It could be so easy. If one country invades another, it violates the Charter of the United Nations (UN). The International Criminal Court (ICC) in The Hague can then act not only for genocide, crimes against humanity and war crimes, but also for a so-called crime of aggression – in other words: for a war of aggression. Will Russian President Vladimir Putin soon be put on trial for the attack on Ukraine?
Unfortunately, it’s not that simple after all. Because while international law experts believe that there is already enough evidence to try Putin and his top officials for a crime of aggression, the International Criminal Court lacks the authority to do so. Russia has not recognized the Rome Statute on which the ICC is based. Neither does the United States. The arrest warrant that the criminal court issued against Putin in mid-March for alleged war crimes is therefore unlikely to have any direct consequences for him.
The UN Security Council could direct the ICC to investigate a crime of aggression, but Russia is a permanent member there – and will likely block the prosecution with its veto power. So what to do?
Ukraine has a clear idea: it urges the UN General Assembly to create a special international tribunal. Russia has no right of veto there. The model for the tribunal would be the Nuremberg trials, in which the most important war criminals after the Second World War were held accountable. “A lasting peace is only possible if we also hold the aggressors to account,” Ukrainian President Volodymyr Zelenskyj said recently during his visit to the International Criminal Court. But the West hesitates. Especially the US.
As US news magazine Newsweek reports, citing Ukrainian officials, the United States was hesitant to set a precedent. The reason for this is their own previous offenses abroad, for which they may also be prosecuted. Instead of a special UN tribunal modeled on the Nuremberg trials, the Western partners favor a hybrid model.
Ukrainian law as a basis? Those are the problems
The special tribunal would be based on Ukrainian law, supplemented by “international elements”. Federal Foreign Minister Annalena Baerbock (Greens), herself a graduate of international law, suggested this option earlier this year. However, Ukraine complains that this kind of special court would not lift the legal immunity of world leaders. Heads of state and government can only be tried in international courts, not national courts.
The hybrid variant will also probably be less accepted if the basis is Ukrainian rather than international criminal law. The charge that the judgment was biased would inevitably arise.
“A Terrible Sign”
“Newsweek” quotes lawyer Jennifer Trahan, a professor at the Center for Global Affairs at New York University (NYU), as saying that this model is not suitable for waging a war of aggression. Maintaining Putin’s immunity would “send a terrible signal to other potential aggressors”. She, too, explains the reluctance of the US to fear prosecution for its own past crimes.
Anton Korynevych, the Ukrainian ambassador for setting up the special tribunal, is convinced he can still convince the skeptics. In his view, an international court would “close a very important gap in the accountability that currently exists in the international criminal justice system”. Enough votes are needed for the UN General Assembly to create a special tribunal modeled on the Ukrainian model. Difficult without the US and major European countries, but not impossible.
A “Nuremberg moment” has now arrived for legal scholar Trahan, she told “Newsweek”. “We shouldn’t screw it up.”
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I am Amelia James, a passionate journalist with a deep-rooted interest in current affairs. I have more than five years of experience in the media industry, working both as an author and editor for 24 Instant News. My main focus lies in international news, particularly regional conflicts and political issues around the world.
