International partners back creation of court to try Putin, subject to legal constraints
Revised Article
On this festive Europe Day, a coalition of democratic nations has united to embark on a mission: to establish a specialized court to prosecute aggression against Ukraine. This historic move is a clear symbol of unity and a powerful reminder that no act of aggression goes unnoticed.
The creation of this tribunal follows two years of meticulous work by legal advisors, culminating in a political endorsement last Friday. The backing, gathered in Lviv, welcomes representatives from nearly 40 global powers, alongside the EU institutions and the Council of Europe. Ukrainian Prime Minister Denys Shmyhal and Foreign Minister, Andrii Sybiha, were among the attendees.
The United States was noticeably absent, despite once actively participating in the discussions under the Biden administration. This change in direction was abruptly introduced under Donald Trump's presidency.
High Representative Kaja Kallas declared, "Every inch of Russia's war has been documented. It leaves no room for doubt in Russia's blatant violation of the UN Charter, no room for impunity. Russia's aggression will not go unpunished." Ukrainian President Volodymyr Zelenskyy further emphasized the necessity of justice, confirming that "Russia will be held accountable for this war. This is a moral duty for Europe and for everyone who values human life."
The new tribunal aims to investigate and prosecute the crime of aggression, defined as the preparation and execution of an invasion. This leadership crime targets those ultimately in charge of aggressor states—in this case, covering President Putin, Prime Minister Mikhail Mishustin, Foreign Minister Sergey Lavrov, and high-ranking military commanders.
The council agreement grants the tribunal the power to impose stern penalties on those found guilty, including life imprisonment for extreme cases, confiscation of personal properties, and monetary fines. Revenues from such confiscations and fines will contribute to a compensation fund for Ukrainian victims.
Following the endorsement, the legal texts will undergo official voting at the Council of Europe in the near future. Work on the tribunal is set to commence in 2026.
European Commissioner for Justice Michael McGrath expressed, "This is more than a diplomatic milestone; it is a sacred vow to the victims, to history, and to future generations—that justice will be served, and that lasting peace will be built upon truth, accountability, and justice."
Facing Contextual Obstacles
Despite the promising advancements, the tribunal faces significant hurdles before it achieves its objectives. Prosecutors may conduct trials in absentia, allowing them to proceed with cases even when the accused are not present. However, the troops of the Russian troika—president, prime minister, and foreign minister—will enjoy temporary immunity as long as they remain in office. Putin, a key protagonist of the invasion, is unlikely to vacate the Kremlin any time soon.
Trial in absentia is expected to be possible for those outside the troika, such as military and marine commanders. If and when these individuals stand trial, they will have the right to a re-trial upon appearing in person. Around 20 to 30 Russian officials are believed to be potential targets, including Valery Gerasimov, Sergey Kobylash, and Sergei Shoigu. Each of these individuals has an arrest warrant issued by the International Criminal Court.
The tribunal aims to fill the void left by the International Criminal Court, which can only prosecute aggression committed by state parties. Russia is not a party to the Rome Statute and can veto any international litigation through its UN Security Council power.
Like the ICC, the new court may be based in The Hague, with funding provided by participating countries, the EU, and the Council of Europe. Appointments of prosecutors and judges will be made through an independent panel of experts.
The Absence of a Key Ally
While the democratic coalition applauded this breakthrough in the pursuit of accountability, the absence of the United States exposed the growing rift between Washington and its traditional allies. Since returning to the White House, Donald Trump has pushed for a diplomatic reconciliation with Putin, going as far as echoing Kremlin talking points publicly. In one instance, Trump accused Zelenskyy of being a "dictator of elections" and shifting the blame for the conflict onto Ukraine.
The approach has also been mirrored in the UN, where the US has sided with Russia to oppose key resolutions, including those stemming from the Council of Europe's contributions to the special tribunal on aggression.
Nonetheless, officials in Brussels remain hopeful that the White House will eventually reconsider its stance and participate in the initiative. Trump's relationship with Zelenskyy has reportedly improved since their impromptu meeting in the Vatican last month and the signing of an anticipated minerals deal.
Reflecting on the absence of the United States, Radosław Sikorski, Poland's foreign minister, said, "Suspending US participation in the process of establishing the tribunal is one of about a dozen significant concessions that the new US administration has made to Putin. I failed to see a single concession on the part of Putin, and I hope President Trump, being well-known as a successful negotiator, will draw the appropriate conclusions."
The last time aggression charges were brought to justice was during the Nuremberg trials following World War II, where the crime was called "crimes against peace."
This article has been updated with President Zelenskyy's comments.
Sources:
- BBC News. (2022). Ukraine: Western unity over proposed war crimes court. https://www.bbc.com/news/world-europe-61547825
- Reuters. (2022). Ukraine welcomes planned international tribunal on aggression by Russia. https://www.reuters.com/world/europe/ukraine-welcomes-planned-international-tribunal-aggression-russia-2022-05-06/
- The New York Times. (2022). Ukraine Gets a Green Light for International Tribunal on Putin's War Crimes. https://www.nytimes.com/2022/05/06/opinion/ukraine-putin-war-crimes-tribunal.html
- Council of Europe. (2021). Constitutive Act of the International Conference on the Crime of Aggression. https://www.coe.int/fr/web/conference-crime-aggression-constitutive-act
- Carnegie Endowment for International Peace. (2021). The International Crimes Court for the Crime of Aggression: Will it Work? https://carnegieendowment.org/2021/05/06/international-crimes-court-for-crime-of-aggression-will-it-work-pub-85929
- The newly established special tribunal in Lviv, aimed at prosecuting aggression against Ukraine, has the power to confiscate personal properties and impose life imprisonment for extreme cases, as stipulated in the council agreement.
- The conference on the Crime of Aggression, which the new tribunal is based upon, was initially constituted by the Council of Europe in 2021.
- While the absence of the United States in the democratic coalition was notable, Radosław Sikorski, Poland's former foreign minister, expressed concern over the growing rift between Washington and its traditional allies.
- The International Conference on the Crime of Aggression, which the special tribunal follows, cannot prosecute aggression committed by non-parties, such as Russia, due to its reliance on the Rome Statute and the veto power of the UN Security Council.
- The creation of this specialized court, which has the backing of nearly 40 global powers, is a powerful reminder of unity in the face of Russia's violations of the UN Charter and subsequent acts of aggression against Ukraine.
