Following Kyiv’s call for a special tribunal to prosecute Russian President Vladimir Putin and his most senior allies for the crime of aggression, an international push is underway to hold them criminally responsible for the war in Ukraine Putin initiated.
The crime of aggression is described as the supreme international crime from which other war crimes follow.
So while the world’s attention is still focused on Ukraine, Western governments, diplomats, and legal experts are debating how to start a type of tribunal that has not been held since the trials in Nuremberg and Tokyo of senior German and Japanese leaders in the aftermath of World War II.
Loudest among them is David Scheffer, who served as US ambassador-at-large for war crimes issues under President Bill Clinton and has negotiated the creation of the International Criminal Court (ICC) as well as five other war crimes tribunals for the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia.
If a majority of its 193 member states of the United Nations recommend a tribunal be formed, according to Scheffer, the UN General Assembly can drive the process.
Although several European countries and the ICC are already investigating suspected war crimes in Ukraine, it’s not clear what courts have the authority to try the potential case that might be made against Russia.
Scheffer reminded that the ICC does not have jurisdiction over the crime of aggression with respect to the Russian invasion of Ukraine, partly because Russia is not a member of the court.
He pointed out that UNGA has the authority to initiate a tribunal that will deal with the crime of aggression, investigate, and prosecute it, adding, however, that it was to be expected that some states, such as Russia, would not cooperate.
Although it would take some time for such a court to be fully operational, Scheffer wants to see the tribunal formally created by June this year.
He’s well aware that even if Putin is indicted for the crime of aggression, he’ll likely remain out of reach in Russia unless there’s a change of regime there but believes that there is still value in pursuing him since an indictment against him for war crimes or for aggression, which have no statute of limitations, will hang over his head forever.