Ukraine Warns the World: It’s Now or Never for Prosecuting Putin

President Vladimir Putin of Russia, Feb. 14, 2024. A hard-core group of countries headed by Ukraine has been trying to set up a special court to try Putin for the crime of aggression. But a larger group of countries, led by the United States, wants a lesser version of such a tribunal. Frustrations are mounting in the first camp as Russia’s full-on war in Ukraine grinds into its third year. KREMLIN PHOTO

By Dawn Clancy via PassBlue

As the United Nations marks the second year of Russia’s full-scale invasion of Ukraine this week, big-power politics are still blocking the creation of an international special tribunal to prosecute the crime of aggression by Russia’s top leaders for their deadly actions against their neighbor. The resistance to such a court could weaken the backbone of international law and the ideal of a rules-based world order, leading to a “real tragedy,” as one expert put it.

“The world is at the critical juncture,” said Yurii Bielousov, the head of Ukraine’s war crimes department in the prosecutor general’s office, in an email to PassBlue. “The longer the international community delays [an international tribunal] the closer we all come to the point of no return, where the rule of force prevails over the rule of law. We cannot afford to delay.”

Yet the early momentum to establish a special court, which was prompted when Russia launched its invasion against Ukraine on Feb. 24, 2022, has stalled, to the consternation of its most persistent advocates. One problem is major Western leaders in the discussions are deeply distracted with another devastating war: Gaza. Additionally, in Ukraine, its counteroffensive in nearly the last year has been disappointing by most accounts. Russia’s recent taking of Avdiivka, a city in Ukraine’s Donetsk region, further reflects the lack of progress on frontline battles by Ukraine.

“We have a Security Council permanent member who is continuing its full-fledged, unprovoked genocidal aggression against its neighbor,” said Rein Tammsaar, Estonia’s envoy to the UN, referring to Russia. “Either we act, or we don’t.”

Considered the “mother of all crimes” by the international justice community, the crime of aggression is recognized as the atrocity that makes all others — including crimes against humanity and genocide — possible.

It’s the United States and some of its closest Group of 7 allies, like Britain and France, who are using their political might to push for a lesser version of such a court, according to a source familiar with discussions who requested anonymity because of the sensitivity of the negotiations. The US and its allies’ model of a court to prosecute, say, Vladimir Putin, the president of Russia, while he’s in office for the crime of aggression would be incapable of carrying out such a trial, some experts say.

With Estonia and Ukraine, Liechtenstein and the other two Baltics — Latvia and Lithuania — make up the tight-knit group of advocates insisting on an international court. They envision it being endorsed through a resolution in the UN General Assembly. The legal experts from these countries argue that this path would remove the immunity privileges that protect heads of state while in office, starting with the prosecution of Russian leadership, known as the troika. That would include not only trying Putin but also Russian Defense Minister Sergei Shoigu and Foreign Minister Sergey Lavrov for the crime of aggression.

The cohort of early advocates now encompasses a “core group” of international legal experts from 40 countries, mostly Westerners and Japan, with a few from Latin America, such as Costa Rica and Guatemala. The core group has been meeting regularly since January 2023, puzzling through the legal issues that could impede the creation of an international or a hybrid tribunal, the other main proposed model. This model, also called an “internationalized national” court, would be rooted in Ukraine’s domestic courts and feature international elements. The US heavily favors this model.

Another model being kicked around recently by the core group is a tribunal created by the Council of Europe, which upholds human rights, through a bilateral agreement with Ukraine.

Milena Sterio, an international law professor at Cleveland State University, in Ohio, said that unlike the General Assembly option, the other models being discussed by the core group suffer from the same flaws: they do not solve the problem of immunity.

The US and some of its closest allies refuse to agree to a special international tribunal because it could expose the US and the other G7 heads of state to being tried for the crime of aggression. (Besides Britain, France and the US, the G7 consists of Canada, Germany, Italy and Japan plus the European Union.)

“If you want to prosecute Putin or Lavrov for aggression [while in office], the court would have to be international in order to get over this principle of head of state immunity and neither of these tribunals would be seen as international,” Sterio said in an interview with PassBlue.

An internationalized national tribunal — the hybrid version — “would receive support from the international community, but it would still be a domestic tribunal,” Sterio added, noting that “the Council of Europe proposal would really be a regional approach,” while both “could suffer from legitimacy issues.”

Another sticking point for creating an international tribunal based on any multilateral treaties among states is that except for a court mandated by the UN Security Council, Russia, according to Jorg Polakiewicz, the legal adviser for the Council of Europe, could in principle choose not to comply.

“Even if they are 50 or 60 states or more joining such a treaty” establishing a court, that “cannot create obligations for third parties [such as Russia] that are not party to the treaty,” Polakiewicz said.

Russia, a permanent member of the Security Council, would veto any attempt to create a court through the body.

PassBlue contacted Beth Van Schaack, who is the US ambassador at large for global criminal justice and is involved in the core group discussions, for comment but did not hear back in time for publication.

One person familiar with the core group described the current political jockeying in the discussions as “frustrating,” most notably for Ukraine, whose longstanding ambition is to prosecute Putin for orchestrating the brutal and bloody war raging on its soil as he remains president.

“If [Putin] succeeds and again enjoys impunity, other dictators in different parts of the world will follow his example. And we will get a world where it will be dangerous for everyone without any exception,” Oleksandra Matviichuk, a human rights lawyer and Nobel Peace Prize recipient, wrote in an email to PassBlue.

“Justice in this war is important not only for the Ukrainian people,” she added. “I think we need to honestly explain this to people in other countries.”

Anton Korynevych is a Ukrainian lawyer based in Kyiv, the capital, and the ambassador at large in the country’s ministry of foreign affairs. While speaking at a conference in London on Feb. 1, focusing once again on establishing a special tribunal for the crime of aggression, he said the “solution cannot be postponed.”

“The solution cannot be the one which will not be satisfactory for the goal and the goal is to try Russian top political and military leadership for the crime of aggression,” he added.

Since January 2023, the core group has met seven times. Its next meeting is scheduled for March in Vienna, where discussions will continue but pressure is building for more concerted action.

Polakiewicz of the Council of Europe described the core group as “informal” and sees its process as “valuable.” Yet he says it is time for the members to move beyond the talk-only phase.

“We are all now well aware of the differing positions, and we know that not all members agree on all aspects, but there is broad consensus that something must be done when faced with such a blatant violation of international law,” he said. “So, I think now there should be the phase of more conclusive discussions.”

Tammsaar of Estonia said in his interview with PassBlue that “With our colleagues in the core group, we’ve been able to agree on some issues. But when it comes to the core of the core, we are not able to make progress. I’m afraid maybe that we are not moving in the right direction.”

Estonia and its Baltic neighbors share long borders with Russia and were occupied by the Soviet Union for five decades, from 1940-1991. Given the Russian invasion of Ukraine, which began in 2014, the Baltics view such an aggression as a threat to their very existence.

“There can’t be full justice if aggression goes unpunished and the masterminds of the whole thing, and we know very well who is the mastermind, is enjoying immunity,” Tammsaar said, referring to Putin.

“Without accountability, we will see new crimes by Russia; history tells us this,” he continued. “And as our first president [Lennart Meri] once said, international law [if upheld equally] is a nuclear weapon of a small states,” as they are likely to be the first to suffer if international law or the UN Charter is “trampled.”

Tammsaar said that since Russia’s full invasion of Ukraine began on Feb. 24, 2022, the momentum for a special tribunal has been lost as the number of global conflicts has increased. The most notable shift occurred on Oct. 7, when Hamas attacked Israel.

“If we [were] united in the very beginning, and if our big allies would have put a weight behind it back then I think we would have a tribunal already,” he said.

But while politics may ultimately prevail, Oona Hathaway, a professor of law at Yale Law School in New Haven, Conn., said she wasn’t “declaring defeat just yet.”

“Let’s imagine that this doesn’t come together,” she said, referring to the special court. “There is this question as to whether this could create some fire under the movement to get rid of the exception for jurisdictional exceptions in the Rome Statute itself, which, of course, is the reason that we’re kind of in this fix in the first place.”

The Rome Statute treaty established the International Criminal Court (ICC). Based in The Hague, the court prosecutes genocide, war crimes and crimes against humanity committed on the territory of the member states who have ratified the treaty.

But, Hathaway added, “The crime of aggression is different from the other crimes, as you can only be prosecuted for committing a crime of aggression [by the ICC] if the [member state] is a party to the Rome Statute and if they’ve agreed to the amendments to the Rome Statute that create the definition of the crime of aggression.” Neither Ukraine, Russia nor the US is a party to the ICC.

Ratifying the Rome Statute would be a “heavy lift,” Hathaway said, but “if the international community can’t provide for accountability in some form, whether through the ICC, or through the Rome Statute, or a special tribunal, then I think we really are failing the modern legal order. And, I think that’s a real tragedy.”

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