Graves unearthed in the town of Izyum, Sept. 2022, after territory was recaptured from Russian forces. Credit - Yasuyoshi Chiba—AFP/Getty Images
In the office of Andriy Smyrnov, the deputy head of Ukraine’s presidential administration, the wanted posters spread across the desk serve as a kind of mission statement. They show the faces of five Russian officials, led by President Vladimir Putin, next to a list of the charges Ukraine has leveled against them: aggression, war crimes, crimes against humanity. “We had these printed as a reminder,” Smyrnov says while pacing around his desk on the third floor of the presidential compound, one floor down from the chambers of his boss, President Volodymyr Zelensky. “There’s no alternative to putting Putin on trial,” he says.
The question is where, and under whose authority. As the top aide to Zelensky on judicial matters, Smyrnov, 42, has spent the past year charting a path to an improbable destination: a courtroom, somewhere, with Putin in the dock. Every step has been painstaking, with Ukraine’s closest allies often blocking the way. But Smyrnov, who has no experience in international law, has made surprising progress. Last fall, he says, “Nobody even wanted to talk to us about a tribunal. Now look at how quickly the civilized world is waking up.”
On March 16, investigators working with the UN Human Rights Office reported that Russian forces committed crimes against humanity, a rare rebuke from a UN body against a sitting member of the UN Security Council. The following day, the International Criminal Court in The Hague (ICC) issued a warrant for Putin’s arrest, charging him in connection with another alleged war crime: the mass deportation of Ukrainian children to Russia. Less than two weeks after that, the U.S. set out a plan to put Putin on trial for the crime of aggression, which some scholars describe as the root of all war crimes.
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None of these developments are likely to achieve justice as Zelensky, Smyrnov, and their team have envisioned it. The ICC’s warrant will be toothless unless Putin travels to a country willing to arrest him, and the U.S. plan for an “internationalized national court” remains vague; some legal experts say it would be easy for Putin to sidestep or ignore. But it all feels like a breakthrough to Smyrnov and his colleagues. “When it came to creating a tribunal,” he says, “there were a lot of issues on the agenda that seemed unattainable half a year ago. In reality, they were well within reach.”
Before the invasion, Smyrnov’s role in the presidential headquarters mostly involved pushing paper. He worked on judicial reforms and helped prepare documents for Zelensky’s signature. A lot of that changed on the morning of Feb. 24, 2022, when Russian missiles began raining down on cities across Ukraine. Holed up in their bunker beneath the presidential compound, Zelensky and his aides realized that their judicial system could soon be hijacked. If the Russians seized control of the courts, they could begin issuing legal decisions that would undermine Zelensky’s authority or legitimize the puppet government that Moscow wanted to install in his place.
To prevent that, Smyrnov rushed to the server room of a Kyiv courthouse and, with help from an officer of Ukraine’s security services, broke through the door. Once inside, they unplugged the court’s internal computer network—the judicial equivalent of blowing up a bridge to thwart the advance of enemy tanks. “In terms of separation of powers, that’s probably not what you should do,” he says, pulling up photos he took that day of the courthouse servers, their wires ripped out and dangling. “But these were extraordinary times.”
By early April, the President’s legal department shifted to a new challenge. The Russian military’s retreat from the Kyiv region exposed gruesome atrocities in places they had occupied. The streets of Bucha, a suburb of the capital, were littered with the bodies of dozens of civilians; hundreds more were later found in mass graves around town. In the wake of that massacre, Zelensky’s calls for justice intensified.“Accountability must be inevitable,” he told the UN on April 5, 2022, the day after he saw the evidence of war crimes in Bucha for himself.
Under international law, the Security Council can create a tribunal to prosecute war crimes, as it did after the wars in Yugoslavia and Rwanda in the 1990s. But that would not work in the case of Ukraine, because Russia, as a permanent member of the Security Council, holds a veto over all its rulings. As they looked for an alternative, Smyrnov and his team found themselves studying the Nuremberg trials of Nazi war criminals and reviewing evidence from crime scenes and mass graves around Ukraine. “I used to get a kick out of horror movies,” Smyrnov says. “But after some of the things I’ve seen, after some of the exhumation reports, any horror movie feels like a joke.”
Ukrainian investigators have received nearly 80,000 reports of war crimes and opened thousands of cases against Russian military personnel accused of committing them. But when it comes to prosecuting Putin, Smyrnov and his team discovered, Ukrainian courts do not have the authority. It would take an internationally authorized tribunal to overcome the legal immunity Putin enjoys as a sitting head of state, says David Scheffer, a former U.S. ambassador-at-large for war crimes.
At first, the ICC in The Hague seemed like a logical venue. But unlike 123 other countries, Ukraine and Russia never ratified the treaty that created the ICC in 1998. Neither did the United States. President Trump even sanctioned the ICC leadership in June 2020 for their attempts to investigate the use of torture in Afghanistan.
The Ukrainians decided to push instead for the creation of an ad hoc tribunal focused on holding Russia’s leadership responsible for the crime of aggression, which the Rome Statute defines as a war crime. “In this whole gruesome story, the decision to start the war is the original crime,” says Christian Wenaweser, Liechtenstein’s ambassador to the UN. “It’s the crime of the leadership, the ones who ordered the invasion, and we need to have a mechanism to prosecute them for it.”
But who would give authority to such a tribunal? Ukraine decided to seek it from the 193 member states of the UN General Assembly; unlike the 15-member Security Council, Russia holds no veto there. Through the spring and summer of 2022, Smyrnov and his colleagues appealed to dozens of foreign countries and international institutions for support. But the talks were often frustrating. Prosecuting the crime of aggression tends to appeal to its victims, like Ukraine, and to smaller countries like Liechtenstein, which does not have a military. The U.S. and other big powers see less advantage in letting foreign courts judge their decisions on when to make war.
Behind closed doors, U.S. diplomats warned Ukrainian officials that a tribunal could hinder Washington’s ability to reach Putin in an emergency—if, for instance, the war escalated into a nuclear standoff, two of the officials said. Others said that it could prolong the war by impeding peace talks. One European official even told his Ukrainian counterparts the tribunal could only be fair and balanced if it included a Russian judge.
Smyrnov found it hard to respond to such arguments without losing his temper. As the evidence of Russian atrocities piled up in agonizing detail, he often fell back on sarcasm. “Let’s just write Putin a greeting card and say, Dude, you’re awesome. We bow our heads. We won’t judge you for your crimes of aggression,” Smyrnov says between pulls on a vape, summarizing a point he has often made to foreign officials. “Or how about we stop being afraid,” he says. “How about we team up and hold him accountable.”
By September, the effort reached what he calls “a psychological plateau.” European institutions and parliamentary assemblies had backed the idea of a tribunal. But with heads of state, Smyrnov says, “we reached the limits of our ability to communicate.” The lawyers asked Zelensky to step up the pressure, and he pushed harder for a tribunal in his talks with foreign leaders. As Ukraine made gains on the battlefield, the prospect of holding Russia to account became easier to imagine.
In January, the European Parliament voted 472 to 19 to support a tribunal’s creation. The vote was symbolic, but it gave Kyiv hope that momentum might turn its way at the UN General Assembly, where Ukraine could count on only a few dozen votes. Russia’s influence there was one obstacle. But support from the U.S. was also far from certain.
In December 2022, Congress authorized the U.S. to aid “investigations and prosecutions” related to the war in Ukraine. Yet the Pentagon raised objections, concerned about setting a precedent that could put U.S. officials in legal jeopardy. (A decision whether to give intelligence to the ICC for its case against Putin is due to come before President Biden soon, according to the New York Times.)
At the end of March, Smyrnov’s goal of an ad hoc tribunal seemed to get a boost from the Biden Administration. In a speech on March 27, America’s ambassador-at-large for global criminal justice, Beth Van Schaack, said the U.S. would endorse an “internationalized national court” that Ukraine could establish with support from the U.S. and its allies, not the UN. “This kind of model,” she said, would “demonstrate Ukraine’s leadership in ensuring accountability for the crime of aggression.”
To some legal scholars, the approach looked deeply flawed, as it would still allow Putin to claim immunity as a sitting head of state. “Unfortunately it plays into Putin’s hands,” says Scheffer, who held the same post as Van Schaack during the Clinton Administration. “Putin and his colleagues can ignore the prospect of prosecution for the crime of aggression.” Skeptics view the move as an attempt by Washington to derail the prospect of a UN-authorized tribunal.
But Ukraine sees it as another step on the road to justice. A few months ago, Smyrnov says, the U.S. opposed any tribunal that would hold Russian leaders accountable. The Ukrainians have not given up on the hope of a resolution in the UN General Assembly that would empower a tribunal under international law, and they plan to keep rallying support for such a vote in the months ahead. “We’ve overcome our fear,” Smyrnov says. “The rest should be easier.”—With reporting by Julia Zorthian