On March 4th, the Minister of Foreign Affairs of Ukraine Dmytro Kuleba and prominent international lawyers presented a declaration on a special tribunal to punish the crime of aggression against Ukraine during an event of the Royal Institute of International Affairs or Chatham House.
It is not the first such declaration in history. A similar one was signed during the Second World War, which subsequently resulted in the Nuremberg trials where Nazi leaders were tried for war crimes.
Notably, according to international law, aggression is a crime, but there are no effective ways to prosecute the Russian leadership for it at the moment. Thus, the declaration aims to close this gap.
That is only the beginning of this path, and it is essential to consider all possible options for prosecuting the aggressors. During the first days of the new Ukrainian war for independence, Russian invaders have already committed many violations of international law and war crimes.
This article will explain those crimes and ways of punishing the Russian leadership for them.
International crimes: what are they?
International law provides a classical quartet of international crimes: genocide, crimes against humanity, war crimes and crime of aggression. Persons responsible for those crimes can be prosecuted nationally and in international courts and tribunals.
First on the list is genocide. It includes an intention to destroy, in whole or in part, national, ethnic, religious or racial group. There is not enough evidence that Russian leadership intends to commit genocide against Ukrainians. However, Ukraine used the Genocide Convention to file a claim against Russia before the International Court of Justice, more details are in the article "Genocide Allegations in The Hague".
Second - crimes against humanity, meaning widespread or systematic killings, torture, detentions and other violent actions of comparable cruelty.
Third - war crimes. These are specific violations of international humanitarian law (put it simply, rules of armed conflicts), such as intentional attacks without distinction on civil population and objects; wearing insignia of another party's armed forces; using civilians and protective emblems like ICRC for covering military objects; attacks on cultural property etc. There is evidence of Russian crimes in this regard.
The last crime from the mentioned quartet is the crime of aggression. We focus on it separately.
Crime of aggression
By implementing a full-scale assault on Ukraine in violation of the United Nations Charter, Putin and his retinue committed the international crime of aggression, part of the Rome Statute and customary international law.
It's a crime, without any doubt. Moscow attempts to justify its actions with an allegation about imaginary "genocide of Russians", the desire to "denazify" Ukraine and the protection of Russia against NATO are far from being legitimate grounds for the invasion. On March 3rd, the UN General Assembly, by a record vote of 141 in favour, confirmed that the Russian aggression constitutes a manifest violation of the UN Charter.
Subjects of the crime of aggression are members of the leadership of a country that pursues aggression. In the case of Russia, those individuals are Putin, the minister of foreign affairs Lavrov, the minister of defence Shoigu, senior leadership of the Russian army and other Russian senior officials, taking part in planning and exercising aggression against Ukraine. In Nuremberg, the minister of foreign affairs of Nazi Germany Ribbentrop and other senior officials of the Third Reich were convicted.
Management of Russian state-owned and private companies, financing or actively supporting aggression against Ukraine also can be tried for this crime, as it happened in Nuremberg in respect of the management of several German companies, for example, German industrialist Alfred Krupp.
The Kremlin criminals can be tried even in their absence (in absentia). Their immunity as the leadership of Russia is also not an invincible obstacle for this process.
Of course, there are differences from the times of the Nuremberg trial. Many Nazi leaders were subject to capital punishment at that time; that is not realistic in Europe nowadays.
International Criminal Court
It is potentially possible to hold Putin and members of his regime accountable in the International Criminal Court (ICC) in The Hague.
On February 28th 2022, the ICC Prosecutor informed that he is planning to seek authorization from the Pre-Trial Chamber of the ICC to investigate crimes against humanity and war crimes in Ukraine. On March 2nd, 39 State Parties of the Rome Statute supported him and made a referral to the ICC to investigate crimes committed in Ukraine.
Based on this, the ICC's representatives urgently head to Ukraine to gather the evidence.
In this light, it's important to recall the history of relations between Ukraine and the ICC.
After the Revolution of Dignity, the Ukrainian Parliament, by 324 votes, supported a declaration to grant the ICC jurisdiction over crimes against humanity committed on Maidan. In 2015, Ukraine submitted the second declaration with the support of 271 MPs accepting the ICC jurisdiction over crimes committed in the course of Crimea's occupation and armed conflict in Eastern Ukraine.
These declarations were needed as Ukraine did not ratify the Rome Statute (the founding document of the ICC), albeit signing it in 2000. So, for investigating the situation in Ukraine, the ICC needed the prior acceptance of its jurisdiction by our country.
Although the Office of the ICC Prosecutor finished a "preliminary examination of a situation" around one year ago, the case was not moving further.
Ukraine was off the ICC's radar for the simple reason: the ICC Prosecutor preferred to prioritize investigations regarding State Parties to the Rome Statute, which paid membership fees and citizens of which also needed justice, instead of investing funds and efforts in other countries on Ukraine. At the same time, Ukraine has not ratified the Rome Statute yet, albeit it is obliged to do so according to the EU Association Agreement.
The new wave of Russian aggression has changed the plans of the ICC Prosecutor, Karim A.A. Khan QC.
The full-fledged investigation has become inevitable.
That said, the ICC may investigate crimes against humanity and war crimes, while the situation with the crime of aggression is more complicated. The Rome Statute sets forth specific requirements for the jurisdiction over the crime of aggression: the ICC is authorized to investigate only aggression executed by citizens of a State Party to the state party against a State Party. The Russian aggression against Ukraine does not meet the requirements.
It is possible to overcome this restriction via referring the case to the ICC by the UN Security Council's resolution. However, as a permanent member of the UN Security Council, Russia will veto such a resolution until the Putin regime remains in power.
Meanwhile, there is an alternative way to hold Putin and Russian leadership accountable for the crime of aggression.
The road to "The Hague tribunal"
International lawyers do not like when journalists use the term "The Hague tribunal" in respect of the potential international responsibility of the Putin regime for its crimes.
First of all, such a tribunal does not exist.
This designation is proper only for describing the International Criminal Tribunal for the Former Yugoslavia – a special judicial body that functioned in The Hague for investigating a specific spectrum of events with geographical and temporary limitations. Permanent international courts in The Hague, including the ICC, can't be described like this.
That said, the mentioned designation may become relevant soon.
Ukraine proposes to create a special international ad hoc or hybrid tribunal for the investigation of the crime of aggression, and invites the other states to join.
Albeit, it is not sure that the tribunal against the Russian leadership will be set up in The Hague. There is an option already proposed: the Kharkiv tribunal.
On the one hand, such a choice would point to the Russian barbaric shelling of the second-largest city in Ukraine by using artillery and aviation. On the other hand, it draws parallels with the first public trial of Nazi criminals, which in 1943 took place in Kharkiv. At that time, three Nazi soldiers and one Russian collaborator were at the dock. They were sentenced to death on the count of what we call war crimes today.
The best examples are still the Nuremberg and Tokyo tribunals and the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). These are the only historical examples of special ad hoc tribunals considering crimes committed during a single conflict: World War II, the wars between the former Yugoslav republics and the bloodiest year of the civil war in Rwanda.
The Nuremberg and Tokyo tribunals dealt with three types of crimes: crimes against peace (the crime of aggression in modern parlance), war crimes and crimes against humanity. Also, the ICTY and ICTR could prosecute individuals for genocide, while there was no need to prosecute crimes against peace.
How can such an ad hoc tribunal be established in respect of the Russian war? The mentioned tribunals were created on different grounds. The Nuremberg and Tokyo tribunals were formed by the Allies after World War II. The ICTY and ICTR were set up by the UN Security Council. Both ways are not very promising under the circumstances.
In the present case, the likely scenario is the formation of the tribunal by an international coalition, which will require a great deal of global unity. Given the 141 votes in favour of the UN Resolution condemning Russia's war against Ukraine, this is possible indeed.
It seems that Ukraine has chosen precisely this way.
Unlike the ICTY and ICTR, such a tribunal will likely not deal with a wide range of crimes and only complement the ICC in terms of the crime of aggression. The jurisdiction of the ICC does not cover the latter.
During the Chatham House event, the following options have been voiced. First, the coalition of states can enter into an international treaty containing a statute of the new tribunal. The treaty will define the tribunal's jurisdiction and crimes it can investigate (primarily aggression). Second, Ukraine and the United Nations could conclude such a treaty.
The UN General Assembly and Council of Europe can enhance the legitimacy of such a tribunal. These bodies may recommend its creation as the UN Security Council's resolution will be blocked by Russia.
Finally, every state is obliged to prosecute international criminals. It creates a legal basis for forming such a tribunal and prosecuting Putin's regime even if Russia refuses to cooperate.
Hybrid tribunal and national courts
After the downing of Malaysia Airlines Flight MH17, the international community actively discussed the formation of a hybrid (internationalized) tribunal.
At the time, this idea was not implemented due to the anticipated Russian veto in the UN Security Council. Today, the execution of this idea may be considered again, including bypassing the Russian veto.
Hybrid tribunals can have different constructions. The combination of international and national components is their common feature: applicable law, judges and prosecutors, funding, seat, language etc.
So far, several different hybrid tribunals have been established worldwide: in Sierra Leone, Lebanon, East Timor, Cambodia, and Kosovo. The UN Security Council played an active role only in the first two tribunals' creation. Other tribunals were formed differently: a UN mission's decision (East Timor), a recommendation of the UN General Assembly (Cambodia) or an agreement with the EU (Kosovo).
Therefore, Russian unwillingness is not an absolute obstacle to forming the internationalized tribunal.
However, the absence of the proper international status may complicate the prosecution of the Russian political and military leaders. It is far from evident that an internationalized tribunal set up only upon the recommendation of the UN General Assembly will have teeth to condemn Putin and other Russian top leaders.
Also, the hybrid tribunals' jurisdiction has never covered the crime of aggression.
While middle and lower ringleaders can be prosecuted by both a hybrid tribunal and individual states.
Although national authorities are cautious in prosecuting international criminals, unrelated to their state and not charged in violation of rights of their citizens.
Conclusion: prospects and why it matters
Punishing the Russian leadership and servicemen for international crimes is realistic, but there are challenges. It requires a strong international coalition.
The carte blanche to prosecute international criminals is usually present only in two cases: (1) the aggressor's complete surrender and (2) the UN Security Council's resolution.
Considering minor prospects of these two scenarios, at least as of today, Ukraine has proposed to create a special criminal tribunal on the crime of aggression. As the world is unprecedentedly united against the Russian threat, there is a chance that such a tribunal will be set up indeed.
Even if Putin and his closest aides are convicted in absentia, the very fact of their international criminal responsibility will stigmatize them in the eyes of the world, ensuring their complete and permanent isolation. Also, with the regime change in Russia, the chances that they will serve their sentences will increase dramatically.
It is also possible that some Kremlin supporters will agree to cooperate with the international community in the investigations to avoid isolation.
As Professor Philippe Sands noted during the Chatham House event, in 1942, when the formation of a similar tribunal was initiated, nobody knew for sure that the Nazi top officials would will be convicted in Nuremberg soon .
But it happened.
Dmytro Koval, Associate Professor of International Law, National University of Kyiv-Mohyla Academy
Mykhailo Soldatenko, Senior Associate, Asters law firm