A Special Tribunal Will Prosecute Putin and Senior Russian Leaders for “The Mother of All Crimes”
June 6, 2025
Photo by Brad Ritson
Having failed to stop the horrific violations of international law by Israel in Gaza and the West Bank, international law will try a new approach to stop the scourges of war. A just approved special tribunal will charge Russian leaders responsible for the invasion of Ukraine with the crime of aggression. Whereas defendants have been tried for war crimes, crimes against humanity and genocide, this will be the first time a tribunal will prosecute individuals for the crime of aggression, “the mother of all crimes.”
The Council of Europe (CoE), an international organization that seeks to protect human rights and democracy, on May 14 approved the creation of a special tribunal to prosecute Russia’s top leaders for the crime of aggression against Ukraine. A special tribunal was needed because Russia is not party to the International Criminal Court’s (ICC’s) Statute to deal with aggression.
There have been other special tribunals, such as for the former Yugoslavia, Rwanda, and Cambodia, but the crime of aggression has never been prosecuted before. Several Nazi leaders were convicted of “crimes against peace” during the Nuremburg and Tokyo trials after World War II, but not for aggression.
The idea of prosecuting Russian leaders for aggression came from the eminent, highly creative international jurist Philippe Sands. Almost on a whim, he proposed the idea of creating a special tribunal for Russian aggression against Ukraine in the Financial Times on February 28, 2022, just four days after the Russian invasion. To his surprise, the article instantly went viral. Among the early supporters was Gordon Brown, the former British Prime Minister.
What makes the crime of aggression so unique is that “The crime of aggression is sometimes referred to as the ‘mother of all other crimes’ because it precedes all of the other crimes, war crimes, crimes against humanity, even genocide,” Iva Vukusic, an international law expert at the University of Utrecht, told the Associated Press.
While international law separates jus ad bellum – conditions under which states may go to war – and jus in bello – rules regulating conduct authorized during fighting – aggression is on another, higher level. “Aggression is a crime from which other violations of international law flow, including genocide, war crimes, and crimes against humanity,” legal experts wrote in OpinioJuris. “These atrocity crimes relate to the way war is conducted, while the crime of aggression addresses the illegality of war itself.”
What is the definition of the crime of aggression? The U.N. General Assembly adopted a non-legally binding resolution by consensus containing a definition of the crime of aggression in 1974. Most recently, a definition was included in 2020 to the Statute of the ICC. It says:
1.) For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2.) For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.
While Sands has said that convicting Russian leaders of aggression will be a “slam dunk,” it is obvious that holding Putin and others physically accountable will be more difficult. Legally, there is little argument about Putin and Russia’s crimes of aggression. The February 2022 Russian invasion was certainly “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
But today there is a widening gap between the legal and political. In that sense, to say that public international law is in a political crisis is a gross understatement. The International Court of Justice (ICJ) ruled that Israel is committing plausible acts of genocide and later ruled that Israel must take steps to prevent those actions. Tell that to the starving in Gaza and those dying from Israeli soldiers firing on civilians near aid sites.
The ICC has issued warrants for Israeli Prime Minister Benjamin Netanyahu for being “Allegedly responsible for the war crimes of starvation as a method of warfare and of intentionally directing an attack against the civilian population; and the crimes against humanity of murder, persecution, and other inhumane acts…” Tell that to the 17,000 children reported to have been killed in the last 20 months and the 34,000 children wounded while Netanyahu remains free and continues to order the same atrocities.
The international legal system’s highest courts dealing with peace and security, the ICJ and the ICC, have failed in Gaza and the West Bank. What happens if the special tribunal fails to hold Putin and other Russian leaders accountable for what they have done in Ukraine as well? What if Putin and other leaders are found guilty, but like the Israeli prime minister they continue to function as before as if nothing had changed?
There will probably be no physical accountability for Putin and other Russian leaders. But what Sands and the Council of Europe have done is to put the crime of aggression on the international legal radar screen. And that is significant. For if the “mother of all crimes” becomes part of customary international law, the very notion of going to war by one state against another will be called into question.
The separation between jus ad bellum and jus in bello accepts exceptions for going to war, such as self-defense. The crime of aggression goes far beyond that. As Sands told Philippe Mottaz of the Geneva Observer in May 2023; “It’s the gap in the international law architecture that I wanted to address…” As Sands has also said, “There can be no impunity for the crime of aggression.”
So whether or not Putin and Company are brought to trial and found guilty may be less important than a global recognition that a state’s aggression against another state is in and of itself a crime. That a recognized multilateral organization with the approval of over 40 states is convening a special tribunal to hold a country and its leaders accountable for aggression is an important step in limiting war.
Too idealistic? Too far-fetched? Most probably. But read Sands’ brilliant East-West Street to follow how the Polish lawyer Raphael Lemkin coined the term genocide and the subsequent development and ratification of the Genocide Convention. While Sands “floated” the idea of the crime of aggression in his original FT piece, a year later, with major countries’ support, a special tribunal is being established. Sands’ “floated” idea is starting to have traction.
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