The vast mobilization for justice has already eclipsed all previous efforts by orders of magnitude. Ukrainian prosecutors have opened sixty thousand war crime files. Under the tough British prosecutor Karim Khan, the International Criminal Court opened its biggest field office in Kyiv and got record-breaking funding from Western countries to help its investigation.

More than a dozen other countries have started criminal investigations and long-arm inquiries in their courts. Still more, including the United States, have dispatched forensic investigators and provided financial assistance to Ukrainian prosecutors. The UN has established an investigation commission. Everyone seems to be participating at this point.

Even if some have called it a “circus,” every mass atrocity should evoke this resounding legal response. In addition to Palestinians whose complaints to the ICC of Israeli war crimes have received the go-slow treatment since 2015, victims of the Bush administration’s torture program in Afghanistan, whom Khan has “deprioritized,” citing “limited resources,” can only hope they will now receive the same attention.

What will all these investigations into Ukraine reveal? Captured Russian soldiers are already being tried in Kyiv, but Ukraine and the ICC naturally have bigger aspirations. The fact that Putin has not intervened to stop these atrocities or to punish his officers who took part in them would make him criminally liable under the well-established principle of “command responsibility,” even without evidence that he ordered the bombing of civilian targets or torture and murder. However, no one will be able to handcuff Putin as long as he remains firmly entrenched in the Kremlin.

The main thing discussed is Ukraine’s repeated call for an international court to judge “aggression” by Russia and Belarus. This idea was first put forth by the foresighted international lawyer Philippe Sands days after the invasion and is now gaining traction thanks to support from the European Union and Germany and nods from France, the United Kingdom, and the United States. It is a vital concept. “To begin a war of aggression… is not just an international crime; it is the highest international crime, different from other war crimes only in that it embodies within itself the accumulated evil of the entire world,” the Nuremberg verdict that found Nazi officials guilty read. Additionally, US prosecutor Robert Jackson stated in his famous Nuremberg opening speech that “making statesmen answerable to the law is the ultimate step towards averting recurrent war.” And let me be clear that even while this rule is initially enforced against German aggressors, it must condemn aggression by any other nations, including those who are currently sitting in judgment, if it is to be helpful.

Despite Jackson’s warning, the large countries were apprehensive about having a court rule on the legality of their wars. Therefore, no one has been charged with aggression since the end of World War II. Until 2018, no international court even had jurisdiction over the crime (think of the 2003 illegal invasion of Iraq). While inactivity in this most severe of situations could render the criminal prohibition of illegal war a dead letter, an aggression tribunal could decisively revive it. Additionally, as aggression is a “leadership crime” by definition, it can be linked to Putin without having to name any specific war crimes that have taken place.

Additionally, only an international court could indict Putin because international law grants immunity to certain serving officials, including heads of state, before the domestic courts of another state (though it would still lack the ability to capture him). The UN General Assembly recommended establishing a special tribunal between Ukraine and the UN. Two other options include a so-called “hybrid” international tribunal integrated into the Ukrainian legal system. On February 3, the EU and Ukraine announced their intentions to establish an International Center for the Prosecution of the Crime of Aggression in Ukraine in The Hague to coordinate investigations and gather evidence for upcoming trials without waiting for either tribunal to be constituted.

Present problem

It is admirable that Ukrainians place such a high value on the law, and it is important to respect the wishes of those who have been directly affected by this awful violence. However, this time, double standards are at play. The United Kingdom, France, and, particularly, the United States (not even a party to the ICC’s Rome Statute) prevailed against a majority of ICC states and won a crucial limitation that, in the absence of a Security Council referral (where they could have been referred), prevents the ICC from looking into Russia’s aggression and Russian war crimes and crimes against humanity in Ukraine at the same time. Some may argue that this is the only reason the ICC has not yet indicted Putin. According to Luis Moreno Ocampo, the first ICC prosecutor, the creation of a special tribunal by Western nations to try crimes committed by the leaders of Russia and Belarus would “consecrate selective justice,” strengthening the idea that international justice only intervenes against “enemies or outcasts.” In the view of the majority of the world, the legitimacy of the ICC and the entire justice enterprise has been weakened by this perception, which is mostly justified. Ocampo, like many others, suggests an amendment to the Rome Statute in its place, which would allow the ICC to prosecute aggression on the same grounds as it does other war crimes—when it is committed by citizens of state parties or on the territory of nations that have acknowledged the ICC’s jurisdiction (this is why Russian war crimes in Ukraine and US war crimes in Afghanistan can be investigated, though neither is an ICC state party). Khan, the current prosecutor, agrees, stating that the ICC, which “was deliberately negotiated and meticulously established and which we are attempting to fund,” should be used to fill any gaps in the accountability architecture. (It should be remembered that the ICC, which has cost around $2 billion over the past 20 years and has not succeeded in convicting any state official anywhere of committing an atrocity, is currently experiencing a resurgence as a result of the conflict in Ukraine.)

However, because amending the Rome Statute is laborious and will take time, supporters of good-faith tribunals have called for a “two-track approach” in which separate initiatives are made to change the ICC’s jurisdiction over aggression going forward and a special court is immediately established to handle the aggression against Ukraine. However, any change made at this time might legally include the entire invasion and go back at least to 2018. In addition, some key players, like the UK and France, have not even agreed to the ICC’s current aggression jurisdiction, raising concerns that the two-track approach is “empty PR” and that once a Ukraine tribunal is established, talk of amending the Rome Statute will cease. These factors have led critics to believe that the two-track approach is merely a “PR stunt” and that once a Ukraine tribunal is established, talk of amending the Rome Statute will cease.

Let’s be clear: Putin has to be held accountable for alleged war crimes and aggression. Even if he is not detained today, these crimes have no time limits and will follow him forever. The critical question is whether crimes committed by western actors will likewise be subject to the welcome justice movement surrounding the atrocities he has inflicted on Ukraine.