For months, Sergiy Kyslytsya, Ukraine’s ambassador to the United Nations, alongside Christian Wenaweser, Liechtenstein’s envoy, have been leading an effort at the UN to produce a draft resolution to support the notion of establishing an international tribunal to prosecute the top tier of Russia’s leadership for crimes of aggression against Ukraine. That includes President Vladimir Putin. It is most likely that the draft resolution seeking political backing from UN member states will be submitted to the General Assembly early next year.
Considered the “mother of all crimes” by the international justice community, the crime of aggression is recognized as the one that makes all other war crimes — including crimes against humanity and genocide — possible. Given numerous indications from experts on international justice worldwide, the International Criminal Court, or ICC, cannot prosecute the crime of aggression for Russia’s military assault on Ukraine because both countries are not parties to the judicial body. Yet Karim Khan, the chief prosecutor for the ICC, is adamant that creating a new tribunal for prosecuting crimes of aggression will dilute the power of his court, while other legal experts contend that it will complement the Hague body. The legalities behind creating a special tribunal are invariably complex, some experts and diplomats concede, and could take years to materialize.
But a draft resolution, a copy of which was obtained by PassBlue, is nevertheless being negotiated before it may be submitted to the General Assembly for a vote. In the latest version, it omits a paragraph that would request that UN Secretary-General António Guterres “negotiate an agreement with the Government of Ukraine to create an independent international tribunal with jurisdiction over crimes of aggression committed against Ukraine.” Instead, a new paragraph leans toward vaguer language, calling on “Member States to consider appropriate actions to pursue comprehensive accountability” for crimes “committed against Ukraine” that “must not go unpunished.” The United States is also involved in drafting the resolution.
“That paragraph is basically saying, let’s all think about this real hard,” said Reed Brody in a phone interview with PassBlue. “There’s nothing there . . . they’ve taken the meat out of the burger,” he added. Brody is a renowned war crimes prosecutor who led the 25-year effort to bring Hissène Habré, a former Chadian dictator, to justice and has written about his work in a book, “To Catch a Dictator: The Pursuit and Trial of Hissène Habré.”
It remains unclear in the draft resolution so far what role Guterres and his office would explicitly play in establishing a special tribunal to prosecute Putin and his closest advisers, but it will most likely continue to be negotiated between Ukraine and the UN. On Dec. 16, a reporter asked at a UN press briefing about Guterres’s position on creating such a court. The crime of aggression has never been prosecuted.
“In any conflict, whether it’s the conflict in Ukraine, whether it’s the horrific crimes being perpetrated against civilians in the eastern part of the Congo or anywhere else, there needs to be accountability. Right?” Stéphane Dujarric, the spokesperson for the secretary-general, answered. “It is also important to note that, already, in the Ukraine context, which is sort of a first for a conflict we’re seeing in recent decades, there are various investigatory mechanisms, including people from the International Criminal Court, already at work. And as I said, there will need to be accountability.”
One architect behind the proposal for a negotiated tribunal between the UN and the government of Ukraine is David Scheffer. He is a senior fellow at the Council on Foreign Relations and a former US ambassador at large for war crimes. In a phone interview, he told PassBlue that although there are “several pathways” to build a tribunal for the crime of aggression, the one he’s been advocating for is modeled after the Extraordinary Chambers in the Courts of Cambodia (a tribunal established in 2001 to prosecute genocide and crimes against humanity during the rule of the Khmer Rouge); and the Special Court for Sierra Leone (created in 2002 to prosecute “violations of international humanitarian law and crimes committed under Sierra Leonean law” during the country’s civil war.)
Scheffer helped bring both tribunals to life. “I’m sort of a carpenter,” he said. “I build tribunals.”
To construct the Cambodia tribunal, Scheffer said that the “General Assembly adopted a resolution instructing the Secretary-General to negotiate a treaty with Cambodia.” In the case of Sierra Leone, the Security Council adopted a resolution directing the UN secretary-general at the time to negotiate a treaty with the government of Sierra Leone.
Scheffer told PassBlue that what he and others consulting on the Ukraine matter have suggested is “a mixture” of the Cambodia and Sierra Leone structures, where the General Assembly would issue a resolution that “directs” the secretary-general to negotiate the creation of a tribunal to prosecute the crime of aggression with the government of Ukraine. Unlike Sierra Leone, working through the Security Council on a Ukrainian tribunal is “off deck,” given that Russia has veto power, Scheffer said. Yet going through the Council — despite Russia voting no — could build more political support among those members before the resolution would be submitted to the Assembly, a European diplomat told PassBlue.
The General Assembly path, Scheffer added, would give the new tribunal a “tremendous amount of legitimacy” and “take care of the head-of-state immunity issue that all nations are entitled.”
Under basic international law, heads of state have immunity before other countries’ courts. However, that immunity dissolves before an international court. Therefore, with approval from the General Assembly, the tribunal could be designated as an international court, making it possible for it to prosecute not only Putin for the crime of aggression but also others such as Russian Defense Minister Sergei Shoigu and Foreign Minister Sergey Lavrov, a European diplomat told PassBlue.
On Feb. 28, four days after Russia invaded Ukraine, ICC Prosecutor Khan opened an investigation to probe “alleged war crimes and crimes against humanity” being committed “by any party to the conflict on any part of the territory of Ukraine.” Khan’s investigation is ongoing.
According to its website, the ICC investigates and “where warranted, tries individuals charged with the gravest crimes,” including genocide, war crimes, crimes against humanity and the crime of aggression. However, the ICC has jurisdiction only over the 123 member states that have ratified the Rome Statute, the treaty that established the court. Neither Ukraine, Russia nor the US is a party to the ICC.
However, the Security Council can vote to refer a case to the ICC for state parties and nonstate parties. But given that Russia has veto power as a permanent member of the Council, a referral to prosecute war crimes in Ukraine won’t be approved. Without a Council referral, the ICC can prosecute war crimes, crimes against humanity and genocide if the crime has been committed by a member state, on a member state’s territory or if a state like Ukraine gives the ICC permission to prosecute by formally accepting the court’s jurisdiction, as Ukraine did in 2014. However, for the crime of aggression to be prosecuted by the court, a state referral on its own — without a Security Council nod — is not enough to give the ICC jurisdiction.
PassBlue contacted the Russian mission to the UN for a comment on Ukraine’s push to create a tribunal for the crime of aggression but got no response. Russia has publicly denied that it is committing war crimes in Ukraine.
In addition to the draft proposal circulating among a small circle of UN member states, on Nov. 30, European Commission President Ursula von der Leyen announced, without providing details, a European Union proposal “to set up a specialized court, backed by the United Nations, to investigate and prosecute Russia’s crime of aggression.”
Jennifer Trahan, a clinical professor at New York University’s Center for Global Affairs, said that a separate proposal may also be in the works for a court negotiated directly between the EU and Ukraine that “sounds like a regional tribunal that would potentially have immunity problems.” Like Scheffer, Trahan is part of the working group advising Ukraine and others on the special tribunal for the crime of aggression at the UN. “I don’t believe Ukraine wants immunities problems,” she added, “they want to prosecute [Russian] leaders all the way up to the top.” (Kyslytsya, Ukraine’s envoy to the UN, did not respond to PassBlue’s request for a comment.)
In an email, Christian Wigand, the European Commission’s spokesperson, told PassBlue that proposals and options “to make sure that Russia pays for the atrocities and crimes committed in Ukraine” were “transmitted” to European member states on Dec. 1. As negotiations continue, Wigand said that they would “work closely” with Ukraine and international partners. He added that there was no specific deadline for a decision.
Ultimately, as Wenaweser of Liechtenstein told PassBlue in a phone interview, it is Ukraine’s prerogative to decide the final format and approach of the tribunal. “We’re talking about an agreement between Ukraine and the United Nations, so [Ukraine] is in the lead,” Wenaweser said. “We’re there in a supportive and advising role. This is very clear for us.” Wenaweser played a critical part in negotiating a definition of the crime of aggression at a conference of the ICC’s state parties in Kampala, Uganda, in 2010.
Despite unprecedented international support for Ukraine, primarily among Western allies, securing enough votes in the General Assembly to approve the initial draft resolution is not a given — let alone a later resolution to approve an actual tribunal. “There’s a perception that the fabulous tools of international justice only kick into action when certain countries want them to kick into action,” Brody said. “International law cannot just be for the West. I mean, Palestine is occupied . . . crimes are being committed and the ICC has jurisdiction over Palestine . . . to me, that’s the crux of the matter.”
Since Russia fully invaded Ukraine on Feb. 24, the General Assembly has with an overwhelming majority passed five resolutions calling on Russia to end its military operations; condemned Russia’s violation of international humanitarian and human rights in Ukraine; and more recently censured Russia’s illegal attempt to annex four territories in Ukraine. Additionally, on April 7, with a two-thirds majority, the body passed a resolution that suspended Russia from the Human Rights Council.
Andrejs Pildegovics, Latvia’s ambassador to the UN and one of Ukraine’s staunchest supporters at the world body, describes Russia’s invasion as the “biggest assault” on the UN Charter and the “biggest humanitarian catastrophe” in Europe since the end of World War II. In a phone interview with PassBlue, Pildegovics said that the time for a tribunal is now, especially as Ukraine confronts winter with its civilian infrastructure severely compromised by missile assaults constantly launched by Russia.
“We have condemned aggression, but condemnation is not enough,” he said. “Only a court can give a legal judgment on the crime of aggression. And until and unless it’s done, none of the UN members can feel safe.”
This article was updated to clarify Jennifer Trahan’s quote.
We welcome your comments on this article. What are your thoughts on a tribunal to criminally prosecute Putin?
I’m afraid I have to disagree with the question; It should be asked, “What comments do you have that crime of aggression is not prosecuted against all other States that had participated, started or attacked States such as Palestine, Iraq, Syria, etc.” The current actions are proof of double standards and a shame.