The war in Ukraine has witnessed to date the worst war crimes and crimes against humanity since the Nazi invasion of Europe and the Soviet Union during World War Two. The relentless Russian targeting of civilians has reached unprecedented levels with zero regard for the Geneva Conventions. The prosecution of Russian perpetrators has yet to reach anything like the level required to match the largest estimated number of war criminals since the Nuremburg war crimes trials at the conclusion of World War Two. At the International Military Tribunal in 1945 the United States played the leading role with the United Kingdom. I have written about the last surviving US Nuremberg prosecutor in an earlier Letter, the 102 years old Benjamin Ferencz (born March 11, 1920), one of the greatest ever exemplars of the rule of international law. Both he and I have been critical of the United States' failure to join the International Criminal Court (ICC) and sign in full the United Nations Convention on the Law of the Sea (UNCLOS). The United States does recognize UNCLOS as the legitimate body of "Customary Law" with regard to the Law of the Sea, though not a full signatory. This places the United States in my opinion in a somewhat equivocal position when Russian war crimes are hopefully pursued in earnest.

Please recall that the worst of the Nazi war criminals were duly executed at Nuremberg. The United States Congress has argued that only a US Federal Court, not the ICC, can prosecute an American citizen who may be accused of war crimes or crimes against humanity. Hence the American aversion to joining the ICC and having US judges sitting in The Hague with the other judges from the signatory states.

The ongoing serious global grain crisis precipitated by Russian actions in the Black Sea preventing the free flow of shipping internationally, and particularly to those nations desperate to receive Ukrainian grain, raises critical questions about the enforcement of UNCLOS. Many of the ships involved are not Ukrainian, rather flags of convenience under traditionally well known nations that provide the necessary insurance and legal protection for such vessels. In addition organizations such as Lloyds of London have significant insurance interests in many vessels. The Russians are guilty under UNCLOS of deliberately violating the basic laws of the sea. This raises the fundamental question about how should the United States and its allies, together with the many third party nations involved, either as recipients of grain or shipping flag carriers, respond in positive and decisive ways to challenge the Russian blockade. The NATO allies have extraordinarily powerful naval forces in the Mediterranean, led by the United States Sixth Fleet. Turkey, Greece, Italy, France, Spain, Portugal, and the United Kingdom's Royal Navy combine with the US Sixth Fleet to present a powerful challenge to Russian violations of UNCLOS. In 1962 President John F. Kennedy did not hesitate in challenging Soviet aggression with regard to the Cuban missile crisis. The countervailing power used was maritime, the United States Navy, that challenged the Soviet Navy. In addition the non aligned nations whose ships are involved can help by requesting protection. The Montreux Convention is an inhibiting factor in controlling naval movements through the Bosporus and the Dardanelles Straits in Turkey. One possibility is using a land bridge for grain exports across Ukraine to Poland and then onwards to various potential ports for export, a far less confrontational solution.

How can Russia and its leader be held accountable for war crimes? What should the United States do? The Russian subterfuge of launching an attack because of a supposed Neo Nazi regime that was persecuting Russian speaking minorities is clearly without basis. The so called "Special Military Operation" that followed was an evil war of attrition against not just the Ukrainian Army, but the whole civilian population, with appalling consequences. The refugee crisis that ensued has resulted in the worst since World War Two, with the United Nations High Commission for Refugees estimating in excess of three million Ukrainians being forced to flee their country. The High Commissioner, Filippo Grandi, has gone so far as to say the number may in fact exceed ten million, an unconscionable act on the part of Putin's Russia.

The Ukrainian government has filed with the International Court of Justice proceedings against Russia under the Convention on the Prevention and Punishment of the crime of genocide. In the United States Attorney General Merrick Garland has set up within the Justice Department a new "Accountability Team" to identify and prosecute war criminals in Ukraine. This will be led by Eli Rosenbaum, who has a distinguished background in tracking down Nazis. Back in February the Chief Prosecutor of the International Criminal Court, Karim Khan, QC, indicated that he was opening a formal enquiry into Ukrainian war crimes. 39 countries that are parties to the Rome Statute petitioned the ICC to begin an investigation. Eccentric readers should recall that the ICC is a permanent international criminal court located in The Hague, Netherlands. The key Rome Statute covers four core crimes: genocide; crimes against humanity; war crimes, and crimes of aggression. There are 123 ICC member states. Although Ukraine, like Russia, signed the Statute but did not ratify it, Ukraine has issued a Declaration under Article 12(3) granting the ICC jurisdiction. The Ukraine sought similar intervention by the ICC in 2014.

There is a huge task ahead to collect evidence, locating witnesses, and locating and arresting defendants. The ICC does not try "In Absentia", so unless Putin travels to an ICC signatory country he cannot be arrested even if an arrest warrant is issued. The quality and quantity of evidence is going to very tough to assemble given the refugee situation, lack of formal records, and the overall infrastructure breakdown in Ukraine. Prosecution of senior Russians is going to be very difficult. The issue of those who committed atrocities and those who gave the orders is ever present. ICC case law shows that soldiers on the ground who commit atrocities can be held criminally liable for the actions of those who commanded them, though the ICC burden of proof is significant.

It is possible that the United Nations Security Council may create a special tribunal for Ukraine, with Rwanda and Yugoslavia as precedents for special International Criminal Tribunals. Similarly special courts have been established to address atrocities in Cambodia (the Khmer Rouge), Sierra Leon (during the civil war), and crimes committed in Kosovo 1998-2000.

The Russians have not been deterred by the threat of ICC legal action since the February 28 announcement by the ICC. They continue to commit appalling atrocities, such as the March 9 attack on the Mariupol hospital.

Putin is certainly isolated legally and morally. The actions of the ICC, and the 39 states in support of war crimes investigation and prosecution, may not be sufficient to bring a cease fire and, at this stage, peace. However it is very clear that the ICC now has a clear path to relentlessly ensure that over time all those Russians responsible for heinous crimes in Ukraine are brought to account, and stand trial in The Hague. Eccentric readers join with me in wishing the ICC, and all the international law enforcement agencies involved, all success in bringing to justice those who have committed the most appalling crimes.

Editor's Note: On a cheerful note readers should be aware that Anthony Wells' "Tomato Drive-In" on The Plains Road at Half Way is open. Dr. Wells was called to the Bar of England & Wales as a Barrister of Lincoln's Inn in 1980. He has an abiding interest in International Law and the Law of the Sea.