Would Prosecuting Russia Prolong the War in Ukraine?

Do Not Delay

Rebecca Hamilton

Ukrainian President Volodymyr Zelensky is calling for the creation of a special international tribunal on aggression that could hold Russian President Vladimir Putin to account for starting an illegal war in Ukraine. Although the International Criminal Court is investigating the war crimes and crimes against humanity being committed in Ukraine, it has no jurisdiction to prosecute Russian leaders for the crime of aggression. In other words, while the ICC can prosecute crimes committed during the ongoing war, it cannot prosecute the foundational crime of Russia launching its illegal war in the first place. To fill this gap, legal scholars have proposed different types of ad hoc tribunals. Ukraine and other eastern European states want to see an international tribunal backed by the UN General Assembly. The Biden administration supports the formation of what it calls “an internationalized national court,” to help Ukraine prosecute the crime of aggression.

Not everyone, though, thinks that prosecuting aggression is a good idea. In their essay, “Can Ukraine Get Justice Without Thwarting Peace?” (May 8, 2023), Brian Finucane and Stephen Pomper argue that a tribunal to prosecute Russian leaders for the crime of aggression risks a “full-on collision between the interests of peace and justice.” They claim that the “geopolitical costs and practical challenges” of such a tribunal have thus far been overlooked in the voluminous conversations on the topic. They write that a “big push to prosecute Russian leaders for starting the war signals a desire to remove Russia’s leadership, risks escalation, and would almost surely complicate diplomacy to bring the war to an end.”

But as their analysis parenthetically concedes, these dynamics are already in play thanks to an arrest warrant for Putin, issued by the ICC on March 17. That warrant launched the very parade of diplomatic horribles that Finucane and Pomper fear an aggression tribunal could unleash. One might add that plenty of actions outside of international criminal law, including the West’s massive supply of weapons to Ukraine, present much the same risks. In short, all the escalatory concerns they fear from an aggression tribunal already exist.

Finucane and Pomper also raise the concern that a tribunal to prosecute Russian aggression would “reinforce the view of global South countries that the United States and its allies see international criminal justice institutions as a selective tool that applies only to their adversaries.” This concern is a serious one, but it can be addressed without needlessly abandoning Ukrainian victims. There is no reason why a special tribunal to hold Russian leaders accountable for the crime of aggression cannot be created while simultaneously working to broaden the international criminal justice project. Of course, this will be challenging. But settling for the status quo fails to match the moment. Instead, what is needed is for the international community to stand in solidarity with Ukraine’s call for criminal accountability in the face of Russia’s manifest violation of international law.

A WARRANT AT WORK

Finucane and Pomper write that the potential upsides to an aggression tribunal “seem more rooted in aspiration than a sober assessment of costs and benefits.” It is a conclusion they reach by way of the accurate observation that Putin, or other leaders who would be targets of an aggression prosecution, are unlikely to be brought into custody anytime soon. This, they say, means that an aggression tribunal faces a choice: conduct a trial in absentia or pursue no trial at all. This is a false binary, however, which miscasts how international criminal tribunals operate.

First, holding a trial without Putin is an unlikely option. Although some domestic jurisdictions, including Ukraine, allow such trials, they are generally frowned on at the international level because of the fair trial rights of defendants under international human rights law. Laying it out as one of two choices is largely a distraction.

Second, and more significantly, to suggest that a trial is the only action worthy of assessment here overlooks a key difference between domestic and international criminal courts. Precisely because international criminal defendants typically take years to bring into custody, the ability of international courts to issue arrest warrants takes on immense significance. The value of an arrest warrant is hard to see when using a domestic law lens, where a warrant’s primary value lies in its ability to bring a suspect into custody. A warrant from an international aggression tribunal, though, would begin its work on several levels well before its target ever enters the courtroom.

Peace and justice do not align by magic.

To begin with, an international warrant would attract global attention and help disseminate a message about how the world views unlawful conduct. Few believe that legal condemnation will deter Putin’s aggression at this point. But it is still worthwhile to signal to other would-be aggressors that the international community will not allow the crime of aggression to go unchecked.

An international arrest warrant also delegitimizes its target and creates diplomatic embarrassment that can erode a leader’s political power. For all his bluster, Sudanese President Omar al Bashir was incensed when the ICC issued an arrest warrant against him in 2009. It stung when foreign diplomats avoided inviting him to events and sidelined him from photo opportunities. Over time, international diplomatic isolation helped embolden his domestic opponents. Similarly, an international arrest warrant contributed to the domestic overthrow of Serbian President Slobodan Milosevic long before he set foot in The Hague. Only after voters ousted Milosevic in favor of a leader who could fully represent them on the world stage did Serbia’s new government, reading public sentiment and under pressure to sever ties with a branded war criminal, hand Milosevic over for international prosecution. In Putin’s case, the ICC warrant provoked a months-long diplomatic drama over whether South Africa should “un-invite” him from a summit in Johannesburg in August. Ultimately, South Africa decided to issue blanket diplomatic immunity to all leaders attending, opening the door for Putin to come. Over time, these diplomatic headaches could translate into political gains for Putin’s domestic opponents. Adding the crime of aggression to Putin’s charge sheet would strengthen these existing dynamics.

The one thing the ICC’s warrant against Putin does not (and cannot) do is acknowledge the harm suffered by the victims of aggression. These victims include both Ukrainian civilians forced to flee and the Ukrainian soldiers forced to defend their homeland. They also include, less obviously perhaps, the thousands of Russians conscripted into an illegal war. When Russia launched its war in Ukraine in February 2022, it committed a crime against a much larger pool of people than just those who have tragically suffered war crimes at the hands of Russian soldiers. To bear witness to their loss at the international level is an essential function of prosecuting the crime of aggression. 

JUSTICE FOR ALL

As Finucane and Pomper rightly note, the establishment of an aggression tribunal for Ukraine, and Ukraine alone, raises the specter of selective justice, already a serious concern for those in the global South, who see the United States and its allies as wielding international criminal law only when it suits them. One response to this reality is to oppose the establishment of a tribunal. Yet this doubles down on injustice, forsaking the interests of Ukrainian victims. A better response is for the international community to support the establishment of a special tribunal, while working to expand the jurisdiction of the ICC so that it can bring aggression cases against the nationals of more states, including powerful ones, in the future.

The maximal version of this expansion would entail an amendment to the Rome Statute to enable the ICC to pursue aggression charges against anyone in its jurisdiction, just as it does for genocide, war crimes, and crimes against humanity. This is the least politically viable option, since it would create the possibility of the court prosecuting nationals from the United States, China, Russia, or any other states that have not joined the court, whenever those nationals commit crimes on the territory of a state that has joined the court. Still, if the Biden administration was serious about prosecuting the crime of aggression in Ukraine, then this approach would unequivocally allay fears that international criminal justice is not just another tool for great powers to use against their adversaries.

More realistically though, even a less ambitious expansion of the court’s reach could make headway in addressing this concern about fairness. As a starting point, all states that are already part of the ICC could commit to ratifying its amendments on aggression and to refrain from adopting the opt-out provisions it offers. Such a commitment by the many Western nations that have joined the court would signal to those in the global South that their concerns about selectivity are being taken seriously.

Crucially, prosecuting Russian leaders for the crime of aggression would address the legitimate complaint that international criminal justice is overly focused on leaders from African countries. (To date, 47 out of the 52 arrest warrants issued by the ICC have been for people from African nations.) A case against Putin would be the first international aggression prosecution ever considered against the head of a veto-wielding member of the UN Security Council, an institution that epitomizes how the most powerful states are often exempt from the rules that apply to everyone else. It would be perverse, to say the least, if this were to be the situation on which the international community finally made a stand against selective justice.

TRUE PEACE REQUIRES JUSTICE

At the heart of Finucane and Pomper’s argument is the idea that pursuing justice for Russia’s illegal war would make it even more difficult to bring the war to an end. But after decades of debate about the “peace versus justice” conundrum, one essential takeaway has emerged: over the long run, sustainable peace requires accountability, and the question of sequencing depends on the context, with the views of those most directly affected—victims and their communities—being key.

No one is more attuned to the risks facing Ukraine as it seeks to end a war it did not start than the Ukrainian government itself. For Ukraine, there is no benefit in waiting to pursue an aggression tribunal. Any Ukraine-specific downsides that will flow from establishing a tribunal, such as complicating negotiations and signaling a desire to remove Putin, are already in play thanks to the ICC arrest warrant. Many potential upsides, such as the further delegitimization of Putin’s actions and expressed solidarity with his political opponents, would come as the result of the international community coming together to establish such a tribunal.

Ultimately, only an arrest warrant for the crime of aggression can tell the families of Ukrainian soldiers killed in an unlawful war that the world cares about their loss. And only an arrest warrant from an aggression tribunal would signal to the thousands of Ukrainians who fled Russia’s illegal war that the pain of their dislocation and loss of an imagined future is visible to the international community.

Finucane and Pomper conclude with a call for the status quo, urging governments to continue supporting the work of the International Centre for the Prosecution of the Crime of Aggression, which supports the European Union’s investigatory work on the crime of aggression, while holding back on doing more “until the day when the ends of peace and justice are more clearly aligned.” But such passivity will not suffice. Peace and justice do not align by magic: the international community needs to take action to create the conditions for both to be realized.

Finucane and Pomper Reply

Hamilton’s response walks through many of the standard arguments in favor of creating a new tribunal while the war continues to rage, but like much of the literature on this topic, it relies on unsupported claims. She also gives short shrift to the geopolitical context in which this and other international criminal justice efforts are pursued.

At the core of Hamilton’s rebuttal is her contention that “the escalatory concerns [we] fear from an aggression tribunal already exist” because the International Criminal Court has already issued a warrant for Russian President Vladimir Putin’s arrest on war crimes charges and because the West provides military support to Ukraine. We strongly disagree with the claim that the ICC’s action somehow inoculates the West against the risks of establishing a new tribunal.

For one thing, the ICC is an independent, formally apolitical actor with a mandate that extends well beyond the war in Ukraine. The United States (which is not an ICC member but supports some of the court’s efforts) and other Western countries can therefore separate themselves from its actions regarding Putin. That would not be the case should they move forward with the special tribunal that Hamilton and others envisage. The United States and its partners would need to launch a campaign to get the votes required at the UN General Assembly. A strong showing will be required for the court’s legitimacy and perhaps also to satisfy UN voting requirements. Assuming such a campaign succeeded (which is not guaranteed given how unpopular the idea is in the global South), both the court’s creation and its subsequent efforts could be seen by Moscow only as a U.S.-led drive toward regime change, since the tribunal’s foundational purpose would be to try Putin. Even if the United States proceeds down the path it currently prefers—creating a hybrid body in the Ukrainian judiciary—its fingerprints will be all over the court’s work, particularly if it lends judges and prosecutors to the court’s staff.

Moreover, although it is certainly true that ICC warrants already create an obstacle to any peace-making efforts, setting up a new institution will surely complicate them further. Without a change of leadership in the Kremlin, it is virtually inconceivable that any deal with Russia could be reached without the criminal charges against Putin being dropped. Should that moment arrive, navigating the ICC warrants will be challenging enough. Negotiating the actions of a new international tribunal—operating under a separate legal framework and governed by its own institutional logic—would add further complexity, uncertainty, and delay.

Nor are we persuaded by the analogy to supplying Ukraine with weapons. The United States has calibrated its military support for Ukraine to match its war aims, helping Kyiv position itself to achieve a just and sustainable peace while forgoing direct involvement and aid that Washington considers too dangerous in terms of potential escalation. But there is no way to reconcile, much less calibrate, the creation of a tribunal that presupposes Russian regime change with U.S. war aims, which very plainly disavow that goal.

We want to underscore the lack of global support for the idea of a tribunal.

We agree with Hamilton regarding the dubious legitimacy of in absentia prosecutions, but the possibility of such trials is hardly as remote a possibility as she suggests. During a March visit to The Hague, Ukraine’s prosecutor general, Andriy Kostin, advocated for an aggression trial even if Russian leaders cannot be brought to court in person, saying, “It’s important to deliver a matter of justice of international crimes even if the perpetrators are not in the dock.”

We also question Hamilton’s discussion of how prior international arrest warrants have functioned in practice. The handful of precedents she cites—such as Serbia and Sudan—are of limited relevance in predicting the consequences of threatening regime change against a country that boasts the world’s largest nuclear arsenal and is a permanent member of the UN Security Council. Moreover, although she is correct that former Sudanese President Omar al-Bashir found the ICC’s warrants noisome, he remained in power for ten years following the issuance of the first one and, to this day, has not been delivered to The Hague. Meanwhile, Sudan has descended into civil war. One can debate the impact of the ICC warrants on political developments in Sudan, but it is very difficult to have a constructive discussion about the tensions between peace and justice without focusing on the specific details of this and other conflicts, as opposed to relying on broad generalizations.

The same goes for present-day Russia. Hamilton claims that an international arrest warrant “could translate into political gains for Putin’s domestic opponents.” Russian politics can be unpredictable, but there is little evidence that the ICC arrest warrant already issued has empowered a more democratic Russian opposition or is likely to do so. Indeed, as illustrated by the recent Wagner mutiny, one can envision a leadership change bringing more, rather than less, autocracy. The prospect of a Kremlin shakeup leading to chaos and state fragmentation—which, though highly remote, also came into focus during Wagner’s march on Moscow—is another scenario that seems quite undesirable given the country’s massive cache of nuclear weapons.

We respectfully question the categorical assertion that “sustainable peace requires accountability.” In some instances—generally internal armed conflicts—this may be true. It is also the case that accountability is good in its own right. But when it comes to interstate wars, comprehensive accountability has been all too rare, yet this has not necessarily precluded the cessation of fighting and rapprochement between former adversaries. For example, it is hard to imagine that U.S. or Vietnamese performance in the Vietnam War would survive a judicial scrubbing for atrocities—and yet, for better or worse, reconciliation has proceeded without it. Our point is not to compare these very different conflicts, but to point to the mismatch between Hamilton’s claim about the relationship between peace and accountability and the reality of how some conflicts are resolved.

Finally, we want to underscore the lack of global support for the idea of a tribunal, which implicates both its viability and potential legitimacy. Although Hamilton focuses on the problem of selective justice, concerns in countries in the global South about the proposed tribunal extend well beyond that. Many non-Western countries also take a dim view of pressure to pick a side in a conflict far from their shores by creating or supporting a carceral instrument directed at one of the parties, as well as the possibility that this could interfere with efforts to end a dangerous and economically damaging war. Indeed, one element of the peace proposal that a delegation of African leaders recently brought to Kyiv and Moscow was to suspend the ICC warrant for Putin’s arrest

We support accountability for international crimes committed by Russia in Ukraine—including for the crime of aggression—if that becomes practicable and does not interfere with efforts to end a war that, because of the countries involved, quite literally poses a risk to all human life. We hope this becomes possible. But as Hamilton reminds us, peace and justice will not align themselves by magic. For exactly this reason, there is more work to do in securing peace before the most ambitious efforts at seeking justice can be responsibly pursued.