Russia’s aggression against Ukraine has been ongoing for 10 years. It started with the occupation of Crimea and parts of the Donbas in 2014 and culminated in the full-scale invasion in 2022. Various domestic and international justice initiatives to ensure accountability for war crimes and other conflict-related violations have been unfolding since 2014. However, 2022 marked the start of a new important debate. How can Russia be held accountable for the underlying crime of aggression? In this RevDem Rule of Law podcast, Oliver Garner discusses the proposal for a special tribunal to address Russia’s crime of aggression in Ukraine with Kateryna Busol.
Oliver Garner
I first personally became aware of the proposal for a Special Tribunal for the punishment of the crimes of aggression against Ukraine by Russia after an event and a press release in March 2022 that was convened and released by former UK Prime Minister Gordon Brown. Could you provide a summary for our listeners and readers of the current state of play of the idea, more than two years on?
Kateryna Busol
I think I will start responding to your question by briefly assessing why we need a special initiative to prosecute aggression. This is stipulated by the special nature of this crime, as well as the limitations in the existing international legal framework for punishing it.
The judgment of the main Nuremberg trial has quite poignantly explained that aggression is the supreme international crime that essentially accumulates within itself the evil of the whole, meaning that it opens the gates to ensuing war crimes, crimes against humanity, genocide, and other serious violations of human rights.
So, while we, on the one hand, do not have the hierarchy of evil and the hierarchy of international crimes, we also understand that the war of aggression is the enabling first act, the trigger to all ensuing violations. I think this really explains why it is the conduct that must be prosecuted in terms of both state and individual criminal responsibility. The International Criminal Court, the only permanent institution that has jurisdiction over atrocity crimes, war crimes, crimes against humanity, genocide, and the crime of aggression, is limited in what types of aggression it can prosecute. Both an aggressor state and the victim of aggression have to be parties to the Rome Statute of the International Criminal Court, and they also have to be parties to the special amendments of these statutes, specifically with respect to the crime of aggression. Russia is not a party to the Rome statute for this purpose, and Ukraine has ratified it only recently. While the court has jurisdiction to investigate – and it is doing so with six arrest warrants currently issued for top state officials and military personnel in Russia concerning war crimes and crimes against humanity – it is still limited in addressing Russia’s aggression.
I believe 2022 marked a shift in both legal and geopolitical thinking, as it became clear that we had been neglectful of atrocity crimes and the red flags from Russia’s actions in Crimea and Donbas.
This realization highlights the need to address the initial triggering crime of aggression. That is why there is an initiative to establish a special court to prosecute Russia’s top officials. However, it is crucial that Ukrainian state officials, civil society, the survivor community, and Ukrainian lawyers, in collaboration with the international legal community—including, for example, the special advisor on the crime of aggression to the prosecutor of the International Criminal Court—support this effort. However, what is also needed for the international rules-based order is the reform of the International Criminal Court so that we do not have this gap for the crime of aggression, and Ukraine essentially becomes a catalyst for equalizing access to justice for any future aggressions. I think this track to reform the wider framework makes sense and would also support the initiative for a Special Tribunal.
Oliver Garner
That is what we would call a “belt and braces” approach in UK English. You mentioned how the crime of aggression is a gateway—a trigger. It can be regarded as the original sin that then leads to other international crimes committed during warfare. For readers who may not be familiar with international law, what international crimes or other breaches of international law has Russia committed in its conduct in Ukraine since 2014?
Kateryna Busol
In my response, I will refer to three principal sources: first, the preliminary examination reports of the Office of the Prosecutor of the International Criminal Court; secondly, the reports of the UN Human Rights Monitoring Mission, which has been observing the situation in conflict-affected territories of Ukraine since the start of the war; and finally, the findings of human rights NGOs in Ukraine. So, all three sets of stakeholders that I have mentioned have found allegations of war crimes since 2014, both in Crimea and in Donbas. The majority of these allegations concern torture, inhuman treatment, unlawful detention, killings, enforced disappearances, rapes, and other forms of sexual violence. The crime against humanity of persecution on political grounds has been alleged with respect to Crimea, particularly concerning the indigenous Crimean Tatars and ethnic Ukrainians on the peninsula who opposed the establishment of the occupation regime and were persecuted for doing so.
I think it is important to note—and this emphasizes how we sometimes choose not to see—that the majority of the crimes we now observe on a larger scale since 2022 were actually present since 2014. They have simply escalated in gravity and geographically, as the whole of Ukraine is currently a crime scene.
Regarding the newer crimes or allegations that we are discussing since the full-scale invasion, these include the attacks on Ukraine’s energy infrastructure, which endanger and impede the survival of civilians across the country affecting healthcare and education. Additionally, there are allegations of genocide and incitement to genocide. I think that it is crucial for international lawyers—especially foreign international lawyers who naturally do not speak Ukrainian or Russian—to look attentively at both the history of Russia’s oppression as an empire, and then in its role as the leading nation in the Soviet Union, as well as the statements made by President Putin and key figures in state-owned media, to see how many of them may amount to direct and public incitement to genocide.
Oliver Garner
It seems to me that international law is almost struggling to try and impose an order of responsibility upon the anarchy of violence during war. I think that it is a very important endeavor to ensure that those actions are assigned to specific crimes. So I would applaud those who are doing that work in Ukraine at the moment. You mentioned in your first answer the International Criminal Court and the fact that states must be signatories to the Rome Statute. Before the establishment of the International Criminal Court in 1998, there was the creation of the International Criminal Tribunal for the former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda in 1994. Now I think you answered the question I was going to ask about why the International Criminal Court is not the forum in which Russian crimes could be prosecuted, due to the country not ratifying the Rome Statute. So, my other question would be how could accusations of selective justice, such as we saw arise in relation to the previous special tribunals, be dispelled if a special tribunal for Russian crimes in Ukraine does go ahead?
Kateryna Busol
Again, I want to emphasize that the International Criminal Court may currently not prosecute the crime of aggression in the case of Russia and Ukraine, but it can and does prosecute war crimes, crimes against humanity, and possibly genocide. The first step to reducing discussions of selectivity is to reform the ICC, yet we see resistance to this across the globe.
I believe that the creation of a special tribunal should not exemplify selective justice; rather, it should highlight the gaps in the international legal framework. This should be accompanied by initiatives to reform the ICC’s Rome Statute concerning the crime of aggression. We can observe discussions about this taking place. For example, Liechtenstein is engaged in these discussions, and more countries from the Global South, as well as nations from Central and Eastern Europe, are supporting efforts to equalize the aggression regime. This indicates a desire for action, not only with respect to Russia but for the international community as a whole.
I believe that Ukraine must also take a leading role in this process, as this would be politically significant—it would demonstrate that Ukraine is fighting a larger battle for international justice, rather than demanding justice solely for itself.
Additionally, I think this approach would foster greater understanding and build alliances with nations in the Global South, with whom, unfortunately, Ukraine has not interacted as much as Russia has done, primarily due to a lack of resources. It is commendable that the former foreign minister, Dmytro Kuleba, has prioritized traveling across the African continent. Moreover, Prime Minister (of India) Modi recently visited Ukraine, and there have been more trips to various countries in Latin America, along with the opening of Ukrainian embassies there. This indicates a recognition that outreach should be global, and the equalization of the aggression jurisdiction under the Rome Statute could serve as a significant connecting factor. Another connecting factor could be asking Global South nations about their experiences with transitional justice, which is very topical for Ukraine as it concerns how to support survivors and establish truth-seeking mechanisms. Countries like Argentina, Chile, South Africa, and Rwanda have this experience. There are many connecting points to bridge the gaps and rectify the larger set of gaps in the international legal framework.
Oliver Garner
I find what you are saying fascinating, especially regarding one of the CEU Democracy Institute’s wider projects on development and democracy. A key aspect of that project is ensuring a two-way dialogue between developing and more developed countries. The idea of learning from previous traumatic experiences highlights the potential for an inclusive global dialogue. Additionally, I think that your comment about the Special Tribunal almost serving as an avant-garde for a specific instance aimed at eventual universalization is interesting.
On the topic of the geopolitical context behind Russia’s aggression, RevDem has recently published a review of the work of German academic Andreas Rödder, who discusses what he calls the failure of the post-Cold War order and the roots of Russia’s imperialism. At the start of the full-scale invasion in 2022, RevDem hosted two op-eds: one arguing that Russia’s aggression was a war about and against democracy, and the other opposing this proposition. In your opinion, does the crime of aggression arise specifically from authoritarian and autocratic governance, as seen in the structures and chains of command in Putin’s Russia? And, especially in light of current events in Palestine and Western interventions in the Middle East since 2001, do you believe that democracies can also commit the crime of aggression?
Kateryna Busol
I think that every situation is very context-specific, and it is challenging to generalize. Human rights violations occur across the globe, and I believe that we should examine each particular context separately. What I can say specifically about Russia is that there are numerous aspects of its imperial legacy that remain unaddressed. The very imperial nature of Russia, both before and after the formation of the Soviet Union, has not been fully acknowledged. When we read the judgments from the main Nuremberg trial, there are numerous references to the so-called Southern Russia or Southern Russians, but essentially it is what Timothy Snyder refers to as its “bloodlands,” which is Ukraine. In this particular context—and I am sure in many others as well—there has been a significant blurring of narratives and a monopolization of discourse. For instance, Russia criminalizes what it deems distorted interpretations of World War II and the Nuremberg trial under its domestic law. So, this particular aggression is deeply rooted in imperial history and an unaddressed imperial legacy. This is precisely what human rights lawyers and survivors in Ukraine are striving to change.
Oliver Garner
You have already mentioned in your responses how there is a feeling that the special tribunal could serve as a pathway to the universalization of the crime of aggression, or at least create greater consensus and order. My question for you is whether you believe that the fallout from Russia’s war of aggression in Ukraine and the legal response could prove to be a watershed moment, similar to the Nuremberg trials after World War II? Or, on the other hand, do you think that nothing will change in the structure of international relations and law, particularly in the context of calls—such as those made by Donald Trump during the U.S. presidential debate—for a negotiated resolution to the war?
Kateryna Busol
I like the quote from many Ukrainian human rights lawyers, including Oleksandra Matviichuk, the head of the Nobel Prize-winning Center for Civil Liberties: “Pessimism is not a luxury that we can afford.”
I think we should remain proactive and optimistic. I do believe that Ukraine has been affected by selectivity.
As I mentioned, during the initial eight years of the armed conflict, there was no International Criminal Court investigation. If anything, the current prosecutor was actually closing the preliminary examination in the country. The international support—not just for investigating and prosecuting the atrocity crimes perpetrated in Crimea and Donbas, but also for providing funding to human rights NGOs to document this work, train domestic investigators and prosecutors on addressing these crimes, and submit evidence to the International Criminal Court—was lacking.
I think it is important to highlight how Ukraine has also been affected by selectivity and how, not just within the international legal framework but also as global citizens, we often require atrocities to be of a certain level to prompt action or even just attention. Unfortunately, it took the full-scale invasion of Ukraine by Russia to bring these atrocities to light and escalate the situation for the international community to respond. We should also recognize the exceptional support that has been extended to Ukrainian refugees, particularly in terms of humanitarian assistance and training. However, this support should serve as a catalyst for broader change. We understand that reform of the Rome Statute does not occur quickly. I would like to remind our listeners and readers that, until recently, the crime of starvation was not included in the Rome Statute for non-international armed conflicts, which sounds obscene. But amendments have since been made, and this crime is now equally prohibited for both international and non-international armed conflicts. While the reform regarding aggression in the Rome Statute may take longer, I am sure that it will happen. Again, Ukraine should not only be a catalyst; it should assume agency in driving this change.
Ultimately, justice is not solely about the Hague; it is also about domestic investigations and prosecutions. I think that Ukraine also exemplifies its willingness to document, investigate, and prosecute domestically.
It is also showing its readiness to catalyze these prosecutions in other countries based on the principle of universal jurisdiction. We are witnessing a revival of universal jurisdiction, not only in relation to Ukraine but also in cases involving Syria, crimes committed by ISIS against the Yazidi community, and the ongoing situation between Israel and Palestine. This demonstrates that action is not only required from conflict-affected countries and societies but also from countries and societies globally.
Finally, as I mentioned earlier, justice is not just about the courtrooms. It is also about supporting survivors, ensuring reparations, and providing medical and psychological support to ensure proper healthcare. So, again, if Ukraine manages to serve as a catalyst, building on the rich transitional justice experiences of countries in Latin America and Africa, and demonstrates that actions should not rely solely on criminal prosecutions but also on empowering and supporting those directly affected by atrocity crimes, I believe this will represent a gradual but significant change that is already underway.
This transcript has been edited for clarity and length in collaboration with Konstantin Kipp.