Russian dictator Vladimir Putin’s attack on Ukraine in February 2022, which triggered the largest military conflict on European soil since the Second World War, revealed a significant gap in international justice. While war crimes and crimes against humanity committed during the war in Ukraine fall under the jurisdiction of the International Criminal Court (which has already issued an arrest warrant for Putin over the abduction of Ukrainian children), and countless individual abuses are being reviewed by the European Court of Human Rights, no judicial institution is currently authorized to prosecute the crime of aggression itself — a crime the Nuremberg Tribunal once described as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
It is this legal gap that the special tribunal is designed to fill. Likely to be located in The Hague, the court’s membership will be open to countries beyond the Council of Europe. The tribunal’s 15 judges as well as the prosecutor and deputy prosecutors will be elected by member states. The sole crime over which the tribunal is authorized to indict, prosecute and convict is the crime of aggression, defined as the decision by one state to use armed force against another in violation of the U.N. Charter. This is, by definition, a “leadership crime”: While war crimes can be committed by any individuals regardless of rank, only those in positions of power can decide to start a war — and in the case of Russia’s personalistic dictatorship, this specifically means Putin.
And this is what the main point of contention among the tribunal’s founding states is likely to be. While Council of Europe officials are pointing to judicial immunity for sitting heads of state as an obstacle to indicting Putin as long as he remains in the Kremlin, this claim is at best dubious. With two resolutions adopted in 2023 and 2024, the Council of Europe’s own Parliamentary Assembly has recognized Putin’s presidency past May 7, 2024 as “illegitimate” because his personal waiver from term limits violated both Russian and international legal norms. The European Parliament has reached the same conclusion. Clearly, a usurper has no right to the protections afforded to legitimate leaders.
But, regardless of how the question of immunity is decided at this stage, the creation of the special tribunal is of monumental importance for the future — not only of Ukraine and of Europe as a whole, but also of Russia itself.
As I have argued many times, the main reason for the failure of Russia’s democratic transition in the 1990s — a failure that led us to where we are today, including the war in Ukraine — was the lack of accountability for crimes committed by the Soviet regime, both against its own people and against other countries. Vladimir Bukovsky, a prominent author and dissident, spent many months in 1991 and 1992 trying to convince the Russian government to organize a public Nuremberg-style trial for former leaders of the Communist Party and the KGB. In his landmark legal opinion issued in November 1992, Russian Constitutional Court Judge Anatoly Kononov argued for holding the former regime responsible under the relevant international statutes, including those relating to “genocide, war crimes, and crimes against peace and humanity.” But these calls went unheeded: Russia’s democratic leaders were unwilling to “rake up the past” and dismissed the idea of trials as a “witch-hunt.” “In that case the witches will return and start hunting us,” Bukovsky warned Kremlin officials at the time — and turned out to be exactly right.
There will be another window of opportunity for political change in Russia — and this time, it must not be squandered. Achieving real accountability for crimes committed by Putin’s regime is essential if a post-Putin Russia is to become a functioning democracy and rejoin the international community. After the fall of Slobodan Milosevic’s regime in 2000, the West made his handover to the International Criminal Tribunal for the former Yugoslavia at The Hague a priority for the normalization of relations. Serbia’s new democratic government delivered the former dictator there in June 2001. It took eight years from the establishment of the International Tribunal in 1993 to Milosevic’s first appearance in the dock.
I hope that Putin makes this journey far quicker.
