‘Time and distraction are Vladimir Putin’s ultimate weapons’ — Former UN Chief Prosecutor David M. Crane on the Imperative of Adjudicating Russian Aggression Commentary
‘Time and distraction are Vladimir Putin’s ultimate weapons’ — Former UN Chief Prosecutor David M. Crane on the Imperative of Adjudicating Russian Aggression
Edited by: JURIST Staff

Time is of the essence when it comes to creating a court or tribunal dedicated to adjudicating Russian aggression against Ukraine. And while much consideration has already been given to the creation of a UN General Assembly-backed tribunal, the preferred option in my opinion, I would suggest the time has come to expand our consideration to include a multinational court, created outside of the UN system by member states. This option would embolden the international community to take meaningful action against Russian aggression in Ukraine, with fewer political obstacles and thus greater efficiency than the UNGA option would likely afford. Similar to the historical precedents set by the International Tribunal at Nuremberg and the International Tribunal at Tokyo after World War II, this type of international court would aim to address and prosecute those responsible for the crime of aggression against Ukraine unchallenged by head-of-state immunity.

The need for such a tribunal or court arises from the severity of Russia’s actions against Ukraine, which violate international law and the sovereignty of a nation-state. By setting up a specialized court outside the UN General Assembly, member states can collaborate with relative speed and efficiency to establish a legal framework focused specifically on addressing Russian aggression. Modeled after the above-mentioned historic tribunals, such a court would benefit from a flexible structure that would allow member states to contribute support, resources, and expertise based on their political capacities.

It must be noted that the preferred option for aggression accountability remains a UN General Assembly-backed Special Tribunal for Ukraine on the Crime of Aggression. A viable package has been put together that has an example of a UN General Assembly Resolution, a sample of a statute that creates the tribunal, as well as a practical seven-step instructional for implementing the statute with a resulting indictment of Vladimir Putin and his senior military and political leadership.[1] Bottomline: we have done this type of tribunal before with the UN Special Court for Sierra Leone as a historic example. It was a success and held a head of state accountable for international crimes. We can do it again with an international tribunal or court.

A Multinational Court for Ukraine would be tasked with identifying and prosecuting individuals or entities bearing the greatest responsibility for the aggression against Ukraine. Its mandate would involve meticulously examining the evidence, testimonies, and circumstances surrounding the conflict to ensure a fair and just trial process. By holding accountable those who committed or ordered acts of aggression, this court aims not only to deliver justice but also to deter future breaches of international law and prevent impunity. The charter of a multinational court for Ukraine might even mandate accountability for those countries that are aiding and abetting aggression against Ukraine, such as Iran, Belarus, and North Korea.

It must be noted that a UNGA-backed special tribunal or a multinational court would be complementary to the important work of the International Criminal Court (ICC). Working together — exchanging information, evidence, and a shared focus on accountability — would enhance the capabilities of both justice mechanisms and bolster each of their investigations. These two options related to aggression accountability would not compete or interfere with the work of the ICC.

One of the primary advantages of a multinational court is its expedited setup — essential given the urgency of the situation. With a streamlined process and the support of any number of member states, this court could swiftly initiate its proceedings, investigate, and ultimately prosecute those responsible for the aggression against Ukraine. Time sensitivity underscores the importance of promptly establishing a legal mechanism dedicated to addressing such acts of aggression. We live in a distracted and fractious world.

The political advantage of this court also allows member states to participate directly with the court in helping to draft its charter, providing funding, equipment, and personnel, or indirectly providing it with political cover and support. The number of supporting states from both the Global South and North would be flexible, with member states able to join even after the charter is signed. Member states could also join a management committee that would oversee the court’s operations. Ukraine would be an ex-officio member.

At both the international military tribunals (IMT) at Nuremberg and Tokyo, there was a core group that created the courts and numerous supporting states that provided personnel and political cover, even sending observers and delegations. These models worked and a multinational court for Ukraine would as well. The court’s establishment outside of the UN system — even if carried out by member states — would shed the political baggage that exists around the creation of any court or tribunal by the UN.

The need for the world’s democracies to confront Russian aggression against Ukraine stems from the fundamental principles that underpin democratic societies — values such as sovereignty, freedom, and the rule of law. Democracies are built on the premise of respecting the rights of sovereign nations and upholding international laws and norms.

By uniting to confront this aggression, democracies send a resounding message about their collective commitment to defend these principles. The aggression against Ukraine not only violates international law; it also challenges the very essence of democracy by undermining the autonomy and self-determination of a sovereign nation.

Confronting this aggression isn’t merely about addressing a singular conflict; it’s about safeguarding the global order based on democratic values. Failure to respond robustly could set a dangerous precedent, emboldening other actors to disregard international norms and encroach upon the sovereignty of other nations. We can see this already in the Middle East as Iran flexes its autocratic muscle and causes unrest and conflict by (most likely) ordering and supporting the unprovoked attack by Hamas on Israel.

Moreover, democracies have a vested interest in maintaining stability and security on a global scale. Allowing unchecked aggression to persist threatens the stability of regions far beyond the immediate conflict zone. A strong and unified response by democratic nations isn’t just a moral imperative, it’s also a strategic necessity to prevent further destabilization and conflict by Iran, North Korea, and China.

The establishment by these democracies of what could perhaps be called the Multinational Court for Ukraine on the Crime of Aggression would signify their dedication to upholding the rule of law and ensuring accountability for those who violate it. It showcases the collective resolve of democratic nations to stand against aggression, demonstrating that these values aren’t mere rhetoric but guiding principles that govern their actions on the world stage. Ultimately, confronting Russian aggression against Ukraine is a testament to the unity and strength of democracies, showcasing their commitment to defending sovereignty, upholding international law, and preserving the stability and security of the global community under the United Nations paradigm put together in 1945.

The core challenge lies in overcoming head-of-state immunity, a legal shield protecting leaders like Putin from international prosecution. Such immunity shields them from legal action in foreign or international courts while holding office. This creates a significant barrier to justice and accountability, rendering certain proposed solutions and options ineffective.

Certainly, exploring alternatives such as a hybrid domestic model or a regional court to address Russian aggression against Ukraine may seem appealing at first glance. However, these options, upon closer examination, reveal inherent limitations and obstacles that render them inadequate in addressing the core issue of holding perpetrators accountable — especially when dealing with a figure like President Vladimir Putin, who is shielded head-of-state immunity.

A hybrid domestic model, while attempting to merge domestic and international legal frameworks, often faces jurisdictional challenges and lacks the necessary impartiality and independence to handle cases involving high-ranking officials from foreign nations. The complexities of international law and the political nature of such cases can lead to prolonged legal battles, delays, and ultimately, an inability to effectively prosecute individuals shielded by sovereign immunities.

Similarly, a regional court, while potentially more focused on the specific conflict, may lack the international consensus and authority needed to navigate complex geopolitical situations. In cases involving head-of-state immunity, regional courts might face significant hurdles in asserting jurisdiction and enforcing their rulings, especially against President Vladimir Putin. The absence of the global south would also be a political problem and question this option’s legitimacy.

Establishing a Multinational Court for Ukraine on the Crime of Aggression by UN member states outside the General Assembly stands out as a more viable option due to its potential to address head-of-state immunity through the concerted effort and collaboration of multiple nations. This approach could transcend political smokescreens and focus on a specialized court with the necessary mandate to pursue justice without being hindered by diplomatic or jurisdictional constraints.

The establishment of a multinational court represents a critical step towards upholding international law, justice, and accountability. Modeled after historical tribunals, this court’s flexible structure and swift initiation could provide a platform for addressing the Russian aggression against Ukraine while sending a powerful message about the global commitment to protect the sovereignty and integrity of nation-states.

While other options might offer a semblance of addressing accountability for Russian aggression, they are inherently limited in their ability to overcome the significant legal hurdle of head-of-state immunity. Thus, establishing a specialized multinational court, absent a UNGA back international tribunal, remains the most viable and effective path towards addressing Russian aggression against Ukraine and ensuring accountability for those responsible. Time is of the essence.

An easily distracted world is far too likely to walk away from Ukraine. We cannot let this happen. Time and distraction are Vladimir Putin’s ultimate weapons. He knows that democracies lose focus over timem just as they did in Syria. Putin is trying to wait us out and then pounce on Ukraine, and ultimately, far too likely on other member states of the United Nations. In his mind, Ukraine is likely only the beginning. We have a historic opportunity to act decisively in alignment with the rule of law; let’s not let this all slip through our fingers, lest we deal a tragic blow to the geopolitics of the 21st century.

**Founding Chief Prosecutor, UN Special Court for Sierra Leone; Founder, Global Accountability Network; Co-author of the Caesar Report; Distinguished Scholar in Residence, Syracuse University College of Law.

[1] This high level working group has been working together since the summer of 2022. The group consists of four practitioners: Irwin Cotler, former Minister of Justice and Attorney General of Canada; Hans Corell, former Under-Secretary General of the United Nations for Legal Affairs; David Crane, founding Chief Prosecutor of the UN Special Court for Sierra Leone; and David Scheffer, inaugural US Ambassador at Large for War Crimes Issues. This group consults with other practitioners and organizations as well and is supported by a dedicated team of law students.


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