In May, in Chisinau, the capital of Moldova, 36 states and the European Union signed an agreement to make the Special Tribunal for the Crime of Aggression Against Ukraine a reality — the culmination of years of work that began soon after Russia launched its full-scale invasion in 2022.
Since the trials at Nuremberg and Tokyo held after World War II, no court has adjudicated the decision to start a war. In the decades since, aggression has survived, recalibrated and repeated itself, despite a clear prohibition in the U.N. Charter, which legally binds all member states to uphold international peace. President Vladimir Putin of Russia, for one, seems to have concluded that there was a space in which he could act with impunity. This new tribunal begins to close the gap. It is begun as a response to one war, but the precedent it will set — that aggression carries direct consequences for the aggressor — will carry its own geopolitical weight.
The International Criminal Court, the world’s highest criminal court, has already issued arrest warrants for Mr. Putin and some of his top commanders for war crimes and crimes against humanity. More than 120 countries are members of the I.C.C., but the United States, China, India, Israel and Russia are not. It is highly unlikely that Russia would ever extradite Mr. Putin, or anyone else, to face charges.
We are aware of the criticisms of international law — that when people are dying, statements of guilt or arrest warrants that see nobody arrested can seem like empty gestures. That in a fast-moving world, it can seem that international justice moves at a glacial pace. That states simply refusing to ratify treaties can make it seem as if those who have agreed to be bound by them are simply shouting from the sidelines.
We disagree. It is essential that we continue to establish the rules and norms that we, as an international community, propose to operate by. Justice may proceed slowly, and cautiously, but it does proceed. It creates a record of what happened and prevents the aggressor from having the last word.
Critics might say that a special tribunal is too European, too selective, premature. They will say there is a double standard, citing the ghost of every Western foreign policy failure since 1945. Accountability has too often depended on who is in the dock rather than on the gravity of the crime committed. That is a reason to build more accountability, starting here.
Each time the international community builds a working accountability mechanism — however imperfect, however incremental — it narrows the space in which power operates without consequences. Mark Carney, the prime minister of Canada, said at Davos in January that the logic of “the strong can do what they can, and the weak must suffer what they must” was being presented as the inevitable reassertion of international relations, and correctly rejected that logic. “We should not allow the rise of hard power to blind us to the fact that the power of legitimacy, integrity and rules will remain strong — if we choose to wield it together,” he said in the same speech.
Impunity for Russian aggression against Georgia in 2008 made the Russian aggression against Crimea and the Donbas in Ukraine possible in 2014. Impunity for 2014 paved the way for 2022. If impunity is ever to end, the pushback must begin somewhere.
No cease-fire framework for the war in Ukraine currently on the table addresses accountability. The question of who ordered this war, and whether those persons will ever answer for it, is absent from negotiating rooms. Ukraine will not trade accountability for a cease-fire, and history explains why.
The Dayton agreement ended the Bosnian war. The Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, who had already been indicted on charges of war crimes, were excluded from peace negotiations.
The Dayton agreement ended the fighting, but justice for those most responsible was delayed. Slobodan Milosevic, then the president of the Federal Republic of Yugoslavia and a key participant in the negotiations, was not arrested until almost six years after the agreement. Mr. Karadzic was arrested more than 12 years later, and Mr. Mladic more than 15. That delay contributed to historical revisionism, and allowed ethnic nationalism to gain strength.
The creation of the Special Tribunal for the Crime of Aggression Against Ukraine required compromises that left none of the participants entirely satisfied. But it exists. Its existence should change the strategic calculation — not just for Mr. Putin, but for every leader in every capital who has watched Ukraine and filed away the lesson that conquest can be cost free.
More than 140 states voted at the United Nations to condemn Russia’s aggression in March 2022, but only thirty-six signed the agreement in May in Moldova. We do not ask that all countries be on the side of Ukraine. We ask them to be on the side of themselves. The international legal architecture that was designed to protect Ukraine from conquest is intended to protect every other state, too. The constraints this tribunal could impose on major-power discretion would not stop at Europe’s borders.
In his opening statement, Robert Jackson, the chief U.S. prosecutor at Nuremberg, told the court: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” Those who choose to either join or remain outside this tribunal are making their own record — one that will be read by future victims looking for precedent, future aggressors calculating risk and historians explaining to the next generation how the post-1945 international order endured, or didn’t.
Iryna Mudra is the deputy head of the office of the president of Ukraine. Mykola Yurlov is a senior Ukrainian diplomat. Taras Semenyuk is a communications adviser. Mark Ellis is the executive director of the International Bar Association.
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