What follows is a model of a criminal indictment against President Vladimir Putin for the crime of initiating and executing a war of aggression against Ukraine. The indictment represents the type of document international war crimes prosecutors or national prosecutors could file before an international or national court.
The model indictment proceeds using the definition of aggression under international criminal law as set out in Article 8bis of the Rome Statute to the International Criminal Court (ICC). The ICC does not have jurisdiction to prosecute the crime of aggression in this scenario, but we draw on the Rome Statute definition because it is one of the most narrow definitions of the crime of aggression and because it was carefully drafted to ensure that it does not go beyond existing general customary international law. Notably, the Russian Federation’s current Deputy Permanent Representative to the United Nations, Gennady Kuzmin, affirmed that Russia was satisfied with this definition of the crime. The scope of the offense in the model indictment is also consistent with the definition of aggression set forth by the UN General Assembly in 1974, and the key features of the crime of aggression under a range of domestic criminal codes including Ukraine, Russia, and Belarus.
The crime of aggression was first defined and prosecuted at the Nuremberg Tribunal. Diplomats and lawyers from the Soviet Union were vital in this endeavor. In her book, Soviet Judgment at Nuremberg, historian Francine Hirsch writes, “The idea of bringing Nazi leaders before an international tribunal was forged in the Soviet Union.” Indeed it was Soviet lawyer Aron Moishe Trainin who laid the conceptual groundwork for the definition of the crime of aggression.
The Nuremberg judgment considered aggression the supreme crime: “To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
The evidentiary basis underlying this model indictment is limited to available public sources. For that reason alone, the counts listed against President Putin focus on the acts of “initiating” and “executing” Russia’s war of aggression against Ukraine. Without doubt, access to non-public materials would establish a sufficient basis to believe that President Putin also committed the acts of “planning” and “preparing” for aggression.
The indictment is also limited to President Putin. It should be understood, however, that the definition of the crime of aggression in the Rome Statute could also potentially apply to other senior Russian officials who were in a “position effectively to exercise control over or to direct the political or military action of a State.” The Rome Statute definition could also potentially apply to President Alexander Lukashenko and other senior Belarusian officials for “action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State.”
The Model Indictment is available as a PDF Scribd below and also as a separate PDF.