A tribunal for Russia’s leadership?
In any given year, there are nearly four dozen active armed conflicts around the globe. These conflicts are violent, durable, far-reaching, and oftentimes characterized by widespread atrocities or even acts of genocide. Throughout history, acts of mass violence have left a devastating mark on humanity, with the 20th century standing out as especially brutal. When one thinks of the most horrific atrocities, the crimes committed by Nazi Germany immediately come to mind. Yet, this list must also include the brutal acts committed by the Japanese regime during the Second World War, as well as the genocides in Rwanda, Bosnia and Iraq. It is worth remembering that this all took place in just the 20th century. The survivors of all these horrible crimes have desperately longed for justice. While many ad hoc international tribunals have been established to deliver justice, other victims, such as those of the Kurdish genocide in Iraq, have remained without any formal pathways for accountability.
Against the global backdrop of these recent genocides, Europe stands out with a particularly troubling pattern of such atrocities — from the Holocaust under Nazi Germany to the Bosnian genocide, and now, disturbingly, Ukraine.
Atrocities against Bosnian Muslims, the Srebrenica massacre and international responses
July 2024 marked the 29th anniversary of the Srebrenica genocide, when Bosnian Serbs planned and deliberately killed more than 8,000 Bosnian Muslim men in July 1995. The Srebrenica massacre is often regarded as the largest atrocity of its kind in Europe since the Second World War.
These horrific events were prosecuted at the international level. An ad hoc international tribunal – the International Criminal Tribunal for the former Yugoslavia (ICTY) – was created in the Hague in May 1993 by United Nations Security Council Resolution 827. This was done to prosecute the main high-level perpetrators of numerous atrocities on the territory of the former Yugoslavia from 1991 onwards. The Tribunal established beyond a reasonable doubt that the killing of Bosnian Muslims in Srebrenica was a genocide. The ICTY was the first international criminal tribunal to introduce convictions for genocide in Europe. The Tribunal also issued indictments against 19 individuals for crimes committed in Srebrenica. All but one of this group are high-level perpetrators who planned and ordered the killing operation. In 1995 the ICTY convicted Radovan Karadžić, the leader of the Bosnian Serbs during the Bosnian War, for genocide, crimes against humanity, and war crimes primarily as part of a joint criminal enterprise. He was also convicted of holding various leadership roles. Ratko Mladić, the army commander, was also convicted in 1995 for similar charges, including genocide and crimes against humanity. This was done based on his role as a military leader and his involvement in a joint criminal enterprise, as well as other forms of criminal liability, including command responsibility. The Yugoslav leader Slobodan Milošević was also charged and transported to The Hague to face accountability for crimes committed under his leadership not only in Bosnia but also in Croatia and Kosovo. However, he passed away before a verdict was rendered in his trial.
In 2007, the International Court of Justice (ICJ) affirmed that the atrocities committed in Srebrenica constituted acts of genocide and that Serbia had failed to fulfil its obligations to prevent the genocide. This ruling complemented the individual criminal accountability of specific perpetrators by establishing state responsibility, thereby reinforcing obligations under international law for the broader international community.
Bucha, Irpin, Borodianka, Hostomel, Moshchun, Izium, Mariupol, the Olenivka prison massacre and Ohmatdyt – the “Ukrainian collective Srebrenica” is growing every day…
With the ongoing war in Ukraine, there is mounting evidence and investigations into potential war crimes, crimes against humanity, and acts that may meet the legal criteria for genocide. However, as of now, there has not been a confirmed and internationally recognized genocide of the same magnitude as the Srebrenica massacre. While it is difficult to prove the true scale of the damage done during the heat of the ongoing war, Ukraine might sadly overtake the massacre when it comes to lives lost in the Russian atrocities. Since the beginning of Russia’s full-scale invasion of Ukraine up to November 2024, over 146,000 cases of war crimes have been registered by Ukrainian law enforcement agencies. According to NGO documenters, more than 8,000 people likely died from war-related causes in Mariupol alone between March 2022 and February 2023. Ukrainian documenters, international journalists and independent international organizations have found evidence of thousands of different cases of atrocities. This includes, for example, the killing and torture of civilians in Bucha, Irpin, Borodianka, Hostomel, Moshchun and Izium. This list of numerous Russian atrocities is unfortunately not exhaustive and keeps growing every day…
From February 24th 2022 to the present day, the Russian army has been committing war crimes in the occupied Ukrainian territories that are similar to those committed by the Serbs in the occupied Bosnian territories and in particular in Srebrenica. The crimes in Srebrenica and those committed by Russian armed forces and mercenaries in Ukraine share the same context – those crimes are ethnically motivated and aimed at the destruction of an ethnic community or an entire nation. In Srebrenica, this targeted the Bosnian Muslims, while in Bucha and other locations, the target was the Ukrainian population.
International responses to atrocities in former Yugoslavia as an example for justice in the Russian aggression against Ukraine
Today, more than thirty years since the Yugoslav Wars, Europe is once again being tested on its commitment to its core values. The Russian aggression has created unprecedented challenges, bringing numerous horrendous atrocities and countless human rights violations to the European continent. Moscow continues to commit war crimes and crimes against humanity on the territory of Ukraine on a daily basis. Russia’s highest military and political leadership is also ordering the destruction of Ukraine’s civilian infrastructure; deporting Ukrainian children; torturing and killing Ukrainian prisoners of war; and creating unbearable conditions of life for people in the occupied territories. Putin is repeating the crimes committed by Milošević and the Serbian leadership more than thirty years ago. Additionally, the Russian state’s status as a nuclear power only complicates the situation. The reaction of the international community should be comparable to that concerning the crimes in former Yugoslavia, if not stronger. Ensuring that the perpetrators of the gravest international crimes are brought to justice will show that the power of international law admits no exceptions, even when dealing with powerful states wielding nuclear weapons.
In February 2022, in response to Russia’s brutal aggression against Ukraine, a number of key Ukrainian human rights NGOs, such as the Kharkiv Human Rights Group, the Ukrainian Helsinki Human Rights Union and the Center for Civil Liberties, launched the Global Initiative “Tribunal for Putin” (T4P). This advocates for a strong international response to Russia’s crimes in Ukraine in order to avoid impunity for high-level perpetrators.
The International Criminal Court (ICC), as the primary international body for pursuing the accountability of high-level perpetrators of international crimes, has swiftly taken action to address the situation. Following the full-scale Russian invasion on February 24th 2022, the ICC Prosecutor Karim Khan formally launched an investigation into potential war crimes, crimes against humanity, and genocide in Ukraine. This was supported by 39 ICC State Parties. Since then, the ICC has been actively involved in gathering evidence on the ground, with Karim Khan making several visits to Ukraine to assess the situation firsthand. In March 2023, the ICC issued arrest warrants for Russian President Vladimir Putin and the Russian Presidential Commissioner for Children’s Rights Maria Lvova-Belova, accusing them of illegally deporting Ukrainian children to Russia during the war between the two countries. The ICC prosecutor notes that the charges against Putin and Lvova-Belova are based on sufficient evidence and that they are responsible for “the illegal deportation and transfer of Ukrainian children from the occupied territories of Ukraine to the Russian Federation”. This contradicts specific articles of the Rome Statute. The ICC noted that Russian forces had taken “hundreds of Ukrainian children from boarding schools and orphanages”. Karim Khan argues that these actions, aimed at permanently removing children from their homeland, constitute a violation of the Geneva Convention and qualify as war crimes. While the ICC prosecutor does not suggest that there is genocidal intent behind the illegal deportation of Ukrainian children, as any charges of genocide would require demonstrating specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, Ukraine has been gathering evidence to support such claims. The determination of whether genocide is being committed remains subject to the ICC’s further investigations and prosecutions.
This year, the ICC issued other arrest warrants against high-level Russian military officials. These are Lieutenant General Sergei Kobylash, the commander of long-range aviation in the Russian Aerospace Forces; Admiral Viktor Sokolov, the commander of the Black Sea Fleet; the former Russian Defence Minister Sergei Shoigu; and the Chief of the General Staff of the Russian Armed Forces Valery Gerasimov. These individuals were highlighted for their alleged role in attacking energy and civilian infrastructure in Ukraine. The charges underscore the ICC’s position that the deliberate targeting of civilian infrastructure, resulting in significant harm to the civilian population, can constitute both war crimes and crimes against humanity under international law. Thus, the issued arrest warrants are part of the Court’s efforts to bring to justice those from the Russian leadership most responsible for serious violations of international law.
Yet, there is a significant gap in the current justice system when it comes to holding perpetrators accountable for the crime of aggression. The ICC cannot prosecute acts of aggression committed by or within countries that are not members of the Rome Statute — like Russia. While the ICC can address war crimes, crimes against humanity, and genocide in Ukraine, it has no jurisdiction over Russia’s aggression. This limitation has fuelled calls to create a Special Tribunal specifically focused on prosecuting this crime in Ukraine to ensure a comprehensive response to all the ongoing international crimes.
On November 21st 2022, the NATO Parliamentary Assembly adopted a resolution urging members and partners of the North Atlantic Alliance to establish a special tribunal to prosecute the Russian leaders accountable for the crime of aggression. On November 23rd 2022, the European Parliament adopted a resolution calling on the EU and its member states to support the establishment of a special tribunal for the crime of aggression by Russia against Ukraine. On January 19th 2023, it adopted yet another resolution on the establishment of such a tribunal.
Yet, establishing a tribunal for the Russian aggression requires careful design to ensure adherence to the standards of international law, as well as the tribunal’s legitimacy in the global community. Practical issues like the tribunal’s format, jurisdiction, funding, logistical coordination, and applicable legal frameworks will need to be addressed. There are also the issues of overcoming leaders’ immunities and managing proceedings and trials in absentia. Despite the challenges, the creation of such a tribunal would represent a critical step toward comprehensive accountability for Russian aggression, upholding international law in order to complement existing legal mechanisms, and sending a strong message against impunity.
ICTY is, to some extent, the case that the international community should look up to when creating a tribunal for Russian leaders liable for aggression against Ukraine. The ICTY demonstrated how international criminal justice can be effectively applied to hold perpetrators accountable for war crimes, crimes against humanity, and genocide. Overall, it set a benchmark for future tribunals. However, it did not have jurisdiction over the crime of aggression at the time. This gap was later addressed when the crime of aggression was incorporated into the Rome Statute of the International Criminal Court (ICC) through the 2010 Kampala Amendments, which became effective in 2018. By building on the successes and limitations of the ICTY, a special tribunal for Russian aggression against Ukraine can leverage lessons learned, while filling jurisdictional gaps that earlier tribunals could not address.
Importantly, the ICTY was not a trial of defeated states as seen in the post-war prosecutions of German and Japanese regimes. Instead, it prosecuted individuals who faced only a domestic political defeat. A similar scenario could unfold with the Putin regime, making it essential for the international community to take proactive measures. Delaying the establishment of a special tribunal for Russian aggression in Ukraine effectively grants impunity, allowing Putin and other Russian officials to commit further crimes. This includes acts of a genocidal nature. While it is not always in our power to prevent new crimes, it is our sacred duty to bring those responsible to justice. By acting decisively, we, as the international community, can send a powerful message that impunity will not be tolerated in modern democracies and that the rule of law serves as a shield against tyranny, aggression and atrocities.
Kateryna Kyrychenko is a Legal Officer and Ukraine Program Manager at the pro bono law firm the Public International Law and Policy Group (PILPG). She is working on legal issues focused on accountability for Russian war crimes in Ukraine, and is currently pursuing a PhD in International Law (National University of “Kyiv-Mohyla Academy”).
Andrii Kutsyk holds a PhD in Philosophy of Media (Lesya Ukrainka Volyn National University) and a Master’s Degree in Eastern European Studies (University of Warsaw). He is currently a Research Fellow at the Institute of Political Science at the University of Gdańsk and a member of the Research Institute for European Policy. In 2024, he also received the Ivan Vyhovsky Prize (University of Rzeszów).
Dionizy Akulicz holds a Master’s Degree in Eastern European Studies (University of Warsaw).