Are Politics Compelling the West to Withdraw Support for a Special International Criminal Tribunal for Ukraine?

20-09-2022

Ryan Haigh

International Justice and Human Rights Researcher

Global Human Rights Defence

Members of European Parliament, as well as Ukrainian officials, have been supporting efforts to create a special criminal tribunal to handle charges of crimes of aggression. The crime of aggression encompasses planning, preparing, initiating, or executing an act of aggression by an individual who exercises control over the political or military acts of a State. [1] Acts of aggression include invasions, bombardments, blockades, and the general use of armed forces against another State. [2] Ukrainian prosecutors have identified more than 600 potential suspects for crimes of aggression so far. [3]

On 5 May 2022, Members of European Parliament passed a resolution with text supporting the creation of a special tribunal for this purpose. [4] On 24 August 2022, Ukrainian representatives disclosed that an international treaty for the special tribunal to be established has been drafted, at it may now be signed by State governments. [5] Amdrii Smirnov, deputy head of the presidential administration of Ukraine, who is spearheading the operation, stated that he intends for the special tribunal to begin its work next year. Smirnov notes that in this way, individuals like Putin will bear the label of criminal and their freedom of international travel will be curtailed. [8]  On 5 September 2022, Roberta Metsola, former President of European Parlaimant affirmed that the body will continue to support such a tribunal. [9] 

Despite this apparent unified front, on 6 September 2022, high-ranking Ukrainian officials disclosed that Western nations are now concerned that creating a special tribunal with the authority to try Vladimir Putin and other Russian leaders may curtail necessary diplomatic maneuvering with Russia. [10].  The US’s reluctance to take these steps is allegedly reflected in President Biden’s decision on 5 September 2022, to refrain from designating Russia as a state sponsor of terrorism.  [11]  Ukrainian government official Oleh Gavrysh stated failing to bring charges against Putin and his leadership “will be like trying the concentration camp directors and letting Hitler and his team walk free.” [12]  Only time will tell whether the West will support Ukraine in these efforts when faced with difficult diplomatic choices. 

Notes:

[1] Amendment to Article 8 of the Rome Statute of the International Criminal Court (entered into force 26 September 2012) 2868 UNTS 195.

[2] UN General Assembly Definition of Aggression (14 December 1974) UN Doc A/RES/3314.

[3] Agence France Press (AFP), ‘Ukraine Plans International Court to Put Putin on Trial’ (France24, 25 August 2022) < https://www.france24.com/en/live-news/20220825-ukraine-plans-international-court-to-put-putin-on-trial> accessed 5 September 2022 (AFP).

[4] Snjezana Kobescak Smodis (Press Release), ‘Ukraine: MEP’s Want a Special International Tribunal for Crimes of Aggression’ (European Parliament News, 19 May 2022) < https://www.europarl.europa.eu/news/en/press-room/20220517IPR29931/ukraine-meps-want-a-special-international-tribunal-for-crimes-of-aggression> accessed 5 September 2022. 

[5] AFP (n 3).

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] EU Reporter Correspondent, ‘In Brussels, Ukraine Seeks Backing for Special War Crimes Tribunal’ (EUReporter, 8 September 2022) <https://www.eureporter.co/world/ukraine/2022/09/08/in-brussels-ukraine-seeks-backing-for-special-war-crimes-tribunal/> accessed 16 September 2022. 

[10] Isobel Koshiw, ‘West Reluctant to Put Putin on Trial, Say Ukrainian Officials’ (The Guardian, 6 September 2022) <https://www.theguardian.com/world/2022/sep/06/west-reluctant-to-put-putin-on-trial-say-ukrainian-officials> accessed 16 September 2022. 

[11] Ibid.

[12] Ibid.