washington —
In December, Ukraine President Volodymyr Zelenskyy summoned his ambassadors from around the world to discuss his foreign policy priorities for the new year.
Meeting in Kyiv, Zelenskyy gave the assembled diplomats “tasks and assignments” for the coming year, recalled Ukraine Ambassador-at-Large Anton Korynevych.
One of his main priorities for Ukrainian diplomacy, Zelenskyy told the group, was the creation of “an ad hoc special tribunal for the crime of aggression against Ukraine,” according to Korynevych, who is Ukraine’s point person on the issue.
This was not the first time Zelenskyy was demanding accountability for Russia’s aggressive war, without which, Ukrainian officials say, other crimes such as the atrocities in Bucha and Irpin would not have happened.
Going back to Russia’s invasion of Ukraine, in 2014, Kyiv has turned to every available international court to push legal claims against Moscow; the International Court of Justice, the European Court of Human Rights, the International Tribunal for the Law of the Sea.
“We’re in all the courts, but we see that these mechanisms and tools are not enough,” Korynevych said during a recent panel discussion at the New York City Bar Association. “There is no international court or tribunal which can try … Russian political and military leadership for the commission of the crime of aggression against Ukraine.”
Considered a “leadership crime,” the crime of aggression is defined as the “planning, preparation, initiation or execution” of an act of aggression such as an armed invasion by a country’s top political and military leadership. In the case of the Ukraine conflict, as many as 20 officials could be implicated, according to Korynevych.
In contrast to the painstakingly difficult-to-prove war crimes and crimes against humanity, proving the crime of aggression is relatively straight-forward. The evidence, according to the State Department’s top war crimes adviser, can be seen “on our front pages every day.”
To show what a case against Russia would look like, the Open Society Justice Initiative has drafted a 65-page “model indictment” that names Russian President Vladimir Putin and seven subordinates. Others have suggested including Belarusian officials since Belarus has allowed Russian forces to stage attacks on Ukraine from its soil.
The International Criminal Court (ICC), created in 2002 to deal with crimes of war, has the power to prosecute the crime of aggression but it can’t investigate Russian officials for aggression because of a legal quirk: Russia is not a "state party" to the Rome Statute that established the court. While the United States played a central role in the establishment of the Rome Statute that created the ICC, the U.S. isn’t a "state party" either.
Ukrainian courts face a legal hurdle of their own.
While the Ukrainian prosecutor general’s office has been investigating senior Russian officials for their alleged complicity in the crime, prosecutors can’t bring charges in the case because under international law top Russian officials enjoy immunity in Ukrainian courts.
Hence, Ukraine’s call for a special court to prosecute the crime.
A special international tribunal is the “most feasible and efficient route for accountability,” Prosecutor General Andriy Kostin said during a recent event at Georgetown Law Center. The center works closely with Kostin’s office.
Ukraine’s push for a special tribunal, like its plea for tanks and fighter jets, was once seen as a long shot.
But as Western nations amp up efforts to beat back the Russian invasion, Ukraine’s advocacy of “no peace without justice” is finding increasingly receptive ears among its international backers.
In recent months, the proposal for a special tribunal has been endorsed by the European Parliament, the Council of Europe, the Organization of Security and Cooperation in Europe, NATO, as well as several foreign governments such as Britain and Germany.
As a precursor to the tribunal, the European Commission this month announced plans to launch a prosecutor’s office in The Hague to investigate the crime of aggression and identify potential defendants.
All that has imbued Ukrainian officials with renewed optimism that their once seemingly elusive goal may be closer at hand.
“Now is the momentum for the international community to hold Russian aggressors accountable for the most flagrant act committed on European soil since 1945,” Kostin said.