Can Ukraine Get Justice Without Thwarting Peace?
Can Ukraine Get Justice Without Thwarting Peace?
Op-Ed / Europe & Central Asia 2 minutes

Can Ukraine Get Justice Without Thwarting Peace?

Now Is Not the Time to Create a Special Tribunal for Russia

Ever since Russia launched its full-scale invasion of Ukraine in February 2022, some of the leading lights in international law have joined Ukrainian and Western officials in calling for the creation of a special tribunal to prosecute the Russian leaders responsible for initiating the brutal, illegal war. The tribunal would be set up specifically to try the crime of aggression—that is, a manifest violation of the UN Charter’s prohibition on the use of force. The International Criminal Court already has jurisdiction over Russian atrocities committed on Ukrainian territory. But aggression is a different kind of crime: it is about the decision to go to war in the first place rather than unlawful killings or other crimes committed during conflict. Because of a U.S.-backed loophole in the Rome Statute, the treaty that established the ICC, the court cannot bring aggression prosecutions against nationals of Russia, China, the United States, and all other countries that are not parties to the treaty.

Proponents have pressed to create a new judicial body to fill this gap, although most proposals only apply to the war in Ukraine. Former British Prime Minister Gordon Brown has argued that such a court is needed to fortify the norm against conquest, deter future aggressors, and afford a measure of justice for the war’s victims. “The crime of aggression is Putin’s original and foundational crime, the one that has been the starting point for all the other atrocities,” Brown wrote in February. Although supporters of this idea disagree about the form the new body should take, they agree that Russia’s aggression must not go unpunished in a court of law. Making the case for urgent and dramatic action to hold Russian actors responsible for aggression, international lawyers and advocates have described this as a new “Nuremberg moment.” In a May 4 speech in The Hague, Ukrainian President Volodymyr Zelensky himself invoked Nuremberg when he called for the establishment of a new aggression tribunal.

References such as this to the Nuremberg military tribunals, which took place after World War II to hold Nazi officials accountable for both aggression and atrocity crimes, are highly resonant but also misleading. The Nuremberg trials, as well as their counterparts in the Far East, came at the end of a globe-spanning total war that finished with the Axis powers’ defeat, surrender, and occupation, as well as the capture of their leaders. The Allies used these trials to demonstrate their commitment to the rule of law and to expose the defendants’ depravity. Because the Allies were able to impose terms on Germany or Japan, they were also in a position to try their leaders and enforce the sentences the war court passed down.

The full article can be read on Foreign Affairs' website.


Senior Adviser, U.S.
Chief of Policy

Subscribe to Crisis Group’s Email Updates

Receive the best source of conflict analysis right in your inbox.