Urgently advocating for the establishment of the Special Tribunal for the Crime of Aggression against Ukraine
Russia’s war against Ukraine is an extraordinary genocidal war of aggression, an act with the sole purpose of eradicating Ukrainian culture, history, language, and the entire state. It is a textbook example of the crime of aggression, a flagrant violation of international law that goes far beyond the “mere” prohibition of the use of force (click here).
The Russian Federation openly attacks the global legal order; it aims to resurrect the Russian empire with its relentless and brutal expansion. In 2016, two years after the attempted annexation of Crimea and the occupation of Donbas, and eight years after evading Georgia, Vladimir Putin openly announced that 'Russia’s borders do not end anywhere.' Putin's declaration is now a reality. Russia’s ultra-nationalistic, barbaric conquest represents the most brutal military act since World War II. Territorial sovereignty, economic integration and the fortification of democracy are all under threat by this war, and there is little doubt that if Ukraine falls, Moldova and the Baltic states will become Russia’s targets of acquisition. This is why we must act now before it is too late.
There is no question that a Special Tribunal for the Crime of Aggression is necessary. The evidence is indisputable. However, the establishment of the tribunal is contingent on a crucial element - political will.
There is no question that a Special Tribunal for the Crime of Aggression is necessary. The evidence is indisputable. However, the establishment of the tribunal is contingent on a crucial element - political will.
Since the onset of Russia’s full-scale invasion on February 24, 2022, Ukraine and its international partners have been united in their unwavering efforts to establish the tribunal. This is not just merely a Ukrainian issue but also a global concern that has sparked a unified call for justice.
This week, the Committee of Ministers of the Council of Europe took the critical step of authorizing the Council’s Secretary General to prepare the necessary documents for a draft agreement between the Council and Ukraine on the establishment of the tribunal (click here). This follows similar calls from the European Council and resolutions by the Parliamentary Assembly of the Council of Europe, the European Parliament, the NATO Parliamentary Assembly, and the Parliamentary Assembly of the Organization for Security and Co-Operation in Europe, that have all echoed the call for the tribunal’s urgent establishment (click here).
The Verkhovna Rada of Ukraine, the Seimas of Lithuania, the Riigikogu of Estonia, the House of Representatives of the Parliament of the Netherlands, the Parliament of the Czech Republic, the Parliament of Latvia, the Parliament of Slovakia, the Parliament of Poland, and the German Bundesrat and Bundestag have all stood together, expressing their support for the establishment of the tribunal.
[T]he crime of aggression focuses on those political and military leaders who plan, prepare, or execute the act of aggression. The perpetrators of these crimes must be prosecuted, which means the top political and military leaders of the aggressor state must be brought to justice.
The International Bar Association, the world’s largest organisation of lawyers, has been steadfast in its support for a tribunal (click here). There is also support from numerous other legal and academic experts and international public figures (click here).
Underscoring the international efforts to hold the Russian Federation's political and military leadership accountable for its war of aggression, support for the tribunal continues to be emphasised at high-level international events, most recently the conference held in The Hague on April 2 that produced the Political Declaration of the Ministerial Conference on Restoring Justice for Ukraine (click here).
At a joint 2023 Ukraine and EU summit, the creation of the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) was set in motion (click here). Based in The Hague, the ICPA is the first international effort to coordinate the investigation of the crime of aggression. It now coordinates the investigation of the aggression against Ukraine and preserves and stores evidence for future trials.
The ICPA is linked to a joint investigation team specifically focusing on supporting and enhancing investigations into the crime of aggression. Crucially, the ICPA provides an opportunity for the Office of the Prosecutor of the International Criminal Court and the United States (through a special prosecutor for the crime of aggression) to support its activities (click here).
All of the above actions represent a strong inclination to pursue accountability for the crime of aggression against Ukraine. Significant progress toward this aim has been made since the idea of a special tribunal was first suggested in 2022. But more work needs to be done. Investigations are not enough, nor are political statements. There must be an instrument to carry out justice. The Special Tribunal for the Crime of Aggression against Ukraine must be established, and the international community must find a way to do it.
The political leadership needed to accomplish this task must now come from the Core Group, which consists of representatives from 40 countries and several international organisations. This group works on legal issues in order to determine how the tribunal will function (click here).
For over ten years, Ukraine has been the victim of Russian aggression. For over two years, it has resisted Russia’s full-scale invasion, a blatant violation of the UN Charter and international law. The international community needs to ensure accountability for the crime of aggression and all subsequent crimes committed in and against Ukraine. These flagrant violations cannot be left without a well-timed legal response.
[P]eace is not sustainable without justice. The President’s Peace Formula makes abundantly clear that full and comprehensive accountability for Russia’s crimes against Ukraine is unequivocally necessary.
It is appropriate to speak of Russia’s responsibility for the war. However, the crime of aggression focuses on those political and military leaders who plan, prepare, or execute the act of aggression. The perpetrators of these crimes must be prosecuted, which means the top political and military leaders of the aggressor state must be brought to justice. Those are the individuals most responsible for their country’s war against Ukraine and the ongoing atrocities being committed against innocent Ukrainians. Those are the individuals who are the architects behind the unprovoked, illegal act of aggression against a sovereign country. Contributing to a culture of impunity by failing to bring top political and military leaders of the Russian Federation to justice is unacceptable
While heads of state are generally immune from prosecution, they can be tried before an international court, including an internationally recognised Special Tribunal for the Crime of Aggression. An international tribunal with maximum support from a broad coalition of countries ensures that high-ranking state officials responsible for the aggression are not protected by personal (“head of state”) immunity.
We must renew our commitment to preserving the international legal order and restoring justice for Ukraine and its people. Justice matters. It matters for Ukrainians who have been subjected to brutal Russian atrocities. It matters for Europe, which is experiencing the most aggressive war on its soil since World War II. It matters for the international community, which is witnessing a brutal attack on fundamental principles.
Russia’s war against Ukraine is not of moral complexity. It is a war between tyranny and rule-based order. Russia must not succeed. Ukraine deserves a just and lasting peace. The world deserves a just and lasting peace. This is at the heart of President Volodymyr Zelenskyy’s Peace Formula (click here). But peace is not sustainable without justice. The President’s Peace Formula makes abundantly clear that full and comprehensive accountability for Russia’s crimes against Ukraine is unequivocally necessary.
Establishing the Special Tribunal for the Crime of Aggression against Ukraine is an inherent part of this process. This will require international unity and an unwavering commitment to justice and accountability through concrete actions. Nothing is more important in this effort than establishing this tribunal. With the continued political will of our international partners, we can achieve it.
Iryna Mudra, Deputy Head of the Office of the President of Ukraine
Mark Ellis, Executive Director, International Bar Association
Anton Korynevych, Ambassador-at-large, Ministry of Foreign Affairs of Ukraine