The EU and US want to bring Russian President Vladimir Putin to justice accusing him of the international crime of aggression in Ukraine but setting up a special tribunal could potentially leave the West vulnerable to similar cases in the future.
The West argues that Putin holds the ultimate responsibility for the execution of a large-scale and serious act of aggression, using state military force against another country.
Politically, the crime of aggression is considered one of the most serious international crimes, Vaios Koutroulis, Professor of Public International Law at Universite Libre de Bruxelles, told Euronews.
«There is no formal text saying that aggression is more serious than genocide or war crimes. The sense of the political interpretation is that because a crime of aggression was committed, initiating a war, all the other crimes may follow during the military operation. From the perspective of public international law there is no hierarchy between crimes,» the academic said.
However, pushing forward with the creation of a special tribunal to prosecute Putin and his political and military elites could prompt Russia, or other countries, to mount similar cases against Western governments.
«States have to be consistent. If you believe that there is no immunity for state officials before such an international court, then you must accept that if Russia creates a special international court — through a treaty with allies or states friendly or predisposed to Russia -, Western officials will not have immunity before that court either. So, are states willing to go down that path?,» Vaios Koutroulis said.
Russia has become ‘an international pariah’
Russia and some of its allies could potentially classify future missions of NATO — or, particularly, missions led by the US -, as acts of aggression, namely if they would target countries within what Russia deems to be its sphere of influence.
In the last three decades, NATO carried out several missions, namely in Bosnia and Herzegovina, the Gulf, Libya and Iraq.
For now, the US does not appear concerned about a possible legal backlash, arguing that Russia has damaged its reputation in the international community, with millions all over the world suffering the economic effects created by the invasion.
«As we know, Russia has become an international pariah. Given the fact that it has breached international peace and security in such a terrible way, leading to a rise in food prices, and food insecurity around the world, an emerging energy crisis, all of the destabilisation that this war has caused,» Beth Van Schaack, the US Ambassador for Global Criminal Justice, told Euronews in an interview.
«So the ability of Russia to stage any sort of a credible process against Europeans or other defendants is really questionable. The world would not stand for it, it would not be a credible or legitimate exercise,» she added.
No statute of limitation for war crimes
The International Criminal Court (ICC), headquartered in the Dutch city of The Hague, is already investigating, in Ukraine, crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
Russia does not recognise the authority of the ICC, created through an international treaty called the Rome Statute, and which entered into force in 2002.
The US is also not one of the 123 member states that ratified the treaty, but considers the role of ICC very important in this investigation and is assisting it through diplomatic tools and legal expertise.
«In the short term, investigations can be open, evidence can be gathered, witness testimonies can be preserved, arrest warrants can be issued,» Beth Van Schaack said.
In fact, the US administration formally concluded that Russia has committed «crimes against humanity», after a legal analysis led by its State Department, Vice President Kamala Harris announced over the weekend while at the Munich Security Conference.
The aim for Washington is to further isolate Putin and boost support to ensure he, and his government, are held responsible through international courts.
Putin has been in power for a quarter of a century, either as prime minister or president. A referendum, in 2020, confirmed a Constitutional amendment that reset the presidential terms, allowing him to run twice more and remain in power until 2036.
But Putin’s immunity should not be demoralising, ambassador Beth Van Schaack said.
«While Putin remains in Russia he will enjoy impunity for all of his crimes. There is no international police force that can cross an international border and capture a suspect. That awaits some sort of political transformation within Russia».
«But as I always say, those of us in this field are playing a very long game and there is no statute of limitation for war crimes or crimes against Humanity,» she added.