Ideas
September 23, 2022 2:23 PM EDT
Smyrnov is the deputy head of the Office of the President of Ukraine

On February 24, 2022, the entire world watched as Russia launched an all-out military invasion against Ukraine. This date marks the start of Russia’s most brutal and unprovoked aggression against Ukraine. It’s too late to predict what will happen next. Now is the time for the civilized world to respond firmly to Russia’s actions in Ukraine.

All of Ukraine has joined the battle against Russia’s armed forces: Ukraine’s president, the government, the Armed Forces of Ukraine, the national guard, diplomats, doctors, firefighters, volunteers, adults and children and, together with them, allied countries which provided Ukraine with military, logistic, tactical, and diplomatic support.

There is no doubt that Russia bears sovereign responsibility for what it has done. Russian soldiers and their commanders who committed war crimes will be held responsible. One question, however, remains open: Should the Russian officials responsible for committing the crime of aggression be held criminally liable? The crime of aggression is often called the “mother of all crimes”—the supreme international crime, which absorbed all other international crimes. And yes, we are talking about Putin and the members of Russia’s National Security Council, who publicly supported the military invasion of Ukraine.

Over the past six months, the Ukraine government and international organizations have registered and are investigating tens of thousands of criminal proceedings involving Russia’s war against Ukraine. They include hundreds of criminal proceedings in allied countries, but not a single proceeding on the crime of aggression—the fundamental crime, from which stems the commission of other war crimes.

The International Criminal Court (ICC) in The Hague, which is investigating Russia’s crimes against Ukraine, can prosecute genocide, crimes against humanity, and war crimes. But it is quite difficult to establish a legal connection between specific crimes and instructions from the Kremlin, and therefore it is difficult to prove the direct guilt of Putin and Russia’s political leaders.

Furthermore, the ICC in The Hague does not have sufficient jurisdictional powers. In order for these powers to acquire the necessary scope, Ukraine and Russia must ratify the Rome Statute of the ICC and the Kampala Amendments to it on the crime of aggression. Obviously, Russia will categorically refuse to do so. Because Russia is a member of the U.N. Security Council, the body is unlikely to formally recognize Russia’s aggression against Ukraine which would allow for the subsequent transfer of the case to the International Criminal Court.

Since the first day of the invasion on February 24, we have been in search of an answer to the following question: How can we bring to justice those who unleashed aggression against Ukraine? We have weighed all the existing mechanisms, including resolutions of the U.N. and the ICC. We have held consultations with some of the most famous international lawyers from around the world. We have concluded that there is a high risk that no one will be held accountable for the aggression, unless a special international tribunal is created, which will be limited only to investigating the crime of aggression against Ukraine.

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We ask for this international special tribunal to be created. We want to create it by signing an open international treaty with the entire civilized world, with all those countries that are ready to give a legal assessment of the barbaric and cruel military policy of Putin and his ruling clique. We understand that this tribunal should not be located in Ukraine. We expect that global leaders should delegate competent judges to the tribunal. We very much hope that while Ukraine is fighting day and night for its right to exist, the international legal doctrine will finally work. Or, this world will simply be doomed.

This is a question for the whole world. If we don’t follow through on these principles, are we ready for the fact that on any given day, a dictator mad with power will declare new territorial claims to some country? Are we ready for new hybrid wars waged by rulers cut off from reality? Will we acquiesce to international blackmail and terror, to a truth mutilated by propaganda? Are we ready to accept the death of tens of thousands of dead innocent people, including many women and children?

I know there is a lot skepticism about this issue. I have heard that this tribunal will have rather a symbolic meaning for Ukraine, since no one will actually force Putin to appear before it. Yes, we soberly understand that the Special Tribunal for the Crime of Aggression will be held “in absentia.” But is it symbolism if the tribunal can call an international criminal a criminal? Is it symbolic that the geography of Putin’s international travel will be limited to countries as removed from democracy as from the stars? Is it symbolic that an international criminal recognized by the Tribunal will find his place in world history precisely as a criminal who cannot enter any country that has acceded to the international agreement on the establishment of the tribunal, where he will be arrested?

Skeptics also like to repeat the thesis: Vladimir Putin won’t go to jail anyway and will die peacefully in his bed. This argument is empty and absurd. Nobody knows how, where, and when Putin will die. But did the bosses of Nazi Germany even think in May 1945 that they would be hanged or go to jail? Did Slobodan Milosevic believe in 1999 that he would die in a cell in The Hague in just five years? Did Saddam Hussein have thoughts about his imminent death?

The mere fact that the International Special Tribunal is preparing indictments and issuing arrest warrants will be an important step towards recognizing global justice.

The strategic need to prosecute the leadership of Russia is to prevent future wars unleashed by crazed dictators. Any evil must be punished and the function of international law, among other things, has a preventive function – as warning and demonstration of unacceptable behavior and actions.

There is no doubt that the creation of the International Special Tribunal will also affect the speed of ending the war. The very fact of the creation of the tribunal will demonstrate even to skeptics that it is no longer possible to shake the hand of Putin and Russia’s leaders. This will finally send them into international isolation and, perhaps, begin to change the attitude towards the war against Ukraine within Russia itself.

Our goal is a fair trial and legal retribution. Even if Putin and the entire elite of the Russian Federation do not physically go to prison, until the end of their days they will be locked up in Russia and a small number of countries that still support the Putin regime.

Therefore, we must create an International Special Tribunal that will indict Putin and Russian leaders, issue warrants for their detention, and pronounce legal sentences.

Russia has committed all types of aggression specified in U.N. General Assembly Resolution 3314. Indictments can be written as early as a few months after the start of the trial.

Why do some European officials object to working actively on the creation of the International Special Tribunal, delaying its creation? Some may think that in this way they save an exit route for negotiations with Russia. Others argue that the EU supports the International Criminal Court in The Hague and this court is enough (although we have already concluded this is not so).

Let’s address these objections.

First, Ukraine is actively cooperating with the ICC. The creation of the International Special Tribunal for the Russia’s crime of aggression against Ukraine will not affect the investigation of crimes in Ukraine by the ICC.

Secondly, if Putin starts aggression against the E.U. countries, it will be very difficult for Europeans to cope with this. Europe lives by the rules established after the end of World War II. Russia, on the other hand, is led by Putin, who has been openly trampling on these rules for more than a decade (since the war against Georgia in 2008).

Third, the reaction of the international community to Russia’s aggression against Ukraine in 2014-2015 was clearly insufficient and led to the full-scale Russian invasion of sovereign Ukraine on February 24, 2022. Now is the time to correct systemic errors.

We must make it clear to all mankind that no one will escape responsibility, no matter how big and strong the aggressor state may seem, just as Hitler and the leaders of Nazi Germany could not ultimately evade responsibility during the 1940s.

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