Russian Foreign Minister Sergey Lavrov, President Putin and Defense Minister Sergei Shoigu in the Kremlin in 2016.

Russian Foreign Minister Sergey Lavrov, President Putin and Defense Minister Sergei Shoigu in the Kremlin in 2016.

Foto: Mikhail Klimentyev / ITAR-TASS / IMAGO

Prosecuting Aggression Will There Be a Special Tribunal for Putin?

Ukraine wants to see Russian President Vladimir Putin dragged before a special tribunal for his invasion. Thus far, many countries in the West have been skeptical of such a move, but recently, resistance has been softening.

Serhiy was just two days old when he died. On a cold night in November, a Russian missile struck the maternity ward where the newborn was recuperating together with his mother. Mariya had just breastfed her baby when the walls came crashing in. First responders pulled the lifeless infant from the rubble.

DER SPIEGEL 50/2022

The article you are reading originally appeared in German in issue 50/2022 (December 10th, 2022) of DER SPIEGEL.

SPIEGEL International

Vilniansk is part of the southern Ukrainian region of Zaporizhzhia, which Russian President Vladimir Putin formally annexed in September.

Attacking hospitals is a war crime – at least when it isn’t considered collateral damage. The soldiers who fired the missile that killed Serhiy could be charged and convicted. Their commanders could also be brought to justice, if was possible to identify them and prove their intentions. The missile, though, would never have been fired in the first place if Putin hadn’t ordered the invasion of Ukraine.

"Some countries may condemn the invasion, but they don’t want to completely close the door on negotiations with Moscow."

Andriy Smyrnov, deputy chief of staff to Ukrainian President Volodymyr Zelenskyy

"None of the war crimes in Ukraine would be taking place if the war had not been started," says Philippe Sands, a British specialist in international law and the director of the Centre on International Courts and Tribunals at University College London. For Sands, the invasion itself – "the mother of all crimes" – is the key event. As such, he demands that investigators should focus their attentions on Putin and the Russian leadership – because of the invasion that has now cost the lives of tens of thousands of people.

As early as February 28, the fifth day of the war, Sands presented his arguments in a guest editorial for the Financial Times. "Why not create a dedicated international criminal tribunal to investigate Putin and his acolytes?" he asked in the piece. The Ukrainian leadership in Kyiv immediately adopted his arguments. Sands says that former British Prime Minister Gordon Brown immediately contacted him and put him in touch with Ukrainian Foreign Minister Dmytro Kuleba. A short time later, the Ukrainian government began urging its Western partners to establish such a tribunal. "We are doing everything to create such a tribunal," promised Ukrainian President Volodymyr Zelenskyy yet again at the end of November.

The idea of dragging those responsible for the illegal invasion into court certainly seems to make a lot of sense. And it would revolutionize international criminal law. The crime of aggression has only once before resulted in prosecution, way back during the post-World War II period. At the impetus of Soviet legal expert Aron Trainin, the International Military Tribunal at Nuremberg included "crime against peace" in its statute.

Fragments of missiles that have struck Kharkiv.

Fragments of missiles that have struck Kharkiv.

Foto: Libkos / AP / dpa

There have been additional wars of aggression since then, of course, but there’s been no court to pass judgment against them. The governments in Washington, Paris, London and Moscow, which had been united in their desire to punish Germany for Hitler’s war of expansion, were not prepared to provide an international court with permanent jurisdiction over state-on-state aggression. Doing so would have limited their flexibility both militarily and politically.

It is for that reason that member states of the International Criminal Court (ICC) in The Hague, which started operations 20 years ago, only included the crime of aggression into the court’s statutes in 2010 following tough negotiations. Initially, though, a majority of court members declined to ratify it. Indeed, it only entered into force in 2018 – and some of the countries involved managed to push through a significant qualification: In contrast to war crimes, crimes against humanity and genocide, the qualification holds, the country allegedly responsible for aggression must agree to an investigation in the first place.

Indicting Putin

Furthermore, only 123 of the 193 United Nations member states are even members of the ICC. The United States, Russia and Ukraine are not among them. Following Russia’s annexation of the Crimean Peninsula, Kyiv accepted the court’s jurisdiction, but did so without ratifying the Rome Statute, which established the court in 1998. That acceptance is why investigators from The Hague are now able to look into possible war crimes in Ukraine, and they have been in the country since March. The Ukrainian judiciary is conducting its own investigations as well. And in accordance with the principle of universal jurisdiction, which applies to this kind of crime, 14 European Union countries have also launched their own investigations, including Germany.

Theoretically, it would be possible to personally indict Putin, relevant members of his cabinet and his top generals for suspected war crimes, such as attacks on hospitals. Serbian leader Slobodan Milošević also appeared before a special UN tribunal for genocide. But such a process would be far more complicated, says Sands, the international law expert. It would be necessary to prove the individual responsibility of those in leadership for the crime in question. It is far easier to prove who issued the order to invade.

An air defense base in Mariupol on February 24, the day of the Russian invasion.

An air defense base in Mariupol on February 24, the day of the Russian invasion.

Foto: Evgeniy Maloletka / AP

In either case, the question of feasibility must be addressed. How might it be possible to drag Putin physically into court? Under certain conditions, international criminal law allows for court proceedings in absence of the defendant. A conviction would significantly limit Putin’s freedom of movement. And it would send a strong political signal.

Ukraine found immediate support for its aims among its smaller partners in Eastern Europe, including the Baltic states, Poland and the Czech Republic. In spring of this year, the Parliamentary Assembly of the Council of Europe and the European Parliament also passed resolutions in support of such a tribunal. But Ukraine’s larger partners in the West long preferred to hold back, and Kyiv thought it knew why. "Some countries may condemn the invasion, but they don’t want to completely close the door on negotiations with Moscow," said Andriy Smyrnov, Zelenskyy’s deputy chief of staff, in an interview with DER SPIEGEL in August.

European Commission Favors a Tribunal

Since the end of November, though, there has suddenly been movement on the issue. European Commission President Ursula von der Leyen issued a demand that Russia must also pay for the crime of aggression. The Commission proposed the creation of an ad hoc tribunal, similar to tribunals previously established by the UN Security Council to focus on former Yugoslavia and on Rwanda. In this case, however, such a tribunal would require support from the UN General Assembly, since Russia would exercise its veto in the Security Council.

A General Assembly resolution would not be sufficient to force Russia to cooperate with the tribunal, but it would give the court the international legitimacy it would need. A draft resolution on the issue is apparently already making the rounds at UN headquarters in New York.

On the day that von der Leyen made her proposal, November 30, the French Foreign Ministry also issued a surprising statement indicating for the first time its openness to the establishment of a special tribunal. Members of French parliament, the Assemblée Nationale, had already approved a resolution on the issue. International law experts were taken off guard by Paris’s about-face. Just recently, French Foreign Minister Catherine Colonna had expressed concerns that a tribunal established specifically for Ukraine could undermine the authority of the ICC in The Hague. It wasn’t clear what was behind the shift in position. Observers wonder if Paris might believe that the threat of legal proceedings could be enough to get Putin to back down.

"This would be an opportunity to send a clear signal, similar to 1945 in Nuremberg, that aggression is a crime."

Christoph Safferling, international law expert

A small delegation from Kyiv recently traveled to Paris, Berlin and Washington to promote the idea of a tribunal. The team is led by the young lawyer Anton Korynevych, a special representative of the Ukrainian Foreign Ministry. "Paris was a great success," he says over the phone from Washington, despite being rather short on time. His schedule in the U.S. capital includes meetings with members of Congress, representatives from the administration of President Joe Biden and think tank experts. The American leg of the Ukrainian roadshow also promises to be successful.

The White House hasn’t yet expressly endorsed a special tribunal, but Beth van Schaack, the State Department’s ambassador-at-large for global criminal justice, recently adopted a conspicuously positive tone. "This is something Ukraine wants, and I think that’s going to carry a lot of weight," van Schaack said recently with regard to the proposal making the rounds in the UN General Assembly. She also indicated that the U.S. government could release intelligence information to support investigations. Experts note that one reason the U.S. could be in favor of such a tribunal is that it wouldn’t necessarily strengthen the idea of international jurisdiction, a concept of which Washington has traditionally been skeptical.

Yet Another Sign of Western Dominance?

The stop in Berlin, though, was likely a bit less encouraging for the Ukrainian delegation under Korynevych’s leadership. The Ukrainian legal expert politely noted that discussions had been "fruitful," and that there is a draft resolution pertaining to a special tribunal in circulation in German parliament, the Bundestag. The conservative opposition in Berlin has, in fact, indicated its intention to make such a proposal. "It would be disastrous if soldiers in the lower and middle ranks could be brought to justice, but the senior-most military and political leadership could not," the draft resolution reads. The business-friendly Free Democrats (FDP) and the Greens, both of which are currently part of Germany’s governing coalition, are fundamentally supportive of the idea, but the Social Democrats of Chancellor Olaf Scholz remain skeptical.

German Foreign Minister Annalena Baerbock has also been relatively reserved thus far when it comes to demands for a special tribunal. "The ability to prosecute wars of aggression internationally is important to us," Baerbock told DER SPIEGEL. "But precisely because there are numerous open questions regarding the prospects of international prosecution of the 'crime of aggression’ – legal, practical and political – we must be careful when approaching the issue that we don’t throw the baby out with the bathwater. It is imperative to ensure that the International Criminal Court is not weakened, but strengthened."

Baerbock’s reservations aren’t just rooted in fundamental concerns that a special tribunal could undermine the work of the ICC. They are also the product of a strategic dilemma: Behind the scenes, the Green Party politician has been working hard since the very beginning of the war to ensure that the international community remains as unified as possible against Russia – including the countries of the Global South, on which Moscow has been showering attention in recent years. Baerbock is concerned that such countries could see a special tribunal as yet another sign of Western dominance.

German international law experts are divided. Many are skeptical of the idea of a special tribunal and would instead prefer to see the ICC strengthened. Andreas Schüller, an expert on international crimes at the European Center for Constitutional and Human Rights in Berlin, believes that a special tribunal would be in danger of becoming politicized or being politically denounced. He also fears that it would ultimately produce little more than a symbolic arrest warrant, if Putin wasn’t ever extradited. "I would prefer to see the German government pursue an amendment to the ICC statute allowing for aggression to be investigated even without the approval of the aggressor."

Christoph Safferling, professor for international law at the University of Erlangen-Nürnberg, is also unconvinced by the idea of a special tribunal. "I am a bit divided," he says, "because this would be an opportunity to send a clear signal, similar to 1945 in Nuremberg, that aggression is a crime." And to do that, a special tribunal is necessary. But if it is created, Safferling says, it shouldn’t just be responsible for the crime of aggression, but for all of the crimes committed in this war, including any that may have been perpetrated by Ukraine. He adds that it is imperative that Ukraine become party to the International Criminal Court.

It is, of course, fair to ask why Kyiv hasn’t yet taken that step. President Zelenskyy has long indicated that he is prepared to do so. But he is also aware of the ICC’s limitations. The international legal instruments available, Zelenskyy said recently, are not sufficient for justice.

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