Int'l Legal Scholar Seeks Special Tribunal To Try Putin

The international rule of law – the simple idea that relations between states should be governed by enforceable constraints – has come under strain in recent years.

Photo Insert: Russian President Vladimir Putin and his authoritarian peers are hardly the only ones who have been systematically undermining the international rule of law.

Russia’s invasion of Ukraine, a clear violation of both the United Nations Charter and customary international law, is perhaps the clearest example of just how precarious the situation has become, international legal scholar Murray Hunt of the University of Oxford wrote for Project Syndicate.

But Russian President Vladimir Putin and his authoritarian peers are hardly the only ones who have been systematically undermining the international rule of law.

The resurgence of populist nationalism around the world – espoused most prominently by former US President Donald Trump and his latter-day “America First” movement – also has steadily eroded the rules-based international order that emerged after World War II.

But even before Trump, many countries were asserting the primacy of their laws and policies over international rules and multilateral cooperation.

There is a growing chorus calling for the gap in the international rule-of-law machinery to be filled with a special tribunal to punish the crime of aggression against Ukraine. This body would complement, rather than compete with, the ICC, because it would have authority to act only where the ICC lacks prosecutorial power.

One such proposal, which has Ukraine’s support, encourages states to form a coalition of the willing with Ukraine to create a special tribunal. Another proposal envisions a tribunal being established under the UN’s auspices, on the recommendation of the General Assembly.

Notably, The Elders – a private organization of prominent former government and international leaders – has endorsed calls for a criminal tribunal to be established, though they have not specified how it should come into being.

Any of these proposals would fill the current institutional gap by enabling the victim state to ensure that aggression on its territory does not go unpunished. Russia’s aggression has thus created the conditions for reversing the disturbing trend of recent years.

Some legal scholars argue that a special tribunal is a bad idea because it sends the message that international criminal justice is ultimately selective. The critique says rule of law would be subverted, rather than strengthened, by the hypocrisy and double standards involved in singling out Russian aggression when other states’ equally grave acts of aggression have gone unpunished.

This is a powerful critique that proponents of a special tribunal cannot simply dismiss. Nationalist attacks on international norms, institutions, and court rulings have found ready audiences among some electorates partly because there is a growing perception that the international rule of law is a Western imperial construct. Powerful states invoke international law when it suits their interests and conveniently overlook it when it does not.

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