Prosecuting Putin: Creation of a Special Tribunal for Russian Aggression

[Emily Mullin is a legal intern and lead of the Ukraine Advocacy Initiative at
Genocide Watch.]

[Dr. Gregory Stanton is the founder and president of Genocide Watch and the Chair of the Alliance Against Genocide.]

Overview

Since Russia’s aggression against Ukraine, international lawyers have discussed creation of a Special Tribunal for the crime of aggression. Philippe Sands proposed the idea in the Financial Times just four days after the Russian invasion. Two years later, progress to create a tribunal has been slow but promising. On June 26, 2024, the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution entitled “Legal and human rights aspects of the Russian Federation’s aggression against Ukraine.” It outlines a proposal for a special tribunal to prosecute Russian aggression dating back to Russia’s 2014 annexation of Crimea and the separatist wars in Luhansk and Donetsk.

Since 2022’s full-scale invasion, the hardship inflicted on Ukraine’s population has only intensified. Russia has committed war crimes, crimes against humanity, and genocide. Russia has inflicted indiscriminate attacks on civilians and civilian objects, such as health-care facilities, schools, energy infrastructure, and cultural property. Russian troops have committed torture, wilful killing, rape, and sexual violence against Ukrainian civilians and prisoners of war. Russia has forcibly transferred Ukrainian children to Russia, in direct violation of Article 2e of the Genocide Convention. Ukraine is fighting a defensive war against aggression combined with Russian genocide. The Kremlin’s stated intent has been to destroy the Ukrainian nation and ethnicity.

In response to Russia’s crimes, Ukrainian President Volodymyr Zelensky outlined a proposal for peace on October 11, 2022. He highlighted the need to promote justice for aggression through global accountability mechanisms, including an international court. Since the idea of a special tribunal for aggression was first put forward, international legal scholars have debated various methods to create the court. (See e.g., Carrie McDougall, Kevin Jon Heller, Tom Dannenbaum). The options have included creation by a bilateral agreement between Ukraine and the United Nations (the  “hybrid model”), establishment through a treaty with a regional organization like the European Union or the Council of Europe (CoE), a national tribunal established in Ukraine’s judicial system, or establishment under the International Criminal Court (ICC).

The most likely institution to create a tribunal is the CoE. An informal coalition of 40 states, known as the “Core Group,” has been meeting regularly to plan a special tribunal. On April 30, 2024, the Committee of Ministers of the CoE authorized the Council’s Secretary General to prepare a draft agreement between the Council and Ukraine to establish a tribunal.

Throughout negotiations, tensions have centred around the legal form the tribunal will take, particularly regarding its international character. The US and some European countries have called for a “hybrid” model embedded in Ukraine’s judicial system. Ukraine favours a court with international jurisdiction. Ukraine’s desire for an international tribunal is based on the fact that a “hybrid” court formed under Ukrainian law would encounter legal obstacles in overcoming the immunities of heads of state, government leaders, and ministers of foreign affairs, otherwise known as the “immunities troika.”

Domestic vs International Tribunals & the Problem of Immunity

In international law, government leaders are generally protected from prosecution in foreign domestic courts while in office based on the par in parem non habet imperium principle of sovereign equality, which prevents countries from standing in judgment of one another. However, this is not the case before “certain international criminal courts,” where heads of state enjoy no such protection, as stated by the International Court of Justice’s (ICJ) Yerodia Judgement.

The reason for disregarding immunities before international courts is that they “do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole.” The Yerodia ICJ Judgement was followed in the ICC Appeals Chamber’s Al-Bashir Judgement. Although government officials cannot invoke immunities before international courts, there remains the problem of determining which courts can be considered “international.”  

The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwandawere both considered international tribunals that could automatically set aside immunities. This was because they were created through United Nations Security Council (UNSC) resolutions under Chapter VII of the UN Charter, which imposes a cooperation obligation on all UN member states. Because of Russia’s UNSC veto power, Ukraine does not have the option of UNSC authorization to establish a special tribunal

The Appeals Chamber for Special Court for Sierra Leone (SCSL) was also considered an international court capable of nullifying the personal immunities of a head of state. Established through an agreement between the UN and Sierra Leone, the Appeals Chamber examined whether crimes committed by acting Liberian head of state Charles Taylor could be shielded from prosecution by his personal immunities. The court found that they could not, stating that “the principle seems now established that sovereign equality of States does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”

In qualifying the SCSL as an “international” tribunal, the Appeals Chamber described the UNSC Resolution bringing the court into existence as “a measure to maintain or restore international peace and security” and thus an expression of “the will of the international community.” The Appeals Chamber also noted the importance of the Special Court’s process being separate from Sierra Leone’s judicial system and its creation by multilateral treaty. These factors, taken together, were important in qualifying the SCSL as “international.” Unfortunately for Ukraine, the involvement of the UNSC in the Special Court’s creation was a central consideration in deciding the court’s international character, allowing the setting aside of head of state immunities.

There is an important difference between the waya court is established and the legal jurisdiction it exercises. Even if a tribunal is created through an international process, such as through a treaty with the CoE involving multiple states, its jurisdiction will not automatically be international for the purposes of overcoming immunities. For instance, the Extraordinary African Chambers (EAC), established to prosecute Hissène Habré for crimes committed during his presidency of Chad, were created through an agreement between Senegal and the African Union (AU) but were ultimately based in Senegalese law. Similarly, the Extraordinary Chambers in the Courts of Cambodia (ECCC) were established via an agreement between the UN and Cambodia but were rooted in Cambodia’s legal system.

Regarding immunities, both countries – Chad and Cambodia ­– had explicitly waived immunities that applied to their former leaders. In the EAC’s case, Chad was also a member of the AU and thus implicitly consented to the jurisdiction of the court. This would obviously not be possible for Ukraine as Russia would not currently waive its leaders’ immunities and is not a member of the CoE. If placed in Ukraine’s exact circumstances, neither of the “hybrid” models for the EAC nor the ECCC could have overcome the personal immunities of their former heads of state.

The sum of international jurisprudence indicates that the two criteria for judicial internationality are that a court must be established based on international law in a process involving at least two countries and that the court must represent the “will of the international community as a whole.” However, the tribunal cannot only be part of a country’s national legal system.

Many questions arise from these qualifications. For instance, how many states would need to sign on to the creation of a tribunal for it to represent the “will of the international community?” Would a regional organization like the CoE be considered sufficiently international?

It has been noted that the ICC was only considered an “international court” once 60 member countries ratified its multilateral treaty. Concerning Ukraine, membership of the CoE currently stands at 46 member states, but there are plans to open the treaty to accession by non-member states.

The most foolproof option in pursuing justice through the CoE would be to have a CoE sponsored international court be based on a multilateral treaty that is open to universal accession by any UN member state. Notably, the court would lose its potential internationality if it is solely based on Ukraine’s domestic judicial system. It must be created by a multilateral treaty and, therefore, must be rooted in international law.

Accountability for Aggression: Challenges and Opportunities

Ukraine has wasted no time in prosecuting aggression domestically. Aggression is prohibited under Article 437 of the country’s Criminal Code. The Office of the Prosecutor General has filed nearly 100 cases of Russian aggression against over 600 suspects. This group includes everyone from high-ranking military commanders and members of Moscow’s State Duma to Russian propagandists and the leader of the Russian Orthodox Church.

Notably absent from the prosecution list, however, are Russian state leaders, such as Russian President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergey Lavrov. Their absence confirms that Ukraine recognizes the protections of personal immunities in its domestic system. Considering that Ukrainian national courts are already prosecuting lower-level perpetrators of aggression, one could question the rationale of creating a “hybrid” special tribunal that would lack jurisdiction to try top Russian state leaders.

Another reason to favour an international model is that a domestic tribunal could encounter challenges in complying with the Ukrainian Constitution. Specifically, Article 125 of the Constitution prohibits the establishment of “extraordinary and special courts.”

It is likely that, at the time of its drafting, this constitutional provision was aimed at preventing Soviet-era type show trials that had preyed on Ukraine’s population during the twentieth century. It was not intended to prohibit treaty-based international courts.

In 2001, the Constitutional Court of Ukraine clarified that Article 125 applies to domestic courts that do not follow the procedures established by Ukrainian law. Thus, a special court within the Ukrainian judicial system – such as a hybrid court – could encounter legal obstacles in Ukraine, while a purely international court would not conflict with Article 125. The Ukrainian parliament cannot amend this provision while martial law remains in effect.

Internationally, the ICC has already initiated investigations into war crimes, crimes against humanity and genocide in Ukraine. These are crimes that clearly fall within the ICC’s subject matter jurisdiction. Article 8 bis (1) of the Rome Statute defined the crime of aggression and made it part of the subject matter jurisdiction of the ICC.

Linking war crimes, crimes against humanity, and genocide to Russian leadership could be challenging, considering that Putin, Lavrov, and Mishustin are not personally responsible for committing the crimes. Prosecution of the top echelons of Russia’s state apparatus for these crimes would likely rely on complex legal concepts such as command responsibility.

Prosecuting the crime of aggression provides a clear opportunity to punish the architects of the Russian war of aggression. Under Article 8 bis (1) of the Rome Statute, the crime of aggression requires the aggressor to effectively exercise control over or to direct the political or military action of a State.

The concept of leadership is built into the definition of the crime; it is not meant to prosecute low-level soldiers but rather to hold those at the helm of power accountable. There is no doubt that Putin exercises the requisite authority over Russia’s political establishment and the military to meet the “effective control” criteria outlined in the Rome Statute definition. Crucially, prosecution efforts must not allow personal immunities to shield perpetrators of aggression as doing so would vitiate the prosecution of a crime that is so closely entwined with leadership.

From a justice and accountability perspective, punishing aggression separately from other international crimes is essential. Aggression is a crime from which other violations of international law flow, including genocide, war crimes, and crimes against humanity. These atrocity crimes relate to the way war is conducted, while the crime of aggression addresses the illegality of war itself.

Ukraine is owed a justice process that addresses the root cause of the pain and hardship Russia has unleashed on the Ukrainian people. Forming an international tribunal is an opportunity for the first time to enforce international law to deter future state aggression. Prosecuting Russian officials is not just beneficial for Ukraine but for all countries that face the threat of invasion from stronger military powers.

Although there are many advantages to establishing an international tribunal, not all of Ukraine’s allies are enthusiastic about setting a precedent for prosecuting aggression. The G7 nations have been reluctant to support a purely international tribunal. In April 2024, during the G7 Foreign Ministers’ meeting in Japan, the foreign ministers indicated their willingness to explore “the creation of an internationalized tribunal based in Ukraine’s judicial system.” The statement was endorsed by Canada, Germany, Italy, Japan, the US, the UK, and France.

In fact, the US, the UK, and France were originally responsible for limiting the ICC’s jurisdiction over the crime of aggression. In 2010, during negotiations on the Kampala amendments, granting the ICC jurisdiction on the crime of aggression, the US and other countries insisted that the nationals and territories of States not parties to the ICC’s Rome Statute be wholly excluded from the ICC’s jurisdiction on aggression.

In 2017, France and the UK crafted an “opt-in” clause, which allowed States to elect to submit to the ICC’s jurisdiction over the crime of aggression by ratifying the Kampala amendments, whereas before that, the ICC’s jurisdiction automatically applied. Because Russia is not a party to the Rome Statute, absent a referral from the UN Security Council (which is not an option for Ukraine due to Russia’s veto power), the ICC is powerless over the country’s aggression.

Presently, the Western nations pushing back against the idea of an international tribunal have relied on the argument that such a model is unnecessary because the presence of the Russian President, Foreign Minister, or Prime Minister at a trial would only be possible once they no longer hold office. At this point, their personal immunities would no longer apply, thus eliminating the need for the legal powers of an international court.

However, this argument takes for granted that Putin and his associates will be apprehended or handed over by the Russian state, which is unlikely considering the Russian President’s recent “election” to a sixth term in power and his crushing of all political alternatives in Russia.

Opposition to an international tribunal also overlooks the value of establishing that head-of-state immunity does not apply to aggression in an authoritative ruling by an international court.

Efforts to prosecute the instigators of Russia’s invasion of Ukraine have illuminated serious deficiencies in the current institutions of international justice. The present international system, where China, the UK, France, the US, and Russia can block any investigation into aggression, including their own, is unworkable. It benefits five countries at the expense of the other 188 UN member states and runs counter to the democratic principles at the heart of the UN Charter.

One option to avoid running into the same challenges that Ukraine faces in prosecuting Russian aggression is to rely on the United Nations General Assembly (UNGA)’s powers under the Uniting for Peace resolution, UNGA Res. 377A. The Uniting for Peace Resolution provides that when the UNSC “because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security…the General Assembly shall consider the matter immediately with a view to making appropriate recommendations…”

Unlike the Security Council, however, the General Assembly is limited to making recommendations and prohibited from adopting “coercive or enforcement” action, which includes the creation of an international tribunal.

However, the UNGA has created a tribunal before. In 1949, the UNGA established the UN Administrative Tribunal to regulate staff relations, which the ICJ recognized as legitimate because the judicial body was “within the limited field of its [the UNGA’s] functions.”

The Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) were created by an agreement between the UN and the Royal Government of Cambodia. When the UN Office of Legal Affairs (UNOLA) pulled out of negotiations to create the ECCC, the UNGA passed a resolution ordering UNOLA back into negotiations with instructions to reach such an agreement with the Cambodian government on the terms set by the Cambodian law establishing the structure for the ECCC. This was the strategy led by Dr. Gregory Stanton of the Cambodian Genocide Project and Ambassador David Scheffer of the US Department of State.

It would be possible to again use the UNGA’s powers to order the UN to conclude an agreement with the Government of Ukraine to establish an international tribunal on aggression. This measure would be a significant step toward enhancing justice within the UN system.

Gaining Global Support through the CoE

Resorting to the Uniting for Peace process is an important opportunity for progress under international law – not only to overcome the deadlock at the Security Council but also to shift the balance of power at the UN to the General Assembly.

Negotiations to create a tribunal through the CoE are well underway. It is hoped that CoE states will agree on a format as early as this fall. Although this may be the most likely option, President Putin has routinely framed this war as a confrontation between Russia and the West, and a CoE-based treaty is susceptible to criticism of being Eurocentric.

A June 2024 PACE resolution stressed that a tribunal’s creation “should not be understood as a merely European response to a European problem.” It called on the UNGA to adopt a resolution endorsing the special tribunal. Ukraine will likely be able to secure enough support for such an UNGA resolution among UNGA members. In the immediate shock of Russia’s invasion of Ukraine, the UNGA adopted a resolution condemning Russia’s aggression, with 141 countries voting in favour, 5 against, and 35 abstentions. However, support dropped when the UNGA passed a resolution calling for reparations, receiving 94 votes in favour, 14 against, and 73 abstentions.

A tribunal for Ukraine needs to show not just European and American support. It must demonstrate that the entire world condemns Russian aggression. Ukraine’s association with Western nations has alienated many countries of the Global South, who view calls for criminal responsibility for Russian aggression against Ukraine as hypocritical coming from former colonial powers. Ukrainian experience with centuries of colonial struggle, cultural and linguistic repression, and anti-Slavic racism is very similar to the struggles of the Global South.

Yet, messaging on the war has failed to situate Ukraine in an anti-imperialist context and make common cause with fellow post-colonial states. The lack of global unity on Ukraine is motivated by more than just a disdain for the West. Many countries have material dependence on Russian exports. They also depend on Chinese investments in their infrastructure.

The need to gain global support for a special Ttibunal on aggression is all the more important considering that the trials on aggression are likely to take place in absentia. Ukraine already has experience with such trials. In 2019, Ukrainian courts tried Viktor Yanukovych in absentia for complicity in the crime of aggression. Yanukovych has never been apprehended and remains in exile in Russia. However, at the least, with widespread international support, arrest warrants issued by an international special tribunal on aggression would make Russian officials’ world much smaller and seriously limit their ability to travel and attend diplomatic gatherings.

Conclusion

Russia’s illegal annexation of Crimea and full-scale invasion of Ukraine are the most clearcut cases of aggression since World War Two. Ukraine has suffered two years of mass killing, deportations, torture, rape, and genocide in a war in which Russia intends to extinguish Ukraine as a state.

It would be unjust if a special tribunal on aggression is deprived of the necessary legal powers to judge those accountable for inflicting incalculable atrocities on Ukraine. The same criminals have aggravated global food shortages and environmental destruction.

While an institutional model for a special tribunal on the crime of aggression is still in discussion, legal advocates should push for an international option, which is best for international law, global justice, and for Ukraine.

Today, it is Ukraine that faces Russian aggression. Tomorrow, any country could be the victim of an illegal invasion. It is in the interest of every peace-loving nation to have a robust international legal framework criminalizing the crime of aggression.

Most of all, it is paramount to listen to Ukrainians in their fight for justice. Ten years of war and over two years since the full-scale invasion have made Ukraine keenly aware of Russia’s genocidal tactics and its imperialist designs on Europe. Ukraine is sounding the alarm on the threat Russian imperialism poses to global peace and security. The world must listen.