How the Soviet Union Helped Establish the Crime of Aggressive War

Irina Baranova

(Ця стаття також доступна українською мовою тут.)

Diplomats and lawyers have been talking in recent days about convening an international tribunal on the Nuremberg model or something akin to it to try Russian President Vladimir Putin and those in his inner circle for waging a war of aggression against Ukraine. And rightly so.

The world has been watching the brute-force invasion in real time and has been tracking the Russian military’s countless violations of international law, from dropping cluster bombs in densely populated areas to refusing to open a true humanitarian corridor for the evacuation of civilians. It has also heard Putin and his Foreign Minister Sergey Lavrov manipulate the language of international law to carry out a propaganda campaign at home.

Putin’s cynical use of the language of international law to defend illegal actions while threatening the sovereignty of other states is nothing new. We saw it with the 2014 invasion and annexation of the Crimean Peninsula, which Putin also described as a humanitarian intervention. In the wake of that move, the Russian State Duma passed a law upholding the supremacy of Russian law over the rulings of international courts. Western observers at the time noted that this was “another step for the Kremlin away from the system of international law and rules in place since World War II.”

What is not always acknowledged is the vital role that Russia, or more accurately the Soviet Union, played in establishing this postwar system of international law in the first place, including the crime of aggression in particular. When international lawyers and politicians now call for “another Nuremberg” (whether in the form of a UN-based, hybrid, or multinational tribunal), it may be helpful to reflect on the history of the first of the Nuremberg Trials. The International Military Tribunal (IMT) of November 1945-October 1946 is often discussed as a triumph of “Western ideals” or as an “American invention.” In fact, Nuremberg would not have happened at all had it not been for the insistence of the Soviet Union.

A call for a special international tribunal

The Soviets took up the question of Nazi criminality early in the war—prompted by the brutality of the Nazi assault and occupation in places such as Kharkov (Kharkiv) and Kiev (Kyiv). In April 1942 Foreign Minister Vyacheslav Molotov published his “Third Note on German Atrocities,” citing evidence that the burning of villages and the massacre of civilians were part of a deliberate German plan. Six months later, in October 1942, Molotov publicly called for the convening of a “special international tribunal” and invited all interested governments to cooperate in bringing Adolf Hitler, Hermann Goering, Rudolf Hess, and other Nazi leaders to justice.

The United States and Great Britain were slow to embrace the idea of a special international tribunal. U.S. government officials worried about reprisals against American prisoners of war. British officials argued that the crimes of the Nazi leaders were far too serious for a trial and pushed instead for punishment by executive decree, without a judicial process.

And so the Soviets went down their own path. They did not join the London-based United Nations War Crimes Commission (UNWCC), which was defining “war crimes” narrowly as criminal actions “violating the laws and customs of war” as set out in the Geneva and Hague Conventions. Instead, the Soviets created their own war crimes commission, the Extraordinary State Commission. They gathered evidence of Nazi atrocities throughout the Soviet Union and began to stage their own war crimes trials, like the Krasnodar Trial of July 1943 and the Kharkov Trial of December 1944.

Soviet jurists

But this is hardly the whole story. For even as the Soviet Union developed its own approach to wartime justice, a Soviet-Jewish lawyer, Aron Trainin, substantially influenced the international discussion about war crimes through his writings. Most significantly, Trainin argued that a state’s leaders could and should bear individual criminal responsibility for planning and waging an unjust war of conquest.

Who was Trainin? How did his ideas about war crimes come to take on significance in the Soviet Union and abroad?

Aron Moishe Trainin was born in to a Jewish merchant family in 1883 in the town of Vitebsk in the Pale of Settlement (in present-day Belarus). He graduated from Moscow University in February 1909 and remained attached to its Criminal Law Department. Trainin did not join the Communist Party. But after 1917 he ably and eagerly served the new government.

Trainin’s ideas gained traction in the Soviet Union partly because of his ties to Andrei Vyshinsky, whom he met at Moscow University. Vyshinsky, who was born to a Polish Catholic family in Odessa and received a law degree at Kiev University, joined the Bolsheviks in 1920. He rose through the Party ranks, occupying various posts and distinguishing himself as a state prosecutor. He is best known for his role as the chief prosecutor in the Moscow Trials of 1936-1938—major show trials which Stalin used to take down his political enemies.

In the early 1930s, both Trainin and Vyshinsky held posts at Moscow’s Institute of Law. When the Soviet Union joined the League of Nations in 1934, Trainin worked with Vyshinsky to define a Soviet approach to international law.

Trainin wrote two books in the mid 1930s—Criminal Intervention (1935) and The Defense of Peace and Criminal Law (1937)—that criticized the League of Nations for failing to take on the problem of preventing “aggressive war.” Trainin conceded that the Kellogg-Briand Pact of 1928 had been an important step forward, but argued that it had not gone far enough. The signatories had renounced war “as an instrument of national policy,” but had not made the waging of war a punishable offense. Trainin ended his 1937 book with a call for the creation of an international criminal court to try “persons violating peace.” Vyshinsky attached his name to this work as its editor and wrote an introduction in which he suggested that all acts “infringing on peace” be the subject of a new international criminal law convention.

Trainin’s appeal and Vyshinsky’s proposal, issued as Hitler was preparing to march on Europe and as Stalin was launching his Great Terror, initially fell on deaf ears.

A response to German invasion

In 1940, Vyshinsky became Deputy Foreign Minister. Two years later, when faced with the urgent matter of dealing with Nazi war crimes, Vyshinsky looked to Trainin.

For Trainin, the ruthlessness of the Nazis toward civilians and the unprovoked invasion of sovereign nations seemed to require a reimagining of the law. He took up the question of criminal responsibility by asking several critical questions: What state actions during wartime could be considered punishable offenses under international law? What did international law have to say about atrocities committed during a war of aggression? What kinds of sanctions could be taken against the leaders of a “bandit” state that invaded other countries and made “a mockery of the principles and the norms recognized by civilized humanity” in pursuit of “predatory goals”?

Trainin’s answers, elaborated in a report for the Ministry of Foreign Affairs in July 1943 and then publicized abroad, would fundamentally shape the Allied approach to war crimes.

Trainin argued that the scope of the war was so overwhelming, and Nazi crimes against civilians so shocking, that it would be “unthinkable not to hold the perpetrators to account.” While the German state should face political reprisals and economic sanctions for these crimes, criminal responsibility, he argued, must be borne by individual perpetrators at all levels.

Rejecting the plea of “superior orders,” which was still a standard defense in international law,  Trainin argued that rank-and-file soldiers who murder civilians “on the orders of their superiors” were just as guilty as those who do so “of their own accord.” But Trainin insisted that the greatest degree of criminal responsibility belonged to Germany’s leaders. Here he called particular attention to Hitler and his ministers, the leadership of the Nazi Party, Nazi authorities in the occupied territories, the Wehrmacht’s High Command, and German financial and industrial magnates, noting their “grievous violations of the principles of international intercourse and human ethics.”

Most significantly, Trainin argued that Nazi leaders should be tried not only for crimes committed in the course of the war but also for launching a war of aggression in the first place. Here Trainin coined the term “crimes against peace” and defined it as: acts of aggression; propaganda of aggression; the conclusion of international agreements with aggressive aims; the violation of peace treaties; provocations designed to stir up trouble between countries; terrorism; and the support of fifth columns. He echoed Molotov’s call for the creation of a special international tribunal. And he proposed that “crimes against peace” be included in a new international-law convention.

Spread of Soviet ideas on crime of aggression

Soviet leaders publicized Trainin’s key ideas in radio broadcasts and news bulletins. Then in July 1944, they released Trainin’s report as a book, The Criminal Responsibility of the Hitlerites. Vyshinsky’s name again appeared as the editor. The timing here was everything. By late spring 1944, the Soviet Union had recaptured much of southern Russia and Ukraine, and German forces were in full retreat. That summer, the Red Army launched its most ambitious offensive of the war, retaking Belorussia and marching into Poland. The Soviets pressed the case for convening a special international tribunal.

Trainin’s book soon made its way across Europe to London, where it was translated into English and discussed by the members of the UNWCC. It was embraced by some UNWCC members like the Czechoslovak jurist Bohuslav Ečer, who also believed that aggressive war was the primary crime and who had become increasingly frustrated by the UNWCC’s more conservative approach. Using Trainin’s terminology, Ečer insisted that the “preparation and launching of the present war must be punished as a crime against peace.”

The term “crimes against peace,” which would have a profound effect on postwar justice, thus entered the international legal lexicon. In late October, Ečer presented the UNWCC with a detailed report on Trainin’s book. This report was circulated to the delegates, many of whom brought it back to their governments.A couple of weeks later, Ečer’s analysis was forwarded to the U.S. State Department.Soon thereafter, the State Department assessed Trainin’s book and sent it, along with Ečer’s analysis, on to the White House.

In early January 1945, two lawyers from the War Department’s Special Projects Branch, Lieutenant Colonel Murray Bernays and his colleague D. W. Brown, wrote a secret report for U.S. President Franklin Delano Roosevelt, addressing the question of whether starting World War II was a crime for which the Axis leaders could be tried and punished. They concluded that it was. This opinion completely broke from existing U.S. policy, they acknowledged, but the events in Europe demanded that international law evolve “with the growth and development of the public conscience.”

According to Bernays and Brown, regardless of earlier views on the subject, it could “not be disputed that the launching of a war of aggression today is condemned by the vast majority of mankind as a crime.” To support their position they referred to the “Soviet view” and discussed Trainin’s concept of “crimes against peace.” A formal declaration by the Allied governments calling out the criminality of aggressive war would “rest on solid grounds,” they concluded, and would itself take on the power of “valid international law.”

Trainin’s ideas had taken hold and would play an instrumental role in the development of a new body of international law.

Postwar justice

After the Allied victory in May 1945, when American and British leaders came around to the idea of a special international tribunal, Trainin was one of the two representatives that the Soviets sent to London to draw up the London Agreement and the Nuremberg Charter. He and Iona Nikitchenko (who would later serve as the Soviet judge on the IMT) negotiated with representatives from the United States, Britain, and France over the course of the summer. “Crimes against peace” was one of the three categories of crimes ultimately set out in the Charter’s Article 6, along with war crimes and crimes against humanity.

The representatives from the four major Allied powers came from different political systems with different legal traditions. But in formulating the London Agreement and the Nuremberg Charter they found common ground. The charge of “crimes against peace” became the linchpin of the entire trial and significantly shaped the Nuremberg model of justice.

Russia today

What does any of this have to do with the call for a new Nuremberg Tribunal to hold Russia’s leaders responsible for the invasion of Ukraine? Does it matter that the Soviet Union helped create the Nuremberg model of justice? Do we really need to know that it was a Soviet lawyer who introduced the concept of “crimes against peace”? Absolutely.

Putin has launched an aggressive war on Ukraine. The Russian military is bombing schools, hospitals, and cultural monuments in Kherson, Kyiv, Chernihiv, Kharkiv, and other Ukrainian cities—some of the same regions that the Wehrmacht targeted during World War II. There are numerous reports that Russian forces are intentionally shelling peaceful civilians trying to escape. In short, Russia’s leaders and generals are committing crimes against peace, war crimes, and crimes against humanity.

Putin and those in his inner circle have breached an international legal system that Moscow-based leaders and lawyers helped create after World War II. They have even cynically used the language of Nuremberg to try to justify unjustifiable actions, falsely accusing the Ukrainian government of carrying out the “genocide” of Russians.

While the International Criminal Court has the power to investigate war crimes and crimes against humanity committed on the territory of Ukraine, it is foreclosed from investigating the crime of aggression because Russia and Ukraine have not ratified the Rome Statute. This is where a new Nuremberg-like special tribunal would come in—either forged through an agreement at the UN or created independently by several states.

Putin is likely to denounce any such a tribunal as a Western invention. It is anything but that. The Soviet Union cooperated closely with the United States, Britain, and France to bring the European Axis powers to justice after World War II. In fact, it led the way. It pushed to convene a special international tribunal, introduced the concept of “crimes against peace,” and insisted on trying Nazi leaders for some of the very same crimes that Russia’s leaders are committing today. A full history of the IMT shows that the Soviet Union helped create international legal norms and the Nuremberg model of justice. If Putin is indicted and tried for launching a war of aggression against Ukraine, the world will have Aron Trainin partly to thank.

 

Photo: Iona Nikitchenko and Aron Trainin (center, center left) during deliberations at the London Conference, 1945 (United States Holocaust Memorial Museum, courtesy of Harry S. Truman Library. Photographer: Charles Alexander)

How the Soviet Union Helped Establish the Crime of Aggressive War

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