versus justice dilemma. The Baltic way of tying the deterrence argument to the long-term guardianship of the ‘rules-based international order’ illustrates an attempted escape from this standard bind through the rejection of a minimalist/negative definition of peace and the embracing of a positive, long-term peace.
This research was supported by the Volkswagen Foundation-funded MEMOCRACY Project (120221) and by the European Union ERC CoG RITUAL DETERRENCE (101043468). Views and opinions expressed are, however, those of the author only and do not necessarily reflect those of the European Union or the European Research Council. Neither the European Union nor the granting authority can be held responsible for them.
