By Ambassador Rein Tammsaar, Permanent Representative of Estonia to the UN. Originally published on Just Security, 9 May 2023.
The grand old man of rule of law and legal order, the late Benjamin Ferencz, who was behind the definition of the crime of aggression, once said “The five Permanent Members, those most capable of threatening the peace, would decide whether the use of force was criminal or not. The hawks insisted upon being the guardians of the chicken coop.”
Decades later, Ferencz’s prediction is proving all too true. Russia is waging an unlawful war of aggression against its sovereign neighbor Ukraine. And all the while Russia is using its permanent status on the Security Council and its right of veto to shield its bloody trail of war crimes, which include killing, raping, torturing civilians, abducting Ukrainian children, and looting.
While Russia has successfully blocked any action against its aggression in the Security Council, the U.N. General Assembly resolutions, adopted with an overwhelming majority, have been instrumental in condemning Russia’s crimes. Most recently, in February, 141 countries supported the establishment of a just and lasting peace in Ukraine, in full conformity with the U.N. Charter. Operational Paragraph 9 of this resolution demands that Russia must be held accountable for most serious crimes committed in Ukraine.
Fighting impunity has become no less important than reinforcing Ukraine’s self-defense (in full accordance with Article 51 of the Charter). By now, criminal proceedings against hundreds of suspected perpetrators have been initiated in Ukraine and elsewhere. A Joint Investigation Team has been established as well as the International Center for Prosecution of the Crime of Aggression against Ukraine. The International Criminal Court (ICC) has opened an investigation into the situation in Ukraine on war crimes, crimes against humanity, and genocide, and issued arrest warrants for Russian President Vladimir Putin and the Russian Commissioner for Children’s Rights, Maria Lvova-Belova.
And yet, there is a missing link, a judicial loophole – impunity for the crime of aggression that unleashed all the other crimes and atrocities in Ukraine.
Creating an International Tribunal to Prosecute Russian Aggression
If the Security Council does not act, only a special international tribunal for the crime of aggression against Ukraine can overcome the immunity conundrum and prosecute Russia’s top leadership for the mother of all crimes – the crime of aggression. A tribunal based on an agreement between Ukraine and the U.N. Secretary General, endorsed by the U.N. General Assembly, would enjoy sufficient international legitimacy allowing to go after top Russian leaders, including the Troika (the head of State, head of government, and minister for foreign affairs). They are the real masterminds of the aggression. It has been done before via different paths, for example the Special Court for Sierra Leone and the Cambodia Tribunal.
In Legal and Political Terms, an International Tribunal is the Best Option for Accountability
Other alternatives face legal and political roadblocks. The idea of a so-called hybrid tribunal or “internationalized national tribunal” goes against the Ukrainian Constitution (Art 125) and therefore cannot be established, at least in the foreseeable future. It is likely that Russia will establish a replica tribunal in response to the hybrid model. And an attempt to argue that a similar tribunal would need to be established for Iraq, Libya, Afghanistan, and other countries cannot be ruled out despite the prohibition of retroactive application of criminal law. Still, Ukrainian leadership, civil society and victims of the aggression have all spoken in support for an international tribunal. In fact, the same has been heard from numerous Russian opposition figures.
Without full accountability assured by a proper tribunal, there will be no justice and therefore no chance for a just and lasting peace in Ukraine. Postponing justice to a later stage (for instance after the war or after the current Troika leaves office) would only encourage Russia to continue its aggression. It is paramount to anchor the inevitability of prosecution of the current Russian leadership as deep as possible in the international legal order and under international law. This would prevent the perpetrators of the crimes already committed from escaping justice, even if a new Russian leadership with vastly different political inclinations emerges, which is highly unlikely.
Resolve and Deterrence are the Best Remedy Against Russia’s Threats and Intimidation
Russia’s original goals – regime change in Ukraine and extermination of the Ukrainian nation – have not changed. If anything, Putin’s obsession with re-establishing Russia’s former imperial grandeur by bringing its “historic lands” together, and thereby consolidating his personal role in history, has grown even more profound. Either States work toward the establishment of a just and lasting peace in Ukraine or entertain a false hope – fed by the aggressor – that a deal with Putin is possible. The latter option is futile in itself as it would resemble offering Adolf Hitler a face-saving opportunity and negotiations during WWII.
The fear that Moscow can “retaliate” with the usual bunch of lies and propaganda does not overweigh the moral obligation to do what is right for global peace and security, if not for the sake of the millions of victims of the Russian aggression.
The arrest warrants issued by the ICC did not produce any escalation that some had feared. Instead, Russia has attempted to undermine the ICC and its warrants, including by inviting Lvova-Belova to participate in the Security Council’s informal meeting in early April. Nor is there anything new about Russia’s nuclear sabre-rattling, as the Kremlin has used nuclear blackmail with the intention to paralyze the willpower of those helping Ukraine since the full-scale invasion started. In the end, nuclear threats have very little to do with the establishment or non-establishment of a proper tribunal. Even entertaining the idea that the leadership of nuclear States cannot be brought to justice inherently risks trashing the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and undermines non-proliferation. States should not wait for another world war to happen to discredit aggression.
The claim of polarization and selectivity seems unfair, as the whole aim of the undertaking is universal – to ensure justice and delegitimize aggression as a tool of statecraft, as it was after WWII with the Nuremberg trials. The mere establishment of the tribunal itself would be a powerful deterrent against aggression across the globe as it would send a clear political message to potential future aggressors. The same deterrence is badly needed as a credible remedy against further escalation of the current conflict as what is happening in Ukraine fits into a wider behavioural pattern of Russian invasions (2008 Georgia, 2014 Crimea, 2022 Ukraine).
During the last half-century, there has never been a better opportunity to fight back the resurrection of aggression in international affairs. The lasting peace after WWII was not “just” for Estonia and for several other countries because for us, a decades-long brutal Soviet occupation, deportations, colonialization, and russification followed. Today’s aggression is a direct result of atrocity crimes committed by the Soviet Union before, during and after WWII that went unpunished. There was never a proper tribunal to prosecute Soviet totalitarian crimes, and impunity in the past has led to the crimes of today. This vicious circle needs to end.
Seeking the Political Will to Establish a Tribunal
Some claim that States should not move forward because it will be difficult to gather enough votes at the General Assembly. But this is mere speculation without a meaningful attempt to prove the contrary. Meanwhile, the required vote count is a two-thirds majority of the member States present and voting (which means that at a practical level, only “yes” and “no” votes actually matter). In private conversations and during our briefings for the wider U.N. membership, there has been no straightforward rejection of the idea of an international Tribunal. To the contrary, when it comes to accountability to preserve the current legal order with the U.N. and Charter at its core, countries have been rather united and supportive.
The initial reluctance to deal with impunity in Ukraine seems to be receding as our hesitation would only fuel the ongoing aggression. Ukrainians have been paying an extremely high price with their lives for our hesitation already. If States want to achieve a just and lasting peace in Ukraine, and delegitimize aggression again, we should shake off our fears and find the political will to collectively reinforce the legacy of Nuremberg through action by the General Assembly. It is time to move past talk of “support for accountability.” The least we can do when the Core Group for Accountability meets in Tallinn on May 12, is to have an open and serious discussion about our common path forward without hiding our fears and hesitation behind legal arguments. In the end, seeking justice and accountability is a question of political will.