Ukraine lays down two principles for future "tribunal for Putin"

Last week, the Office of the President of Ukraine posted news about the meeting of the Deputy Head of the Office of the President of Ukraine, Iryna Mudra, with the Ambassador of Japan to Ukraine, which, however, the media left almost unnoticed.

However, it looks like this information was aimed not at Japanese or even Ukrainian readers, but at some European officials and diplomats. European Pravda can assure you that they have received this signal.

After all, this is a very sensitive and important topic.

In the "Japanese" press release, Iryna Mudra announced two key principles on which a special tribunal for the crime of aggression, which the media and politicians informally call the "tribunal for Putin," must be based. Kyiv's principles are intended to ensure that international criminals Vladimir Putin, Sergei Lavrov and Russian Prime Minister Mikhail Mishustin will be among the defendants. As European Pravda has discovered, it was not so obvious to Ukraine’s Western partners that they had to condemn those three for the attack on Ukraine.

Why the Kremlin warrants a special tribunal

"We have two key principles on which the tribunal must be based. It must be strictly international. Secondly, there can be no personal immunity for the highest officials of the aggressor state."

At the meeting with the Japanese Ambassador was the only quotation in the press release, and it documents a serious shift in the vision of the special tribunal by the Ukrainian government.

The tribunal is intended to eliminate a gap in international criminal law. According to international norms, aggression is a crime. This crime is the simplest to prove, but there is no effective punishment. There is indisputable evidence of aggression, and the leadership of the aggressor state gave the order to attack. However, there is no effective punishment for this aggression, because the international community has not agreed on it. Due to this gap, the International Criminal Court is forced to look for other, more complex cases to hold the Russian leadership accountable. For example, an arrest warrant for Putin was issued in a case involving the deportation of Ukrainian children.

Thus, the main crime of aggression, from which other war crimes of the Russians stem, goes unpunished.

To address this problem, Ukraine and partner states have been negotiating the creation of a special tribunal for the crime of aggression since 2022. However, the success of these negotiations has been limited, which is why the government has publicly acknowledged the lack of practical progress on the tribunal.

Everyone agrees that a tribunal for Putin is needed, but they cannot agree on how it should look.

The reason for the delay is no secret: the issue is that several Western states, Ukraine's key partners (including the USA, the UK, France, etc.), also pursue an aggressive international policy. 

Of course, there can be no question of equating their actions with those of Russia. However, some modern operations by Western states (such as countering Houthi attacks in Yemen or military operations against the "Islamic State" in Syria and Iraq) could potentially, with due creativity, fit the classic definition of aggression. 

Therefore, these capitals approach the issue very cautiously to ensure that the mechanism found is not potentially applied against them.

Until now, they were guaranteed that the world tried to address security issues through the UN Security Council, where the world's key military powers are represented. They have always had the opportunity to block unacceptable decisions for them. But since Russia also holds a permanent seat on the UN Security Council, any substantive decision by this body regarding Russian aggression is impossible.

Therefore, the world has to look for alternatives.

"Burying" the hybrid tribunal

Ukraine has been insisting from the beginning that the tribunal for Putin must be an international body created by a UN decision, bypassing the Security Council. After all, there is also the UN General Assembly in the organisation, which unites all the countries, and where Ukraine (with the support of its partners) traditionally manages to gather more votes for its initiatives than the number of states opposing. However, this idea does not excite Ukraine's Western partners, including the US, whose role in collecting votes is decisive.

Instead, Western states are promoting a scheme called a hybrid tribunal, or, formally, an internationalised tribunal.

Ukraine has never liked the "hybrid" option, but pressured by the West, Kyiv publicly agreed to it. In February 2023, Andrii Yermak even made a statement that Kyiv would not agree to it. But such a public refusal was made only once.

Ultimately, Kyiv had to publicly agree to the "hybrid" option under Western pressure.

In August 2023, the then Deputy Head of the Office of the President Andriy Smyrnov publicly announced such sacquiescence was subject to certain conditions.

And before that, Prosecutor General Andrii Kostin admitted in an interview that Ukraine was forced to consider the idea of a hybrid tribunal.

However, it seems that this softening of Kyiv's position is in the past. Smyrnov no longer works for the Office of the President, which assures they "had never agreed" to consider the hybrid option.

Kyiv now insists on an "exclusively international" tribunal, which will be created as a separate international organisation and will not be part of the Ukrainian judicial system. And this time, it looks like Kyiv's position is about principle.

The "Third Way" with the Council of Europe

Several guiding principles inform this toughening of Kyiv's stance.

In addition to the body’s status, Kyiv has a principle regarding its powers: "There can be no personal immunity for the highest officials of the aggressor state."

The thing is that this yet-to-be-established court is not unofficially called the "tribunal for Putin" for nothing. The crime of aggression is an "elite" crime, and only the highest officials who planned and ordered the attack are subject to prosecution. Ukrainian diplomats and lawyers estimate that there will be about 20 Russians in the tribunal "dock," with Putin at the top.

But for many of Ukraine's partners, the conviction of the incumbent head of state, even if it's Putin, is unacceptable.

In international law, there is a term called the "troika" – the president (head of state), the prime minister and the foreign minister, all of whom have immunity from criminal prosecution in other countries during their tenure. Overcoming this immunity is possible, but not easy. For example, no immunities apply to the International Criminal Court.

Last year, when Ukraine agreed to consider a hybrid tribunal, Kyiv simultaneously informed its partners that it didn't think it possible to create a tribunal if it couldn't overcome the "troika" immunities.

And indeed: what's the point of a trial for aggression that "ignores" Putin's guilt?

Meanwhile, according to European Pravda, this problem has not been resolved.

There was another discussion on this issue at the Core Group meeting in early March in Vienna, where representatives of EU institutions put forward another idea of a hybrid tribunal with legal caveats that as long as Putin, Lavrov, etc., hold positions, they cannot be prosecuted.

And even a trial in absentia cannot extend to the current leadership of the Russian Federation.

So, it turns out that Ukraine's move regarding the hybrid tribunal led to negotiations that resulted in a format for a new court that does not meet Ukraine's expectations. Which is likely one of the reasons for giving up on the "hybrid tribunal."

Moreover, Kyiv now has new hope that it will manage to overcome opposition to the international tribunal.

Purely theoretically, there are three options for creating a special tribunal bypassing the UN Security Council. One of them is the hybrid option. The second is the creation of a tribunal by the UN General Assembly, but that currently looks unrealistic. And the third option is the creation of a tribunal as a new international organisation or a "branch" of an existing one. But it is necessary to find a partner organisation with a good reputation that is not afraid of consequences from Russia and would have sufficient authority to conduct such work.

At the aforementioned meeting in Vienna in early March, the Council of Europe proposed precisely this vision. Ukraine is placing its main hopes on it. And the important thing is that other states have also become interested in the Council of Europe's idea, as our sources claim.

Negotiations are still ongoing. It is too soon to say whether they will lead to the creation of a tribunal that would effectively convict the Russian leadership, say European Pravda's sources. Perhaps it will become more clear after the next Core Group meeting in May in Vilnius, the topics of which include the trial in absentia, Putin's immunity, and so on.

The tribunal "under the Council of Europe umbrella" also has its drawbacks. In particular, involving other states in it is a challenge, but without their participation, the tribunal may lack political legitimacy in the rest of the world. Ultimately, any organisations created to resolve conflicts – especially to administer punishment without the UN Security Council's approval – can be called imperfect.

The Council of Europe's readiness to take bold steps has been demonstrated practically. In particular, this organisation created a Register of Damages from Russian aggression, which paves the way for compensation for affected Ukrainians. This register, also created as a separate international organisation, has been successfully operational and recently announced the opening of applications.

Sergiy Sydorenko

European Pravda, Editor