WVladimir Putin in court. Accused and finally sentenced to life imprisonment for war crimes – that should not only apply to many millions of people in the Ukraine be a pipe dream. For months, the democratic world has been discussing how the Russian war against Ukraine could be legally punished.
Ukrainian President Volodymyr Zelenskyy is not alone in his call for a special tribunal. Russia must “pay for its terrible crimes, including the crime of aggressive war against a sovereign state,” said EU Commission chief Ursula von der Leyen recently and meant that not only financially. The heads of state and government EU have pledged “that Russia and all perpetrators and accomplices will be held accountable”.
Parliament and the Foreign Ministry in France are open to a special tribunal, as are Poland, the Czech Republic, Sweden, the Baltic countries, the European Parliament and the parliamentary assemblies of the Council of Europe and the Organization for Security and Cooperation in Europe. In Great Britain, former Prime Minister Gordon Brown, among others, is campaigning for an international coalition of states to decide on the establishment of a court. Ben Ferencz, the last living prosecutor at the Nuremberg war crimes trials of the Nazi regime’s masterminds, also supports the idea. If Putin claims Russia act out of self-defense, he could bring it up in court – then you’ll see what’s up, says the 103-year-old lawyer.
There would be plenty of charges. But while the Russian atrocities in Ukraine are undisputed, opinions on the purpose of a special tribunal differ widely. Some warn that such a tribunal could International Criminal Court weaken who is already investigating in Ukraine.
The Criminal Court has jurisdiction to prosecute genocide, crimes against humanity and war crimes, though in this case not the Russian crime of aggression against Ukraine. Russia has never acceded to the statute of the International Criminal Court, nor have dozens of other countries, most notably the United States. In order to investigate Russia, the court needed the approval of the UN Security Council, but Moscow has a veto there. It’s as if the police had to ask a murderer for permission to arrest him.
Many are now calling for the Criminal Court’s powers to be expanded to include aggression by non-state parties. But the chances of success for such a reform are uncertain, and the debate over it could last for years. The crimes in Ukraine are happening now.
Hence the idea that a broad coalition of states should set up an ad hoc tribunal, a specially created court with jurisdiction only over the war in Ukraine. But what about its acceptance in the Global South? Wouldn’t there be talk of Western victors’ justice there? After all, whatever the differences, American crimes in Iraq and Afghanistan have never been atoned for, and the former US President George W Bush will not have to answer for the torture of Abu Ghraib.
There is still no end to the war in sight
There are many more questions. What is clear is what will not work. The war crimes trials in Nuremberg and Tokyo in the 1940s are not a model. Germany and Japan had surrendered unconditionally, were defeated and occupied – things will never get that far with Russia as a nuclear power. Trials from Ukraine in Ukraine would be suspected of lacking objectivity from the outset. Nonetheless, no one doubts that an intensive investigation into Russian war crimes, whether by a special tribunal or a properly staffed and funded section of the International Criminal Court, would be very important. Even if an end to the war is not yet in sight.