Momentum Grows on Special Tribunal to Prosecute Putin’s Aggression in Ukraine

With the anniversary of the full-scale invasion of Ukraine around the corner, several European countries are nearing a consensus to set up a special tribunal to prosecute Russia’s leaders, including President Vladimir Putin, for the crime of aggression. Ukrainian officials have been calling for an ad hoc court since the early weeks of the invasion, with Prosecutor General Andriy Kostin, during a recent visit to the U.S., describing such a tribunal as “the most feasible and efficient route for accountability” and a way to “restore the world order.”

While it remains unclear what a potential tribunal will look like in practice and under whose authority it will be established, diplomats and legal experts are actively discussing different scenarios. Many of them have coalesced around a short-term proposal for an interim prosecutor’s office tasked with gathering evidence for a potential future trial, jump-starting the judicial process even as the specifics of where and how the prosecution might take place remain to be defined. Earlier this month, at a joint press conference with Ukrainian President Volodymyr Zelenskyy, European Commission President Ursula von der Leyen announced the establishment of an international center for the prosecution of the crime of aggression in Ukraine to be set up in The Hague and tasked with gathering evidence in support of a potential future prosecution. The center, von der Leyen added, would be a part of an ongoing joint investigation team effort, a European Union framework for international cooperation on criminal justice matters.

The announcement marked a significant shift from the hesitation that characterized early talks about a special tribunal for Ukraine.

“At least within the European Union, the political will is getting there. I think everybody acknowledges the moral, political, and also legal need to hold the top Russian leadership accountable for the crime of aggression in Ukraine,” a Northern European official involved in the negotiations told The Intercept, speaking on condition of anonymity to discuss ongoing diplomatic efforts. “Clearly, six months ago, we were more focused on war crimes and crimes against humanity, and now we’re kind of admitting the accountability framework is incomplete if we don’t at least try to do something about the crime of aggression.” But the official added, “Of course, this cannot be done by the European Union by itself, we need a broader coalition. The ad hoc international tribunal will not happen without U.S. support, for sure.”

The U.S. State Department has so far been more cautious, though people close to the deliberations expect the Biden administration will at a minimum throw its support behind the plan for the interim office in the Netherlands.

At a panel discussion with Kostin earlier this month, Beth Van Schaack, the State Department’s ambassador-at-large for global criminal justice, made no commitments but signaled the administration’s openness to the various proposals on the table. “We haven’t seen a full concept note yet for it, but it seems like those sort of interim steps are important to be taken while we work out the details on where the crime of aggression might ultimately be prosecuted,” Van Schaack told The Intercept, referring to the interim prosecutor’s office. “So it preserves the evidence now while it’s still fresh, and gets the process started.” She suggested the U.S. was also open to the proposals currently being debated for an ad hoc court. “We’re still looking at the different models. They each have pluses and minuses associated with them,” she said.

As evidence of widespread crimes committed in Ukraine mounted over the last year — Kostin said his office has  “65,000 registered incidents of war crimes” — multiple judicial processes were launched, including prosecutions at the local level and investigations by several European countries, as well as by the International Criminal Court. But there is no existing legal mechanism with jurisdiction over the crime that has enabled all others: the act of aggression that began when Russian forces invaded Ukraine on multiple fronts last February 24. The ICC is prevented from prosecuting aggression in this case because Russia, which is not a member of the court and holds veto power on the United Nations Security Council, would certainly block such a move — a limitation imposed on the court’s founding authority by countries including France, the U.K., and the U.S.

As The Intercept reported before, countries that have been supportive of Ukraine, and of efforts to investigate war crimes and crimes against humanity committed there, have until recently hesitated to respond to the call for a special tribunal, largely over political considerations and because of the precedent that prosecuting Russia’s political leaders would set for political leaders in other countries.

During his Washington tour, Kostin, the Ukrainian prosecutor, nodded to the many reservations and arguments against the special tribunal he has heard since first calling for it. “Our communication about the ad hoc special tribunal several months ago was not easy,” he said. “At the end of the day, I said, ‘Look, starting from February 24, Ukrainians believe in the unbelievable. We are in a difficult condition, but we are optimistic.’”

He added, “History taught us well: It is the waging of aggressive war that leads to war crimes and other mass atrocities. Therefore it is crucial not only to end the act of aggression, but also to hold the masterminds of this supreme international crime fully accountable.”

Double Standards

Still, the advancing prospect of an ad hoc tribunal for Ukraine has renewed long-standing criticism that international justice mechanisms are tilted in favor of a few powerful countries — a criticism that has undermined the ICC’s legitimacy since its founding.

Reed Brody, a human rights attorney specialized in mass atrocities and author of “To Catch a Dictator,” stressed that the only reason a special tribunal might be necessary for Ukraine is that countries now calling for it restricted the ICC’s jurisdiction over this crime. “People talk about a gap and a loophole. Well, how did that gap get created? It was purposeful,” he told The Intercept. “You have to balance, is it better to have some justice at the cost of consecrating double standards? I’m not sure that everyone understands how toxic this justified perception is that international justice only kicks in against, you know, enemies or outcasts or low-value countries.”

Asked about the extent to which concerns over double standards have hindered discussions over a special tribunal for Ukraine, Van Schaack told The Intercept “very little.” She added, “The reality is that Russian aggression is so egregious, it’s such a clear and manifest violation of the U.N. charter. And the conduct of the war is so different from anything that we have seen really since World War II, and maybe the dissolution of the former Yugoslavia.”

Kostin, the Ukrainian prosecutor, also dismissed those concerns.

“I don’t want to spend time discussing the past. We can talk about the double, triple standards in the history of many countries, many organizations, but we have no time for this,” he told reporters during his U.S. visit. “After the war, when we win, we will have time to analyze, to discuss and to find out what has happened before.”

“We can’t leave the situation as it is,” he added. “If an aggressor starts an aggression and there is no valid, effective instrument to punish them, we need to invent this instrument together and punish the aggressor. Not only for this aggression, but to deter any other aggressor in any other place or time in the future.”

Building an Airplane on the Runway

Despite significant momentum, much remains unclear about how a special tribunal for Ukraine will come into existence, and under whose authority.

One option, favored by the Ukrainian government, would be to set up a fully international court, similar to that set up for the Nuremberg trials after World War II. Because Russia sits on the Security Council, where it would certainly exercise its veto power, the proposal might be put to the U.N. General Assembly, where it would need the support of a majority of countries. That’s something that’s never been done before — and experts disagree on whether the UNGA would have the authority to request that the secretary-general establish such a tribunal along with the Ukrainian government. Alternatively, an international tribunal might be established through a different body, like the Council of Europe, the European Union, or through a group of individual states.

Another option would be to set up a hybrid tribunal that would bring together elements of the Ukrainian judicial system and international ones. While that might be easier to set up, such a tribunal would be limited by the immunity that heads of state enjoy against prosecution by foreign states’ courts — something that wouldn’t be an issue with a fully international tribunal. There are more legal questions at stake, and, for months now, international experts have been debating the various scenarios. “I don’t think anyone has a clear-cut answer because it has never been done before,” the European official said. “Nothing in international law happens overnight.”

Prosecuting aggression — as unlikely as it remains that Russian leaders would recognize any process as legitimate and that Putin and other top leaders might see a day in court — is only one of several justice mechanisms underway, which also include more than 250 Ukrainian-led prosecutions that have already resulted in 25 convictions. On that front, too, Ukraine represents a departure from the norm when it comes to war crimes, which more often go uninvestigated for years, if they are ever investigated at all.

“This is really a unique situation. The more common scenario that we have seen many times over is what happened in Syria or in Myanmar, where you have neither an international option for accountability or domestic international options have been foreclosed,” Clint Williamson, the State Department’s ambassador-at-large for war crime issues, said at the event with Kostin. Williamson cited the Security Council’s veto power as a frequent obstacle to international efforts, as well as the lack of functional mechanisms or political willingness at the local level as countries’ own leadership is often behind the crimes, as is the case in Syria and Myanmar. “More often, what we see is a historical effort to go back, reconstruct evidence, and build cases months or years after the fact.”

In Ukraine, on the other hand, the accountability process is already in motion while the conflict and the crimes are ongoing. That’s presented a number of challenges — but also a unique opportunity to deliver justice. “I think that we have to be realistic that it’s going to be very challenging to get Russia to pay for the damage that they have caused,” Williamson told reporters. “But that’s not a reason not to do this. So I think it is important to try to pursue this and to try to build consensus on the right way to do it.”

Van Schaack quoted a colleague who compared the efforts to “building an airplane while you’re on the runway, taking off.”

“I think in many respects, this is remaking the field,” she said. “It really is a brave new world of international justice.”

The Elephant in the Room

So far, much of the debate about a potential special tribunal for Ukraine has been limited to European countries and the U.S. But setting up a truly international tribunal, particularly if under the auspices of the U.N., will necessarily require a broadening of the conversations to other countries, including some that hold deep reservations about questions of immunity, as well as those that perceive international justice mechanisms, like the ICC, as mired in double standards.

Critics have often referred to the U.S. and U.K. 2003 invasion of Iraq, which was not approved by the U.N., as the most obvious example of that. Former British Prime Minister Gordon Brown, who had been supportive of the invasion of Iraq, has become one of the U.K.’s most vocal proponents of a special tribunal for Ukraine — with some condemning his call to prosecute aggression in Ukraine as hypocritical.

“This will definitely kick in once we enter real negotiations at the U.N. level,” the European official said. “That is the elephant in the room. … I think that’s in the back of the head of many people.”

“But there are a lot of war crimes and crimes against humanity, even potentially crimes of genocide, that are likely to go unpunished and that are not being investigated properly,” the official added. “The fact that we maybe cannot prosecute every perpetrator is not an argument for stop doing what the ICC is doing, for example.”

Brody, the human rights lawyer, told The Intercept that it is “somewhat unseemly for people who invaded Iraq to talk about a tribunal.” At a minimum, he added, echoing a proposal raised by several countries, “people should put their money where their mouth is, and if they want to do this, they should amend the Rome Statute of the ICC.”

“I’ve spent my life working with victims. I know the importance of getting any justice that you can, and none of the African victims I’ve ever worked with have said, ‘No, we don’t want justice until you can bring George Bush to trial,’” Brody added. “But also as someone who’s spent the last 25 years working in Africa, I know how toxic it would be to the whole international justice project if the very states that fought for and imposed a limitation on the ICC’s jurisdiction to investigate aggression would now establish a tribunal for aggression for Ukraine.”