WHY A SPECIAL TRIBUNAL FOR UKRAINE ON THE CRIME OF AGGRESSION?

The crime of aggression is the mother of other war crimes. It is the use of armed force by a State against another State’s sovereignty, integrity, or independence. Russia’s aggression is a clear violation of Ukraine’s sovereignty and territorial integrity and constitutes a violation of international law, including the UN Charter.

The International Criminal Court does not have jurisdiction to prosecute aggression in Ukraine. The establishment of an appropriate justice mechanism for the crime of aggression is needed to ensure full accountability for the most serious crimes. Ensuring accountability for the crime of aggression committed against Ukraine is critical in order to signal that such a crime will not be repeated in the future nor go unpunished.

Options available for setting up the Special Tribunal:

1. Tribunal established by the United Nations.

• Based on resolution of the Security Council adopted under Chapter VII of the UN Charter.

Legal basis:

• Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.

Art. 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

• Article 25 of the UN Charter «The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter».

Weak points: Such an initiative would however face the prospect of the Russian Federation’s veto as a permanent member of the UN Security Council.

• Based on the decisions of the United Nations General Assembly.

Legal basis:

Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting (The UN Charter).

2. Tribunal established through an agreement between Ukraine and an international organization or an agreement between states.

Weak points: This option will be more time-consuming than in case of operation through the UN. This is since the UN is the international organization which includes the biggest amount of member states, in the meantime any other solution would entail the need for agreements with larger number of individual states and time for negotiations with each individual state.

Models of Special Tribunal for Ukraine on the Crime of Aggression

1. New ad hoc tribunal for the crime of aggression against Ukraine

Historical examples:

The international military tribunals for Nuremberg and Tokyo (established by an agreement);

The international criminal tribunals for the former Yugoslavia and Rwanda (established by a resolution adopted under Chapter VII of the UN Charter)

2. Hybrid tribunal (operating under Ukrainian law with support from the international community, basing its jurisdiction on the Ukrainian criminal law).

Weak points:

Jurisdiction: The Constitution of Ukraine does not allow the creation of a special tribunal. In the meantime, The Constitution of Ukraine cannot be amended due to martial law.

Immunity: Putin, as well as his prime minister and foreign ministers enjoy immunity from prosecution while they stay in power.

Legitimacy: The tribunal established on the basis of the legislation of Ukraine might face lack of recognition among the states.

CONCLUSION: ad-hoc tribunal established by the United Nations is the most effective form of a special tribunal from the perspective of jurisdiction, legitimacy and state immunity.

What is needed to ensure the special tribunal is established:

In both cases, whether it’s an ad hoc or a hybrid tribunal, support of the international community will be essential.

• Political will of the international community to actively engage in discussions on the establishment of a Special Tribunal, in particular through the decisions of the United Nations General Assembly.

It is essential to get the approval from the United Nations to overcome the obstacle of immunity.

Author: Liudmyla Hrytsaienko