Ukrainian officials are increasing their calls to establish a special tribunal to criminally prosecute Russian President Vladimir Putin and target the core group of advisers and military officials they say are responsible for carrying out the assault on their country.
But Kyiv has yet to settle on the best way forward, and that decision raises tricky legal questions of jurisdiction, as well as funding support and political will from Ukraine’s international partners.
The end goal is to hold Putin accountable for the crime of aggression for invading Ukraine.
The crime of aggression, which is described by Kyiv as the original sin, has only been prosecuted once, at the Nuremberg Trials in the aftermath of World War II.
Kyiv hopes to use a special tribunal to bolster other efforts to pursue justice for tens of thousands of alleged war crimes being documented and investigated, including allegations of genocide.
“The crime of aggression is the alpha and omega of the war,” Andriy Yermak, the head of the Office of the President of Ukraine, said in an address to the U.S. Institute of Peace earlier this month.
“To start a criminal and unprovoked war is to open the door to thousands of crimes committed during hostilities and in the occupied territory,” he added.
Anton Korynevych, the Ukrainian government’s point person on establishing such a tribunal, told The Hill in an interview that Kyiv is working to secure buy-in from the U.S. and European partners on establishing such a court — in whichever form it takes.
“We had conversations in capitals, in particular concerning the concrete models and options, we heard some feedback which options might be feasible, more efficient,” he said. “I do not want, still, to talk publicly about that.”
Two big issues are establishing a court of jurisdiction, and getting around Putin’s immunity from prosecution as head of state, known as “sovereign immunity.”
It’s unclear if Ukrainian officials will seek to only go after Putin and other high-ranking officials, or the Russian state as a whole.
“There are legal challenges which are obvious. For instance, the issues of immunities, which is the obvious elephant in the room,” Korynevych said. “But I’m sure that all these legal challenges, we’re going to work out, whenever there’s political will to work it out.”
Korynevych, who serves as ambassador-at-large for the Ministry of Foreign Affairs of Ukraine, said it is “impossible” to comment on the timeline of establishing such a court, saying it depends on the “readiness of our partners.”
Ukraine is looking at three options for establishing a tribunal, he said.
One would be an agreement between Ukraine and the European Union to establish a tribunal in Europe, an idea endorsed by European Commission President Ursula von der Leyen.
The other two options would involve the United Nations General Assembly, either directing the U.N. secretary-general to enter into an agreement with Ukraine, or endorsing a multilateral treaty between Ukraine and a majority of member states to establish such a court.
“All the options are on the table,” Korynevych said. “We are discovering, deliberating, trying to find the most feasible one. Whichever option we choose, it will need to get support from as big a majority of states as it will be possible, because obviously for reasons of legitimacy and credibility, such a tribunal must be backed by the international community.”
Celeste Kmiotek, a staff lawyer at the Atlantic Council’s Strategic Litigation Project, said that bilateral or multilateral treaties between states establishing an international court, and endorsed by an international body — such as the U.N. or European Union — can help get around sovereign immunity for individuals.
“That would create a court that would most likely be considered international according to international law, such that Russian leaders, including Putin, would not be subject to personal immunities,” Kmiotek said.
“This would be focused on the immunities of individual representatives of Russia rather than Russia as a state,” she added.
Supporters of this method say it gets around pitfalls with the International Criminal Court (ICC) that hamper Ukraine from going after Putin and other Russian leaders for the crime of aggression.
While the ICC has a mandate to investigate the crime of aggression, it does not hold jurisdiction with respect to Russia and Ukraine — both states are not party to the courts founding document, the Rome Statute, nor the Kampala Amendments that established the ICC’s jurisdiction for the crime of aggression.
The ICC is already investigating alleged war crimes committed on Ukrainian territory, as Kyiv has accepted the court’s jurisdiction in this respect.
And while the United Nations Security Council could vote to task the ICC with investigating the crime of aggression, Russia would block such an effort with its veto.
“There’s a quirk, and that is that the ICC simply cannot exercise jurisdiction over the crime of aggression with respect to the Russian invasion of Ukraine,” David Scheffer, a senior fellow at the Council on Foreign Relations and who led the U.S. delegation to the U.N. talks that established the ICC, said during the United States Institute of Peace event earlier this month.
But ICC prosecutor Karim Khan is arguing against a special tribunal, saying the court has the ability to go after high-ranking Russian officials if the focus remains on war crimes and genocide.
It’s unclear where the U.S. falls on such a debate.
A State Department spokesperson told The Hill that the administration is reviewing proposals for a special tribunal dedicated to the crime of aggression, seeking to “remain in lockstep with Kyiv’s strongest partners as we consider Ukraine’s proposal … as well as all other options for holding Russia and its leaders to account.”
The U.S. is helping Ukrainian prosecutors investigate war crimes allegations on its territory — an estimated 50,000, according to the prosecutor’s office.
Focusing on those crimes could lead to holding Putin responsible, or other top officials, Beth Van Schaack, ambassador-at-large for Global Criminal Justice, told reporters in a briefing last month.
“In terms of Putin, we know that there are doctrines that enable criminal responsibility to go all the way up the chain of command. This is the doctrine of superior responsibility,” she said. “I think it’s particularly relevant when we look at the kinds of patterns that we’re seeing of abuses across all areas where Russia’s forces are deployed. These are not the acts of individual units, necessarily.”
Korynevych said he heard concern from lawmakers in Washington, Paris and Berlin that Ukraine’s push for a special tribunal should not undermine the work of the ICC.
“We are very clear and frank that we do support the ICC. Our idea to establish a Special Tribunal for crime of aggression is not to impede, is not to hamper, is not to interfere with the ICC, it’s just to complement the International Criminal Court with a mechanism which would work with only one crime, crime of aggression against Ukraine,” he said.
“And in our particular case, in case of aggression against Ukraine, ad hoc tribunal, and it surely should be, not a large number of suspects in such a tribunal.”
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