Ukraine’s major western allies have yet to sign up to establish a tribunal to try Vladimir Putin and his inner circle for the crime of aggression, wanting to leave space for future relations with Russia, according to Ukraine’s top officials.
“It’s big politics. On the one hand, countries publicly condemn the aggression but on the other, they are putting their foot in the closing door on relations with Russia so that it doesn’t close completely,” said Andriy Smyrnov, deputy head of Ukraine’s presidential administration, who is leading the country’s effort to establish the international tribunal.
“They are attempting to keep some space for diplomatic manoeuvres,” said Smyrnov. “We know that agreements with Russia are not worth the paper they are written on.”
His claims come as the US president, Joe Biden, said on Monday that Russia should not be designated as a state sponsor of terrorism, something Ukrainian officials and some US politicians had pushed for. Russia had previously said such a designation would mean Washington had crossed the point of no return.
Ukrainian officials say that since April, they have been trying to convince their western allies to establish an ad hoc tribunal which would hold Russia’s senior leadership responsible for the crime of aggression for invading Ukraine. Aggression is viewed as the supreme crime under international law because without the transgression of borders during an invasion, subsequent war crimes would not have been committed.
So far only the Baltic states and Poland have pledged support for the tribunal, said Ukraine’s officials. “We are expecting broader support,” said Ukraine’s prosecutor general, Andriy Kostin. “For us, the support of the UK and the US is very important as well as the rest of the civilised world,” said Smyrnov.
The UK’s newly elected prime minister, Liz Truss, told Times Radio in May, when she was foreign secretary, that she would consider supporting the tribunal. The Council of Europe is due to discuss support for such a measure on 13 September.
At an event in Brussels on Monday, Andriy Yermak – chief adviser to Ukraine’s president, Volodymyr Zelenskiy – asked why there was a delay in creating the tribunal and said some European officials seemed convinced the international criminal court (ICC) was enough.
At the same event, the European commissioner for justice, Didier Reynders, said he was open to the idea, but talked mainly about help the EU is giving to compile war crimes which can be referred to the ICC.
Ukraine favours a one-off international tribunal to try the Russian leadership for aggression, which is not within the ICC’s jurisdiction. The court is set to bring cases of war crimes which require prosecutors to identify the direct perpetrators of a crime and then trace the command structure upwards, making it difficult to reach the top echelons of the Russian regime.
Western allies have, however, been reluctant to move to try Putin and other senior figures, an act that would probably end all relations. Ukraine believes this is an indication that, despite the scale of atrocities and public declarations against Russia, some of its allies envisage possible negotiations with Russia’s current leadership.
“It will be like trying the concentration camp directors and letting Hitler and his team walk free,” said Oleh Gavrysh, part of Smyrnov’s team in the presidential office. During the Nuremberg trials after the second world war, Nazi leaders were tried for the crime of aggression, which was then known as the crime against peace.
Ukraine’s officials say the case would not need much investigation and would act as a straightforward mechanism to ensure the Kremlin’s decision makers face responsibility since the fact that the act of aggression took place was overwhelmingly accepted by a vote at the UN general assembly and has been supported by a resolution of the European parliament. It has also been repeatedly admitted by Putin and his circle.
The legal arm of the Open Society Foundations has drawn up a preliminary indictment of Putin and seven of his closest allies for the crime of aggression. It said it hoped the document can demonstrate the feasibility of such a tribunal.
“When you help the ICC, you donate to the independent judicial authority and you are not linked somehow to the result,” said Kostin, Ukraine’s chief prosecutor. “When you support [a] tribunal, you act as a state, it’s a political act and not all of them, at the moment, are ready to politically support this.”
He added: “Russia is like terra incognita (unexplored territory) for many of them and some of them want to keep some room to, if not be friends again, but to have some relations, which I don’t understand and no Ukrainians will understand.”
Some states have viewed the idea of the tribunal with scepticism because Putin and his men would probably be tried in absentia, said Smyrnov.
“The main thing I want to say to the sceptic countries is that the creation of this tribunal … is not a question of symbolism,” said Smyrnov.
“It makes no difference if Putin is personally present at this tribunal. [If] the majority of civilised countries in the world sign this international agreement to establish the tribunal … we will narrow down and limit the international allies of Putin.
“If Putin’s circle is narrowed down to North Korea and Syria – that will be very good and if [Putin] dies in his own country labelled as an international criminal, that will be concrete punishment.”