Special international tribunal for the crime of aggression (Russian invasion of Ukraine)

The proposed International Criminal Tribunal for the Russian Federation is a proposed ad hoc international criminal tribunal aimed at prosecuting the Russian Federation and senior Russian and Belarusian leaders for the Russian invasions of Ukraine as one or more crimes of aggression, as a complement to the existing International Criminal Court investigation in Ukraine.^[1] Several international bodies announced their support for its establishment, including the Council of Europe,^[2] the European Commission,^[3] the NATO Parliamentary Assembly^[4] and the European Parliament.^[1]

Proposals

In April 2022 the Parliamentary Assembly of the Council of Europe (PACE) called for an ad hoc international criminal tribunal.^[5] In September 2022, the Council of Europe proposed to create a tribunal that would have a mandate to "investigate and prosecute the crime of aggression" committed by "the political and military leadership of the Russian Federation."^[2] Under the Council of Europe's proposal, the tribunal should be located in Strasbourg, "apply the definition of the crime of aggression" established in customary international law and "have the power to issue international arrest warrants and not be limited by State immunity or the immunity of heads of State and government and other State officials."^[2]

The government of Ukraine has also called for the establishment of such a tribunal.^[6][7]

In November 2022 the NATO Parliamentary Assembly designated the Russian Federation as a terrorist organization and called upon the international community to "take collective action towards the establishment of an international tribunal to prosecute the crime of aggression committed by Russia with its war against Ukraine."^[4][8] The European Commission said that the European Union (EU) would work to establish an ad hoc criminal tribunal to investigate and prosecute Russia's crime of aggression.^{[3][9][10][11][12][13][14][15][16]} In the same month the European Parliament also designated Russia as a state sponsor of terrorism, citing attacks against civilians, war crimes, and atrocities.^[17]

On 19 January 2023, the European Parliament called for the creation of an international tribunal to carry out investigations and prosecutions for Russian and Belarusian responsibility for the crime of aggression, complementary to the International Criminal Court investigation in Ukraine. The vote passed with 472 votes in favour, 19 against and 33 abstentions.^[1] On 4 March 2023 the European Union (EU) agreed to establish an International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) to fill in any gaps in prosecution from the International Criminal Court (ICC) as Russia had rejected the ICC jurisdiction to prosecute a case of aggression as neither Ukraine nor Russia ratified the 2010 ICC Kampala Amendments on "aggression" being added to the existing three grave international crimes, namely war crimes, crimes against humanity and genocide.^[18]

Analysis

Some international lawyers have criticized the proposed tribunal. Kevin Jon Heller has stressed practical concerns, including obtaining suspects and evidence, warned that the tribunal would not necessarily "be able to prosecute Russian officials who would be entitled to immunity ratione personae", and expressed worries about the "selectivity of international criminal justice" that it would express.^[19] Sergey Vasiliev has argued that an ad hoc tribunal would be unable to secure the presence of Putin or other defendants in the absence of Russian cooperation.^[20]

In contrast, Carrie McDougall has argued that an ad hoc tribunal is the best available option to try a crime of aggression that has been committed and for which the International Criminal Court lacks jurisdiction.^[21]

Core group

In late February 2023, Ukrainian foreign minister Dmytro Kuleba stated that a "core group" for creating the tribunal existed, including representation from Guatemala.^[22]

Countries supporting the creation of the tribunal

•   Australia^[23]
•   Austria^[24]
•   Costa Rica^[25]
•   Czech Republic^[26]
•   Estonia^[26]
•   Finland^[27]
•   France^[26]
•   Germany^[28]
•   Greece^[29]
•   Latvia^[30]
•   Lithuania^[31]
•   Luxembourg^[32]
•   Moldova^[33]
•   Netherlands^[34]
•   Poland^[35]
•   Romania^[36]
•   Slovakia^[26]
•   Slovenia^[37]
•   Ukraine^[38]
•   United Kingdom^[39]
•   United States of America^[40]

Other political bodies

•   EU (European Parliament)^[41][26]
•   NATO’s Parliamentary Assembly^[26]
• Parliamentary Assembly of the Council of Europe^[26]
• Parliamentary Assembly of the Organization for Security and Co-operation in Europe^[26]

See also

• Legality of the 2022 Russian invasion of Ukraine
• War crimes in the 2022 Russian invasion of Ukraine
• Joint investigation team

References

1. "Ukraine war: MEPs push for special tribunal to punish Russian crimes". European Parliament. 2023-01-19. from the original on 2023-01-19. Retrieved 2023-01-19.
2. "PACE calls for an ad hoc international criminal tribunal to hold to account perpetrators of the crime of aggression against Ukraine". Council of Europe. Retrieved 17 September 2022.
3. "Statement by President von der Leyen on Russian accountability and the use of Russian frozen assets". European Commission. Retrieved 1 December 2022.
4. "Resolution 479" (PDF). NATO PA.
5. "PACE calls for the setting up of an ad hoc international criminal tribunal to hold to account perpetrators of the crime of aggression against Ukraine". Retrieved 27 January 2023.
6. "Ukraine calls for international tribunal to bring Putin to justice more quickly". The Guardian. Retrieved 17 September 2022.
7. "President Zelensky: We are doing everything to create Special Tribunal for Russian crimes". www.ukrinform.net. 30 November 2022.
8. "NATO Parliamentary Assembly designates Russia as a terrorist state, calls for Tribunal". Euromaidan Press. November 21, 2022.
9. "Ukraine: Commission presents options to make sure that Russia pays for its crimes". European Commission. Retrieved 1 December 2022.
10. "Von Der Leyen Proposes Russian War Crimes Tribunal, Plan To Confiscate Frozen Russian Assets". Radio Free Europe/Radio Liberty.
11. "EU proposes setting up specialized court to try Russian war crimes". November 30, 2022.
12. "EU seeks specialized court to investigate Russia war crimes". AP NEWS. November 30, 2022.
13. "EU Explores New Steps to Probe Russian Crimes, Use Frozen Assets". Bloomberg.com. Bloomberg. 30 November 2022. Retrieved 1 December 2022.
14. Olson, Carly; Surman, Matt (November 30, 2022). "Russia-Ukraine War: Top E.U. Official Calls for Tribunal for War Crimes in Ukraine". The New York Times – via NYTimes.com.
15. E.U. proposes special tribunal to investigate Russian crimes in Ukraine
16. Carbonaro, Giulia (November 30, 2022). "EU special tribunal on Russia an 'important move' to show Ukraine". euronews.
17. "European Parliament declares Russia to be a state sponsor of terrorism". European Parliament. 23 November 2022. Retrieved 25 November 2022.
18. "New Tribunal Announced to Prosecute Russian Crime of Aggression in Ukraine". 8 March 2023. Retrieved 14 March 2023.
19. "Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea". Opinio Juris (blog). 2022-03-07. Retrieved 2023-05-09.
20. Vasiliev, Sergey (2022-03-03). "Aggression against Ukraine: Avenues for Accountability for Core Crimes". EJIL: Talk!. Retrieved 2023-05-09.
21. "Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics". Opinio Juris (blog). 2022-03-15. Retrieved 2023-05-09.
22. "Minister: Guatemala to join Core Group on Special Tribunal for Russian crime of aggression". The Kyiv Independent. 25 February 2023. Wikidata Q116899556.
23. "Australia has joined the list of countries that will assist in the creation of a special international tribunal on Russia's crimes in Ukraine". Retrieved 27 January 2023.
24. "Austria Supports Special Tribunal for Russia's Crime of Aggression, 33 Countries in Coalition". 16 March 2023.
25. "Costa Rica joins coalition for special tribunal to prosecute Russia". 14 April 2023.
26. "Comment and analysis: Why the world needs a tribunal to try the Russian leadership for the crime of aggression". Retrieved 14 March 2023.
27. "President of Ukraine met with the Prime Minister of Finland who is on a visit to Ukraine". Retrieved 16 March 2023.
28. "Germany's Baerbock proposes special tribunal to prosecute Russian leadership". Politico. Retrieved 16 January 2023.
29. "GREECE BECOMES THE 30TH COUNTRY SUPPORTING A SPECIAL TRIBUNAL FOR RUSSIA". Retrieved 14 March 2023.
30. "Levits repeats call for international Russia war crime tribunal". Retrieved 27 January 2023.
31. "MEPs back Lithuanian resolution on tribunal for Russia". 19 January 2023. Retrieved 27 January 2023.
32. "Luxembourg Contributes €100k to International Criminal Court". 27 March 2023.
33. "Moldovan Government Finally Burns Bridges to Russia (Part Two)". Jamestown. 23 March 2023.
34. "Dutch MPs call for international tribunal for Putin in The Hague". Retrieved 27 January 2023.
35. "Poland backs Germany's plan for tribunal for Russian war crimes". Retrieved 27 January 2023.
36. Lovett, Ian; Grytsenko, Oksana (4 March 2023). "WAR IN UKRAINE One year on". Wall Street Journal.
37. "Ihor Zhovkva had a conversation with the State Secretary for International Affairs at the Office of the Prime Minister of Slovenia". 27 March 2023.
38. "Calls for special tribunal for Russia's 'war crimes' in Ukraine". Retrieved 27 January 2023.
39. Wintour, Patrick (20 January 2023). "UK offers qualified backing for tribunal to prosecute Russia's leaders". The Guardian. Retrieved 27 January 2023.
40. "US announces it supports creation of special tribunal to prosecute Russia for 'crime of aggression' in Ukraine". 28 March 2023.
41. Ukrinform 2022e. sfn error: no target: CITEREFUkrinform2022e (help)