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The Divide Hardens on What a Special Court for the Crime of Aggression by Russia Should Look Like



trip to Kamchatka, protected territory national environmental youth forum, Sept. 5, 2022. KREMLIN/ALEXEY KUDENKO
President Vladimir Putin could face a special tribunal for the crime of aggression in Ukraine. But a core group of advocates pushing for creating such a court is divided on what it should look like. Here, Putin in Kamchatka, Russia’s far east, meeting with a national environmental youth forum, Sept. 5, 2022. KREMLIN/ALEXEY KUDENKO

TALLINN, Estonia – Efforts to create a special tribunal to try Russian leaders for the crime of aggression in Ukraine is exposing a deepening divide between the Group of 7 countries and their European allies over how to hold the top political and military tiers of Russia’s government, including President Vladimir Putin, accountable. Whether the gap can be closed to deliver the comprehensive justice long sought for by Ukraine as the war machine rages on remains unclear. Political stances on the type of special tribunal are not softening.

Within the larger core group of advocates, the G7 countries, led by the United States, Britain and France, have dug in their heels on what they call an internationalized/national tribunal rooted in Ukraine’s legal system, while smaller European nations supporting a tribunal — including Liechtenstein and the Baltics (Estonia, Latvia, Lithuania) — have rallied behind Ukraine’s President Volodymyr Zelensky’s vision of a court that would be endorsed by the United Nations General Assembly. The Baltics, of course, share long borders with Russia, were occupied by the Soviet Union for five decades, from 1940-1991, and when Russia invaded Georgia in 2008, the Baltic nations were among the first to warn the world of a potential invasion of Ukraine.

“Lithuania was very outspoken about [how] you cannot trust Russia,” said Gabija Grigaite-Daugirde, Lithuania’s vice minister of justice, in an interview with PassBlue here in Estonia’s capital. “Now people [are] coming to Lithuanians and saying we should have listened to you before.”

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The plan for a special tribunal — recently backed by former UN Secretary-General Ban Ki-moon and others — clears a legally sound path for the potential prosecution of Putin, Russian Defense Minister Sergei Shoigu and Foreign Minister Sergey Lavrov (also called the troika) for the crime of aggression, while the hybrid idea reveals the G7’s resistance toward translating the jargon of justice and accountability into concrete action. (Besides Britain, France and the US, the G7 consists of Canada, Germany, Italy and Japan plus the European Union.)

“Only one institution is capable of responding to the original crime — the crime of aggression, a tribunal,” Zelensky said during a visit to The Hague-based International Criminal Court (ICC) on May 4. “Not something hybrid that can formally close the topic . . . not some compromise that will allow politicians to say that the case is allegedly done. . . . But a true, full-fledged tribunal. True and full justice.”

The G7 met in Hiroshima last weekend, giving a huge show of support for Zelensky — who participated in the gathering in person — by committing to another shipment of weapons to Ukraine that includes the much-coveted F-16 jets that the president has been asking for throughout the full-scale war.

As for accountability for Russian atrocities in Ukraine, the G7 released a statement on May 19 that didn’t mention a special tribunal but instead noted the group’s support for judicial “efforts of international mechanisms,” referring to the ICC. They also condemned the “unlawful deportation and transfer” of Ukrainians (including children) by Russia and called attention to “the impact of Russia’s aggression on international sport.” The ICC has issued arrest warrants to Putin and Maria Lvova-Belova, his children’s rights commissioner, for the illegal forced transfer of Ukrainian children into Russian-occupied territory of Ukraine or Russia itself.

“If we are serious about strongly responding to any attempts to bring war as a tool of politics back [or] to any attempt to reintroduce change of international borders by force, then we need to make sure that the source of all other crimes, the crime of aggression, is addressed,” Kristine Lice, Latvia’s director general of the legal directorate, told PassBlue.

“Russia’s behavior is a concern for all states,” she added. “And this is the reason why we think the response needs to be international. It’s not a regional issue. It’s not a European issue. It’s a global issue.”

PassBlue interviewed Lice at the most recent core group meeting, held in Tallinn, on May 11-12. The first night featured a reception at the Vabamu Museum of Occupations and Freedom in the city, followed the next day by several rounds of legal debates focusing on the creation of a special tribunal.

Erki Kodar, Estonia’s undersecretary of legal and consular affairs, told PassBlue that the reception at the Vabamu museum, which chronicle’s Estonia’s decades-long journey from Nazi and Soviet occupation to independence, was intentional. “We took [the core group] there with the aim of kind of getting across that this [special tribunal] is something bigger.” He added that “we need to have responsibility and accountability” for Ukraine as well as safeguards so “that it doesn’t happen again.”

The core group, led by Ukraine, first met in Prague, the Czech Republic’s capital, on Jan. 26. The group then met in Strasbourg, France, in late  March. While the group keeps growing, it currently consists of 37 countries, mostly Western allies with a few from Latin America, such as Costa Rica and Guatemala. The next meeting is scheduled to be held in Warsaw at the end of June, where legal discussions will continue, its organizers say.

Rein Tammsaar, Estonia’s envoy to the UN, described the group’s meetings — held privately, with no media access — as a gathering of “legal experts” that aims to puzzle through legal issues that could impede the creation of an international tribunal.

Tammsaar attended his first meeting of the core group in Tallinn and told PassBlue that for the first time in his life he “kind of regretted that I’m not a lawyer.”

“We come together to see whether we can find the common landing zone when it comes to accountability,” he told PassBlue at Estonia’s mission in New York City. The core group plays an advisory role that, he said, is “cultivating the field” for what will ultimately be a “political decision.”

He admits, however, that the group is not entirely on board with what a special tribunal will look like. “The divide is there,” Tammsaar said, “it doesn’t make sense to hide it.”

No timeline to present a draft resolution on the matter to the General Assembly has been proposed. Outreach by likeminded countries on the type of court Ukraine wants is continuing informally with UN member states in New York City.

“It’s a challenge,” said Anton Korynevych a Ukrainian lawyer and ambassador-at-large in the ministry of foreign affairs, who travels from Kyiv to chair the core group meetings. “But we are trying to do our best in order to make more states, including from regions in America, Southeast Asia and Africa to be with us. But it’s a hard task.”

PassBlue interviewed Korynevych on the sidelines of the meetings in Tallinn. To get there from Kyiv, Ukraine’s capital, he took two trains to Poland, followed by a flight to Tallinn. “In general, to reach any destination in Europe we need 24 hours,” he said.

For months, Zelensky has publicly pushed for the creation of such a court to prosecute Putin and his co-conspirators for the crime of aggression. Described as the “mother of all crimes” by the international justice community, the crime is recognized as the one that makes all other atrocity crimes — war crimes, crimes against humanity and genocide — possible.

Under international law, however, heads of state are immune or protected from prosecution by national courts of other countries while they are in power. So holding Putin, Lavrov and Shoigu accountable while they are in office is possible only if they are brought before an internationally recognized court or tribunal where their immunities would be stripped.

Renowned legal experts such as David Scheffer, a senior fellow at the Council on Foreign Relations and a former US ambassador-at-large for war crimes, and Hans Corell, a top legal expert who served under UN Secretaries-General Boutros Boutros-Ghali and Kofi Annan, have suggested creating a special tribunal through a General Assembly resolution to request Secretary-General António Guterres to negotiate an agreement with Ukraine to set up such a court. That path would make the court recognized as internationally legitimate with backing from a majority of the 193-member Assembly and therefore eliminate the troika’s legal immunities.

In the early 2000s, Corell negotiated a similar agreement at the request of Secretary-General Annan, between the UN and Cambodia to prosecute the members of the Khmer Rouge regime for genocide and crimes against humanity committed from 1975-1979. The effort resulted in the Extraordinary Chambers in the Courts of Cambodia, located in Phnom Penh, Cambodia’s capital.

Such a tribunal to try atrocity crimes committed in Ukraine could also be endorsed through the Security Council. But that attempt would be vetoed by Russia, one of the body’s five permanent members.

Even within the core group, Kaija Suvanto, Finland’s director general of legal service, told PassBlue in Tallinn that not all members believe that the Assembly “has the power to make this kind of mandating resolution which would be binding.”

According to a source familiar with the core group discussions, who asked for anonymity given the sensitivity of the topic, it’s the G7, led by the US, Britain and France, who are pushing back against establishing a tribunal through a General Assembly resolution. Their motivation, the source says, is a purely political attempt to avoid setting a precedent for the international prosecution for the crime of aggression. It’s a continuing agenda the US had pursued since at least 2010, when at a conference of states parties to the ICC, in Kampala, Uganda, the crime of aggression was defined by the international community as one that prosecutes leadership. Yet the crime of aggression became an amendment to the Rome Statute, the governing document of the ICC.

At the time, according to Jennifer Trahan, a clinical professor at New York University’s Center for Global Affairs and one of the legal minds behind the creation of a special tribunal through the General Assembly, the US delegation, among others, insisted “that the nationals of, and crimes committed on the territories of, States not parties to the ICC’s Rome Statute be completely carved out of the crime of aggression’s jurisdiction before the ICC.” The US and Russia are not members of the ICC.

Meanwhile, to avoid setting a precedent that could expose US heads of state to prosecution for the crime of aggression, the US has publicly supported what it calls an “internationalized national,” or hybrid court, rooted in Ukraine’s domestic courts with international elements that have not been precisely defined.

But a court rooted in Ukraine’s domestic system poses numerous flaws. For starters, Ukraine’s constitution doesn’t allow the creation of specialized courts. And while Ukraine is under martial law because of Russia’s invasion of 15 months, the country’s constitution cannot be modified. Moreover, Putin, Shoigu and Lavrov would have immunity before a Ukrainian court. Prosecuting the troika, as Zelensky has repeatedly called for, can’t happen while the accused parties hold office.

When the US is pressed during core group meetings on issues of immunity related to the “internationalized national” tribunal, several sources told PassBlue, the US argues that Putin will lose his immunity once he leaves office and can be prosecuted then. Yet there’s no telling how or when Putin will leave office voluntarily or otherwise.

Unlike a court established through the General Assembly, a Ukrainian national body would have low international legitimacy. In response, the US has suggested tabling a draft resolution in the Assembly to demonstrate support for the court after its establishment, according to one source. Moreover, it is unclear how serious the US is about tabling such a resolution.

When asked in a PBS interview on May 15 whether the General Assembly could approve a resolution in favor of a tribunal with a majority vote, Beth Van Schaack, the US ambassador-at-large for global criminal justice, said she doubted the Assembly would support a resolution “wholeheartedly,” adding: “To come out of the General Assembly resolution with a weaker vote than 90 or 80 states . . . would be problematic. I think that would really undercut the message of legitimacy.”

For now, the legal debate on the shape of a tribunal is moving ahead. Yet one question is clear: Will the US, perhaps Ukraine’s steadiest and richest supporter, prioritize protecting its own heads of states from possible future prosecution for the crime of aggression, at the expense of justice — prosecution of the troika — for Ukraine? It is a war, after all, that US President Joe Biden, while speaking in Warsaw on Feb. 21, referred to as “Putin’s war.”

In Tallinn, when asked by PassBlue whether Zelensky would settle for an “internationalized national” tribunal, Korynevych said: “Accountability for the crime of aggression must be ensured in this situation. If the crime of aggression is not prosecuted and investigated this time, then it will only remain in textbooks and in Ph.D. theses. It will not exist in practice; I am sure of that.”

We welcome your comments on this article.  What are your thoughts on a special tribunal for Russia's crime of aggression?

Dawn Clancy is a New York City based reporter who focuses on women’s issues, international conflict and diplomacy. She holds a master’s degree from Columbia University’s Graduate School of Journalism. Previously, she has written for The Washington Post and HuffPost.

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The Divide Hardens on What a Special Court for the Crime of Aggression by Russia Should Look Like
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Alexandre Gorelik
Alexandre Gorelik
1 year ago

A graphic description of the politics of the eventual court. So far, the whole thing looks like a tribunal sought for by Ukraine & Western states with the US displaying the most distinct double standards approach. Add to it a turf war already delineated by the ICC.

1 year ago

Interesting plans (and the US fears of precedent are quite amusing in the context of their now much touted “rules”). I just wonder if anyone has taken the time to address the smaller problem of how to bring the authoritative ruler of a nuclear superpower to that court.
The only realistic option would be a palace coup, except that after that someone even more ruthless than Putin would probably come to power, like Prigozhin (I’m not in any way defending Putin, I consider him a criminal, but he’s actually quite “moderate”, try to imagine how the US would probably wage a war in which it lost almost as many soldiers in one year as it did in Vietnam).

Dr. Roger Kotila
Dr. Roger Kotila
1 year ago

Any type of tribunal against Putin et al., via either the ICC or with a non-ICC specialized tribunal, will bring up the illegal overthrow of the democratically elected Ukrainian government by US covert operations in the violent Maidan “regime change” attack of Feb. 22, 2014, already publicly admitted by the US State Dept’s Victoria Nuland.
Partly why the US government is nervous about any type of tribunal, is that US leadership is the leading violator of international law and UN conventions: Invading nations, overthrowing governments, and economic warfare (sanctions, blockades). Bush, Bush Jr, Clinton, Obama, Trump, Biden along with the Pentagon generals and CIA plotters would all be vulnerable to an objective and honest international Tribunal — either by the ICC or outside of the ICC. Iraq, Afghanistan, Libya, Cuba, Venezuela are just a few examples — victims of US aggression.
That’s why the US threatened the ICC if it prosecuted American leaders responsible for war crimes, crimes against humanity, etc. Russia joined with the US to threaten the ICC.
Currently there is a movement underway to review the UN Charter as to why superpowers like the US and Russia are above international law and enforcement. Both are members of the disgraced UN Security Council P-5 with veto powers over the rest of the world.
The UN General Assembly is being asked to step in to expose what is wrong with the Charter that crimes by Bully nations go unpunished. The Earth Constitution is being advanced as a replacement for the obsolete and undemocratic Charter which has hampered the UN from doing its primary job — ending war.

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