In the first part of a two-part interview, JURIST’s Managing Editor for Long Form Content James Joseph interviews Professor David M. Crane, the Founding Chief Prosecutor of the UN Special Court for Sierra Leone and a JURIST Board of Directors Member, on solutions and next steps to stabilize the conflict in Ukraine.
Professor Crane has proposed a stabilization plan has three main steps:
- Ceasefire – Agree to stop firing shots to de-escalate violence.
- Disengagement – Gradually pull Ukrainian and Russian forces 50km back from each other to create a 100km buffer zone.
- Deconfliction – Insert a neutral multinational peacekeeping force (led for example by a neutral power, such as India) in the buffer zone, then establish a committee to address grievances and build trust between the sides to facilitate eventual peace talks.
The overall goal is to balance power so no side wins or loses outright, provide “off-ramps”, and stabilize the situation enough over time (3-5 years) to negotiate a sustainable peace agreement after tensions decrease. Accountability would still be pursued through a separate multinational court process.
Professor Crane is also banned from Russia under a raft of sanctions applied to overseas nationals in September 2022…
James Joseph: Professor Crane, you have written widely about the need to end the stalemate in Ukraine and bring this conflict to a close, as well as options for a stabilization force or a multinational court to complement efforts to produce a Special Tribunal for Ukraine. But, to start—where are we in this conflict, on all fronts?
Professor David Crane: Well there’s a lot of distrust, and disappointment, as well as bad feelings in the air that the leaders of Ukraine and Russia are against the concept of diplomacy. But because of this critical mass of dust in the air, regardless of how this ends—Zelenskyy can’t lose this conflict, and Putin can’t win. And that is a very interesting approach, trying to bring this tragedy that was caused by the Russian Federation to end in a way that there is enough balance, that there is a pathway towards a more trustful coexistence because Ukraine isn’t going away and nor is Russia. So where does that leave us? The ideal world will be that Ukraine pushes Russian Federation forces out of the Donbas region, perhaps Ukraine; that’s Zelenskyy’s public statement. And of course, that is all fatal to Putin personally, because as a dictator, he cannot lose; if he does then he is finished. So that’s why I’m saying that Zelenskyy can’t lose. Putin can’t win, but also Putin can’t lose as well. So a pathway forward should Putin be not in the picture will be just again to stabilize enough to where we don’t slip them down a nuclear war circumstance.
The challenge here is that the fact that Putin gone could actually make it worse. He’s under a great deal of pressure from other high-ranking and more powerful people in the oligarchy who don’t think he’s doing enough, and it may even approach this in a more brutal way, which is going to be tragic for all of us. It will certainly end the world as we know it. So that’s why I came up with this idea. I’m a big proponent of justice and putting Putin in the dock, or at least indicting him which is more realistic. I don’t see a peace in the near future or even in the medium-term future. It’s unrealistic that Putin and Zelenskyy will sit down and call it a draw. But that’s why I came up with this stabilization plan to strike at least some type of balance that gives each of the parties and out or an off-ramp, enough to hopefully over a period of four weeks, three months, a year, two years, three years, a way by which a balance can be struck and that we can frame this in a more stabilized fashion.
Joseph: That is a really pragmatic way of going about it. There’s so much around how we obtain justice for Ukraine and what that means, and as you’ve rightly said before, and as a lot of proponents of the international system have said, this idea of a special tribunal is something we’ve not seen on this scale. We’ve seen special courts, we’ve seen hybrid courts, we’ve seen different mechanisms set up, but not a special tribunal in this format. You’ve previously spoken about the seven steps of setting up this tribunal. Would you be able to talk a little bit about those steps and where you think we’re at?
Crane: Well, again, being one of the persons in the world, probably the only person who has ever done this before, I look at this at a practical level, not as an academic, not as an altruist thinking that the rule of law is going to prevail and the world will be stable. I look at this since we have an aggression and look at the world saying that in 1938 we walked away and World War Two happened. I’m looking at the world’s democracies saying that we’ve got a head of state who commits an aggressive act flouting the UN paradigm who needs to be, at a minimum, indicted, and should he be handed over, he should be fairly and openly tried. But we have to send a signal to the dozen other dictators around the world to say this cannot continue.
Professor Crane’s comments here were unfortunately cut off. After communication between Joseph and Crane was reestablished, the professor continued by saying:
But the point was that we wanted to show the world that we can do this. At the time, there was a lot of hesitation because there just was. And I have found in doing this for a long time as to who doesn’t want it to happen or who is hesitant to do it, they ask a whole bunch of innocuous questions. “Well, if we do that this way, this can’t be done,” “How can we do this?” They just throw questions up in the air, to delay or to obfuscate. And so I put together the seven steps just to show the world that this is not the hard part. The hard part is getting the people to decide. Once you give the green light in seven steps within a year, we would have Putin indicted and then we would stand by to try him or not. I think the victory here is the indictment, not the trial, though that would be good as well.
Now what’s happened is the Israel-Hamas conflict has literally thrown the whole idea of the special tribunal for Ukraine and the crime of aggression out the window. It takes two-thirds of the UN General Assembly to agree to recommend to the Secretary-General to enter into a bilateral agreement with Ukraine and set up the special tribunal. That isn’t going to happen, and it won’t happen anytime soon. Sadly, the challenge is that if we don’t do this by November, then it’s all done. It’s over with, particularly if a certain individual is elected president. All of this will go by the wayside. So we’re pushing that this has to be done and in place before November of this year, or we’re out the window.
So, looking at the world in reality and practicality, I brought the group back together again and said let’s do something that is slightly different but the same result. Let’s create a multinational court for Ukraine on the crime of aggression, where a group of UN member states, centered around the core group of nations which has been meeting for over two years about creating an aggression tribunal, and have them by charter and statute create this multinational court. We provided that statute to the core group of nations just a couple of weeks ago, and it is being formally considered at the end of June. It would be an initiative by the Council of Europe and put together that way, with various nations, member states, joining a core group of 40-plus nations. Plus, we think we need to have more nations, 60 – 65 nations, to be a part of this and create the court to give itself the jurisdiction. It’s very much like they did at Nuremberg. The seven steps would still be largely in play. It would just be outside the UN General Assembly approach. But it would still be United Nations member states coming together and seeking accountability for the aggression.
Joseph: What is the consensus on this? We’ve seen a lot of hesitancy from so-called Global South countries, developing world countries on where we are with this because, largely, of Russian influence in such countries. Where is this now standing? Where is consensus now for any sort of mandate on ending Putin’s or Russian impunity?
Crane: There’s very little support in the Global South. They consider this a European problem. The only thing that we could hope for in the Global South is that there would be no objection or public disagreement with the creation of the Council of Europe-backed multinational court. But I think that we could certainly, realistically have 60-65 nations, most of the Council of Europe nations, as well as a dozen or so other nations around the world who have stepped up. We certainly have Japan and Costa Rica, who have already publicly come out with the support of the special tribunals, so we could assume that they would support the Council of Europe multinational court. But it’ll be European-centric, it’s just the way it is. But that’s fine with me as long as we have the ability to in fact indict President Putin for what he has done. And so we drafted the statute for the multinational court, myself, Ambassador David Schaeffer, Hans Corell, Irwin Cotler, as well as Richard Goldstone. The five of us created all of the modern courts and tribunals that were largely successful, so there’s a lot of credibility there related to putting something together.
Joseph: I think it leads on to my next question, which is slightly an academic one, but also has practical and legal ramifications. When you see the international consensus on this isn’t so broad and it is fairly Eurocentric, where does this stand in terms of international order and in terms of international hegemony on these things? We talk about a universal international system, which includes global south communities, and we’ve often seen that there’s criticism of that system being too Eurocentric, too Western-centric. When we have little consensus on such a large issue, such as Putin’s aggression in Ukraine, where does that stand, those communities, in terms of their ability to uphold the international system?
Crane: Well, the whole international system is in jeopardy. The whole concept of why we have the United Nations is in jeopardy. If we do nothing, then the question is big. Why do we have the United Nations? It was set up to avoid the very thing that you and I are discussing right now. If the UN can’t do anything about this, either member states or the UN General Assembly, then we are in trouble related to a concept called the United Nations after almost 80 years. It’s one of those things where the world has to come to the reality that regardless of where you are in that world, you’re going to have to understand that world order as we know it will be done if nothing is done. The reality is we’re not going to have a full consensus.
But you know, the nice thing about a multinational court, and one that is I think valuable, is that nations don’t have to directly be involved, but they can indirectly be involved. Most people don’t realize Nuremberg was put together by four powers, but there were many observer nations in the audience supporting Nuremberg by just being there. So the support doesn’t have to be indirect support related to this. I think that in some ways, I know this is a trite phrase, but “build it and they will come.”
The United States is dead set against this, and because of that the United Kingdom is kind of wobbly about it. Germany and France are wobbly about it. The United States does not want to see an aggression tribunal of any sort because they are very much aware that they committed the same type of aggression in Iraq. This is constantly being thrown in my face, because being an American, they like to remind me of that. But the bottom line is, we can’t deal with today’s problems by dwelling on the past. I tell them, “Yes, it was an aggressive act. It should have been dealt with at the time.” If you think this through, there was no jurisprudence on aggression. The modern concept of aggression has never been prosecuted. At Nuremberg, it was “crime against peace.” So the bottom line is that there was no law in 2003 to do anything about that. Now granted, one could cobble together and hold the US liable, but the US is not for this. That’s been my experience because I had the same opposition by the United States when I took down Charles Taylor. They didn’t like it either.
But my comment was and comment today with two other colleagues is “Don’t worry about what the United States think, think about getting this done.” It turns out that when you step over the US and move forward, they tend to follow along and get on board because, as a matter of reality, they don’t want to be on the wrong side of the fence. So at the end of the day, they were furious with me and then they love me and then they helped me get Charles Taylor and the rest is history. But the bottom line is they’re very problematic in this and they’re causing all kinds of delay but I sense a movement that we are moving a lot closer to the reality of a multinational court than nothing happening. So, you know we’re waiting to be seen, but this is also critical.
Hence also my discussion related to a stabilisation force. That’s why I proffered a stabilisation approach and that is something that actually is doable. In fact, Putin just last week said that he would be interested in a ceasefire. The challenge is, I’m not sure he can do that. He has a lot more control than Zelenskyy. For Zelenskyy to agree to a ceasefire could be politically a problem for him. But we did this in the Sinai, we brought mortal enemies, Egypt and Israel. I was the Legal Adviser to that, and we put a group of neutral nations in between them, and now Egypt and Israel, even with the challenges in Gaza haven’t fired a shot at each other since the 1970s. So that’s why I proffered a way to disengage and to have a neutral group. And I think India would be a perfect center point in this, asking India to head a multinational force of neutral nations to go in and to insert themselves in between the two parties. I think that at least that way, nobody wins, nobody loses. And it may be politically palatable to both Ukraine and Russia.
You know, these are two boxers who are not going to give up, and one of them is going to have to go down. But Putin has to realize, even though it’s shaky, and that NATO is wavering, I really don’t think at the end of the day, they’re going to allow Ukraine to be absorbed by the Russian Federation. Putin knows this and so all he is trying to do is have some kind of ability to go to the Russian oligarchs saying, “Okay, we’ve taken a bite out of Ukraine, and that’s going to have to be good enough” in a way that he can go back and say, “we didn’t win, but we didn’t lose either.”
