Brooke Gladstone: This is On the Media. I'm Brooke Gladstone.

Deb Amos: And I'm Deb Amos. There's no shortage of charges to bring against Putin for his actions in Ukraine, but his first crime in this war was the very invasion of Ukraine. Says Philippe Sands professor of law at University College London, an author of East West Street on the origins of genocide and crimes against humanity. He says that prosecuting Putin for this initial act of war, the so-called crime of aggression is the best way for the international community to hold Russia's leaders accountable. Sands made the case in a Financial Times guest editorial just a few days after Putin invaded Ukraine. I asked Sands to describe the war crimes on the books today and how they came to be there.

Philippe Sands: Everything really does go back to 1945 and the summer of that year when the allies decided to set up an international military tribunal to try senior Nazi leaders,

Male Speaker 10: Merely as individuals, their fate is of little consequence to the world. What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust.

Philippe Sands: They lacked the sufficient crimes. It could be said the one they had was war crimes, which dated back to the 19th century, the targeting of civilians, the failure to focus on military, the use of weaponry that was itself unlawful, but that wasn't enough. The allies cobbled together three new international crimes, crimes against humanity, the targeting of civilians on a systematic, widespread scale, genocide, the targeting of groups, and the crime of aggression, waging and manifestly illegal war. For the Nuremberg tribunal, the crime of aggression, waging an illegal war was the crime of crimes because all the other crimes followed from that crime. That, of course, is exactly the situation today in relation to Ukraine.

Deb Amos: Let's talk about jurisdiction for a minute if we can. What court can prosecute the crime of aggression?

Philippe Sands: At this point, there is no international tribunal that can prosecute the crime of aggression. There are some domestic courts, national courts, but a case before a national court runs into one particular problem. That is the immunity of Mr. Putin as a head of state. That doesn't apply in relation to an international court. That's one of the reasons Ukraine and many of the countries that are supporting it want a special tribunal established under international law.

Deb Amos: Putin's been indicted by the ICC, but not for the crime of aggression for allegedly deporting and transferring Ukrainian children to Russia.

Philippe Sands: I think the problem with the indictment is you're going to have to show the direct involvement of Mr. Putin, and that will not necessarily be an easy thing to prove. Now the prosecutor of the International Criminal Court, who happens to be former student of mine and who I know well, has been very opposed to the idea of a special tribunal for the crime of aggression. I think because he's worried that it will deflect attention from the efforts of his own international criminal court.

Deb Amos: Let me get this right. This is the prosecutor of the International Criminal Court. He sees a new court as a competitor. He wants to be the major player in this game.

Philippe Sands: That's my interpretation. Yes, correct. My concern was that we would end up in a situation in which the lesser millions, the lower level people would be hauled up to the Hague. Mr. Putin, Mr. Lavrov, Mr. Shoigu, the people who designed and decided to go to war would, if you like, escape the long arm of justice.

Deb Amos: The crime of aggression is to go after the top table. That's the only way to hold the leadership accountable.

Philippe Sands: It's the only way with any degree of certitude to get to the top table. It's a small number of people, 15 or 20 max. The only way you can aim at them and you can establish very easily their culpability is the crime of aggression.

Deb Amos: The crime of aggression is interesting because it hasn't been prosecuted since the Nuremberg trials. It seems that war crimes are now about atrocities, not about accountability.

Philippe Sands: I think it's fair to say that the five permanent members of the Security Council, Britain, France, the US, China, Russia, have a common interest in diminishing the capacities of an International Court or tribunal to deal with the crime of aggression because they don't want themselves to be in the spotlight.

Look, let's jump straight to the elephant in the room. Certainly, from the perspective of many countries around the world, and that's Iraq in 2003, many people, myself included, think that Iraq was as a matter of international law, illegal. Many other people think that it was a crime of aggression for which the perpetrators, including Mr. Blair and Mr. Bush, should have faced some sort of accountability. You can understand against that background that in the White House, in the [unintelligible 00:43:46] at 10 Downing Street, there's going to be a bit of nervousness about establishing a big new precedent in relation to Ukraine.

Deb Amos: Is that a reasonable fear for all of them?

Philippe Sands: Well, I think it's a reality. If you create a special tribunal for the crime of aggression for the first time since Nuremberg, then you are creating a precedent. You've essentially got an issue of principle and a political issue. How committed are you to dealing with the crime of aggression in relation to what Russia is doing now? What I fear Britain, France, and the United States are doing is sitting on the fence. There is a double standard.

Deb Amos: That double standard is noted by people in the global south. They say that their lives are less valuable when they have a conflict like the one that is happening in Ukraine.

Philippe Sands: Absolutely, there is merit to that. Why was I not writing pieces in the Financial Times calling for a special tribunal in relation to Syria or in relation to Congo? I think each of us has a sense of kinship with a particular community. I know the folks in Ukraine, I've spent time in Lviv, I've been in Lviv when it was attacked. That has made it real. That does not in any way diminish, although it partly explains the force of those who say, why are you only doing this now in relation to a war in Europe? Why didn't you do it in relation to these other places? I think that question forces us to look deep down into ourselves and ask ourselves, how it is we've allowed this to happen? But it's not a reason for doing nothing. It's a reason for doing more, not less.

Deb Amos: Have countries opposed to the international tribunal? Are they suggesting an alternative way to hold Putin accountable?

Philippe Sands: Yes. I want to give credit here also to Britain, France, the United States, Germany, which have moved very far. These are countries that have never since Nuremberg supported the creation of any a tribunal at the international level to deal with the crime of aggression. In the case of Russia, they have shifted big time. They want accountability for the crime of aggression, but they want it before essentially a glorified Ukrainian tribunal. That's a problem. They're not willing to go the extra mile for the reasons that we've been discussing. It wouldn't be right to say that they don't want accountability. I think it would be right to say that their room for maneuver is deeply constrained by their own actions in the past, at least some of them.

Deb Amos: This war, which is so much based on history, has a corollary in the legal realm of accountability?

Philippe Sands: Absolutely. I think your history point is extremely important. After all, this current war is taking place on the very same territory, which the war of 1939 to 1945 took place on. It's absolutely incredible. If you go into, for example, the transcripts of the Nuremberg trial, you will find the Soviet prosecutors in fact who pushed the crime of aggression more than anyone charging the Germans with crimes at Mariupol. The very same place where the West now charges Russia with having committed war crimes. That, I think is the particular horror of what is going on right now.

Deb Amos: There are rare cases where leaders are held to account. I can think of two at the International Criminal Court, Milošević after the war in ex-Yugoslavia and Charles Taylor in Africa. It is rare, it is possible that even Vladimir Putin will not be held accountable. What difference will that make?

Philippe Sands: You never quite know what direction things are going to take. I think we're not at the end of the story in relation to Ukraine. For example, we're hearing stories about a nuclear power plant, which has been mined ready to be blown up in part. I think if you get something like that or another major atrocity taking place on a very significant scale, the political imperative to go for the top table will be so great that the dam will burst, and these countries that have opposed a special international court, I think will change position. The bottom line is Mr. Putin cannot be allowed to get away with this.

Deb Amos: I want to go back to World War I, to a leader who wasn't held accountable. I was in the Hague recently and I went to the final resting place of Kaiser Wilhelm. Now, he was given asylum in the Netherlands after World War I while in England, the Prime Minister Lloyd George, his campaign slogan was Hang the Kaiser, but it didn't happen. It never happened. Would history be different if the Kaiser had been held responsible for World War I?

Philippe Sands: It's funny you should mention that because just today I've been writing a little piece about this. The idea of an indictment of a former Kaiser was unbelievably revolutionary at that period. It took another, if you like, 25 years for the President to be taken forward with Nuremberg. Nuremberg, of course, then begot Yugoslavia, Rwanda, the International Criminal Court, and now we're into Russia and the crime of aggression. I think you can see here a sort of incremental picture that I'm describing. It's a long game. One thing leads to another and you never quite know what it's going to lead to. That is the remarkable thing about it.

Just today I've been focusing on a Augusto Pinochet's surprise. When he got the tap on the shoulder on the night of October the 16th, 1998.

Deb Amos: The Chilean dictator who was indicted by a Spanish court for human rights violations under universal jurisdiction.

Philippe Sands: That was a direct consequence of the story you tell about Kaiser Wilhelm and of course of Nuremberg. If those things had not happened, Augusto Pinochet would not have spent 503 days in detention in London.

Deb Amos: In your view, these are early days, even this conversation, who knows. Plenty of people say it's unlikely that Vladimir Putin will ever be in the dark, but what you're saying is, this is a very early moment in the legal history of this conflict.

Philippe Sands: They said the same thing about Charles Taylor, and they said the same thing about Mr. Milošević, and they said the same thing about Al-Bashir of Sudan.

Deb Amos: These are all leaders who were held accountable.

Philippe Sands: Indeed. It's really important to stick to a principled position. What's the right thing to do? This war is illegal. It is manifestly illegal, it is criminally illegal, and it's absolutely right to focus on the crime of aggression. One day there will be negotiations to end this conflict. The Russians have made it very clear that all these issues of justice and criminality, aggression, war crimes, crimes against humanity, they are a prerequisite for discussions about peace. That I think is going to raise some very fundamental questions. If you come to a crossroads, and the choice is between peace or justice, which way do you go?

Deb Amos: Philippe, thanks very much.

Philippe Sands: It's been really wonderful to talk to you. Thank you for your interest.

Deb Amos: Philippe Sands is the author of East West Street. His latest book is titled The Last Colony: A Tale of Exile, Justice, and Britain's Colonial Legacy.

Brooke Gladstone: The show On The Media is produced by Micah Loewinger, Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang, and Suzanne Gaber, with help from Shaan Merchant. Our technical director is Jennifer Munson. Our engineer this week was Andrew Nerviano. Katya Rogers is our executive producer. On The Media is a production of WNYC studios. Deb, thank you so much for joining us this week.

Deb Amos: Thanks so much for having me, Brooke.

Brooke Gladstone: I'm Brooke Gladstone.

Deb Amos: I'm Deb Amos.

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