Chances are slim that Vladimir Putin will soon stand in the dock facing criminal charges for his illegal war in Ukraine, but the legal vise is tightening nonetheless on the Russian dictator. On Monday, the Biden administration formally endorsed the establishment of a special tribunal to try Mr. Putin and his henchmen for the “crime of aggression” — the charge faced by Nazi and Japanese defendants in the post-World War II trials in Nuremberg and Tokyo.
That momentous step put Washington in step with key allies, and set the West on a course toward holding Moscow’s imperialist plotters accountable for Europe’s most ruinous war in more than seven decades. The decision should be applauded, even as a thicket of legal questions it raises remains to be untangled in the years ahead.
It is critical that the Russian troops and commanders who have marauded through Ukraine be investigated and tried for war crimes, including crimes against humanity. Progress toward that goal is already underway, under the auspices of investigations involving the International Criminal Court in The Hague and the United Nations’ Independent International Commission of Inquiry on Ukraine. Mountains of evidence and documentation have been collected in support of future prosecutions for murders and executions of Ukrainian civilians, torture, sexual violence, the forcible separations of children from their families, and the shelling of civilian infrastructure.
But it would be an incomplete and unjust project to amass evidence and pursue trials against Russian soldiers, without also holding their masters in the Kremlin responsible for the decision to unleash an illegal war in the first place.
The ICC took an important step this month by issuing arrest warrants for Mr. Putin and the Russian commissioner for children’s rights, Maria Lvova-Belova, for their alleged roles in the mass abduction and transfer to Russia of Ukrainian children. That marked the first time the court has issued an indictment targeting officials of one of the five permanent members of the U.N. Security Council.
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But the court lacks jurisdiction to charge Mr. Putin and other top Russians for undertaking what was known at Nuremberg as “crimes against peace.” Hence the momentum that has built over the past year to establish a new judicial mechanism that could transform a moral imperative into formal legal proceedings.
On Monday, a senior State Department official for the first time gave Washington’s approval for a special tribunal based in Ukraine’s own judicial system that would also include international features, which might involve judges or prosecutors from other countries, including the United States and its European allies, and a physical presence in The Hague or elsewhere. That model, said Beth Van Schaack, the U.S. ambassador at large for global criminal justice, in a speech at the Catholic University of America, “will facilitate broader cross-regional international support and demonstrate Ukraine’s leadership in ensuring accountability for the crime of aggression.”
That hybrid model, which she called “an internationalized national court,” triggered criticism from some human rights lawyers. Some of them favor the creation of a new international court rather than one rooted in Ukraine’s own legal system, under which sitting heads of state can claim immunity from prosecution. There are further concerns that the Biden administration, especially the Pentagon, is reluctant to help establish a new international court that could, conceivably, target U.S. officials for past or future alleged transgressions in war. The United States is not a member of the ICC, a decision taken more than 20 years ago out of concern that it could be targeted in politically motivated prosecutions.
There’s no dispute that the question of sovereign immunity for Mr. Putin and other legal issues, including whether he could be tried in absentia by any court, pose potential future complications. Nonetheless, the fact is that in a prosecution for the crime of aggression, tantamount to waging an illegal war, a claim of immunity by Mr. Putin might succeed or fail in any court, depending on its judges’ ruling. And if Mr. Putin were ever apprehended to stand trial, an admittedly improbable scenario, it would probably only happen if and when he leaves office, in which case, as a private citizen, he would no longer have a claim to immunity.
Like Mr. Putin, Serbian strongman Slobodan Milosevic seemed untouchable as he pursued his nationalist project over more than a decade in power, until 2000. Yet he became the first sitting head of state to be charged with war crimes, and died in 2006 in his prison cell in The Hague, where he was standing trial in the International Criminal Tribunal for the former Yugoslavia.
The form, nomenclature and rule book of any tribunal that undertakes a prosecution for launching a war of aggression in Ukraine are less important than the message the tribunal transmits, not only to Mr. Putin but also to the coterie of yes men and oligarchs who do his bidding. They have all become too comfortable in power, confident in their own impunity. In one way or another, they should be made to answer for the unwarranted bloodbath they have inflicted on a sovereign nation.
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