Foreign Affairs: Russia’s Crime and Punishment: How to Prosecute the Illegal War in Ukraine

2023-01-17 | Expert publications, International tribunal

By Oona A. Hathaway. As the conflict in Ukraine is about to enter its second year, Ukraine and the West are accelerating efforts to ensure that Russian President Vladimir Putin doesn’t get away with his illegal war. That has meant the West supplying weapons that were previously off the table, but it has also meant renewed attention to accountability. In November, Ukrainian President Volodymyr Zelensky made clear that justice is a key condition for peace. “This,” he explained, “is what stokes the greatest emotions.” But while there are courts where Russians can be prosecuted for war crimes, crimes against humanity, and genocide, a major piece is missing: there is nowhere to try Putin and other top Russian leaders for launching the war in the first place. For this, a special tribunal for the crime of aggression is needed.

For months, Ukrainian representatives have been quietly working to generate support for a special tribunal. The proposal picked up steam in mid-December, when the president of the European Commission, Ursula von der Leyen, endorsed the creation of a tribunal and pledged to “start working with the international community to get the broadest international support possible for this specialized court.” In mid-December, while accepting the European Union’s top human rights award, Zelensky called on states to form a special tribunal to prosecute “the crime of Russian aggression.” At the same time, a Ukrainian delegation, hoping to capitalize on the momentum, arrived in Washington, D.C., seeking U.S. support for a special tribunal.

The effort to establish a special tribunal may seem quixotic. After all, plenty of criminal investigations into crimes committed by Russians during the war are already underway in both domestic and international courts. Why add another court to the mix? But without a special tribunal for the crime of aggression, the fundamental crime of launching and waging this illegal war—a crime without which the other crimes would not have taken place—would go entirely unpunished. Creating a court that has jurisdiction to try this crime is an essential step in the global effort to reject Russia’s blatantly illegal war and, with it, Putin’s willingness to destroy the modern international legal order in pursuit of a new Russian empire.

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