Prosecuting Putin – How To Try Russia For War Crimes In Ukraine

A UN commission has confirmed international suspicions of war crimes committed by Russian soldiers in occupied Ukrainian territory. The Commission for Inquiry on Ukraine, a task force mandated by the Human Rights Council, has shared findings of widespread brutality, including forced nudity, electric shock torture and sexual violence, with victims ranging from 4 to 82 years of age. This announcement, although disturbing, is nothing new to millions of Ukrainian citizens who have been living with the reality of Russia’s undisciplined and violent occupation. This, along with the recent discovery of over 440 bodies in Izyum has reignited calls for justice. Several different forces are already collecting evidence for use in future trials against alleged perpetrators, including the Ukrainian government, the International Criminal Court, and several NGOs. However, the route that Ukraine chooses to take in prosecuting those responsible for the atrocities will have a resounding effect, meaning that a clear method of doing so must be established.


Given the scope of Russian war crimes and the official confirmation by the UN, a tribunal at the soonest possible date is in order. Some convictions by Ukrainian courts have already begun, such as the trial of a 21-year-old tank commander who shot an elderly civilian from the window of his car. Officials are currently at work gathering evidence of crimes to be used in future tribunals, with one prosecutor telling the BBC that she was processing reports of between 200 and 300 crimes every day. However, there have been differing opinions on how to prepare for such a trial. Ursula Von der Leyen, president of the European Commission, has expressed her interest in trying Putin in the International Criminal Court, which has been gathering evidence since the war began.


The ICC was established after the highly successful Nuremberg trials, which allowed people affected by World War Two the chance to confront high ranking generals and see them justly punished for the wrongs they had committed. Since then, war tribunals have been used to re-establish the rule of law and strength of justice in a country after wartime, as well as convict those who have broken international conventions relating to appropriate conduct in war. Tribunals can also offer a sense of closure to the victims of these crimes, who may regain a sense of control by identifying perpetrators and watching them be sentenced.

Given the manner in which Russia invaded Ukraine, the crime of aggression should be a central axis to any future tribunal. Defined first at the International Military Tribunal at Nuremberg, the crime of aggression is the war crime from which all others stem. The ICC defines it as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Simply put, this crime defines a war that breaks the pre-approved constructs of conflict as set out by the United Nations. It is the basis for every other type of war crime, and should be punished accordingly. This usually deals with leaders at the highest levels of command, holding individuals responsible for the orders they gave and the suffering that was caused as a result.


Unfortunately, the ICC lacks the correct jurisdiction to prosecute high level Russian officials with the crime of aggression. It can not prosecute nationals of non-state parties, and Russia is not a member of the ICC. Notably, Ukraine is also not a member, but submitted to the jurisdiction of the court in 2014, a submission that has since been extended indefinitely. There is work being done within the organization itself to ratify these kinds of failings, but amending this provision would most likely take over one year to complete. A dedicated international tribunal, however, would have the power to tackle the crime of aggression and, most importantly, hold those in positions of power responsible.


Besides the judicial oversights of prosecuting Russia’s most culpable leaders, there are other benefits to creating a dedicated international tribunal. For one, it lines up more smoothly with Ukrainian legislation that forbids the creation of “extraordinary and special courts.” This fear of “special courts” is a hangover from the Soviet era and generally refers to the USSR’s extrajudicial “justice.” However, as explained by Hathaway and Komarov of the Just Security analysis forum, the setting up of an international tribunal that works in auxiliary to Ukrainian courts would allow for the proper prosecution to take place, as it does not fall under the category of a “special court.”


The latter route is one greatly preferred by the Ukrainian government, who have been reported by Politico to favour a Nuremberg-style trial. President Zelensky has demanded an international tribunal in this year’s UN General Assembly in New York, calling on the United Nations to see the Russian Federation as “a state sponsor of terrorism.”  It’s also been championed by the Czech foreign minister, who is currently the rotating president of the Council of the European Union.


Finally, an international tribunal would act as a compelling statement demonstrating the power of democratic legislative procedure, and the consequences of aggression in another state’s territory. As Zelensky underlined in his address to the United Nations General Assembly, “This will become [a] signal to all ‘would-be’ aggressors that they must value peace, or be brought to responsibility by the world.” Throughout this war, there have been a multitude of cases involving rape, torture and execution of civilians, as well as widespread bombing in civilian areas, which are all a direct result of decisions made at the highest level of Russian command. Although in some cases individuals may have committed these actions of their own accord, the crime of aggression is the overarching cause of this war, and as such should be punished justly. Putin has fought most of this invasion on the belief that the West is fractured and decadent, that Ukraine’s allies would not move against the Russian Federation for fear of retribution, and that Ukraine was Russia’s to take. The past seven months has illustrated how wrong he is. This war is far from over, and predictions of exactly when or how it will end change with every passing day. However, it is essential that we establish the best route forward in order to effectively prosecute those most responsible. Only after a fair trial and just punishment can Ukraine emerge from this conflict and regain a sense of peace.


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