Ukraine: Why a Special Tribunal is Crucial

In February 2014, Ukraine became the victim of an act of aggression committed by Russia’s President Vladimir Putin. The invasion of Ukrainian territory was a blatant denial of the foundational principle of the prohibition of the use of force against the political independence and territorial integrity of another state, as well as a violation of the right of all peoples to freely pursue economic, social and cultural development. 

Then, on February 24, 2022 - in a continuation of its previous illegal actions - Russia launched a full-scale war of aggression against Ukraine. It went even further, on September 30 announcing its recognition of the so-called “independence” of the Kherson and Zaporizhzhia regions following a sham referendum. Russia once again violated the territorial unity of Ukraine, thereby continuing its aggression.

Under international law, aggression is a leadership crime that differs from other international crimes. For example, in the case of war crimes, crimes against humanity and genocide, the perpetrators are not just those who issued the criminal order, but those who carried it out. 

Regarding the crime of aggression, the perpetrators must be in a position to “effectively exercise control over or to direct the political or military action of a state”. Under Article 8 bis of the Rome Statute of the International Criminal Court (ICC) the crime of aggression consists of “the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of an aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. 

This is why the establishment of the Special Tribunal for the Punishment of the Crime of Aggression against Ukraine is necessary. Currently, there is no international court that could try Russia's top political and military leadership for these acts of aggression. 

The ICC can investigate alleged genocide, crimes against humanity and war crimes committed in the territory of Ukraine. It obtained jurisdiction due to the declarations made by Ukraine in 2014 and 2015 for all crimes committed during the armed conflict since 2014. 

As of now, the ICC with the cooperation of Ukraine and other states, has made significant achievements in addressing genocide, crimes against humanity and war crimes. But unlike with other international crimes, the ICC faces objective difficulties in gaining jurisdiction over the crime of aggression.

Russia has not ratified and will clearly not ratify the Rome Statute and the Kampala Amendments, which would allow the ICC to prosecute its leadership for the crime of aggression. And there is no use in hoping that UN Security Council refers the situation to the ICC as long as Russia groundlessly remains a permanent member and abuses its right of veto. 

So in the current situation the only option to hold Putin and many others from the Russian leadership accountable for the crime of aggression against Ukraine is the establishment of a Special Tribunal.

The initiative to establish the Special Tribunal has received wide approval and support from the international community. Resolutions of the Parliamentary Assembly of the Council of Europe, the European Parliament, Parliamentary Assembly of OSCE and declaration of NATO Parliamentary Assembly are prominent examples. 

As of now, Ukraine is considering two legal options for the creation of the Special Tribunal. The first is its establishment on the basis of a multilateral treaty between states, which will be open to accession and to endorsements. The second option is the establishment of the Special Tribunal on the basis of agreement with international organizations, namely the UN, EU and the Council of Europe.

At the same time, the ICC undoubtedly remains a key international body for investigation of war crimes, crimes against humanity and genocide. The establishment of the Special Tribunal will not impede the ICC’s investigation of the situation in Ukraine. It will only complement ICC efforts by investigating and prosecuting Russia’s top political and military leadership for the crime of aggression against Ukraine. 

Moreover, the establishment and functioning of the Special Tribunal will be based on the norms and approaches applied by the ICC and set out in its Rome Statute. 

We expect that the Special Tribunal will make rapid progress in its investigation and prosecution, given the relative ease of proving the act of aggression of the Russian Federation against the independent territory of Ukraine. This has already been made clear by the resolutions of the UN General Assembly and numerous decisions of the bodies of the European Union and the Council of Europe.

Establishing specific individuals' responsibility for war crimes, especially at the level of political leadership, is also crucial. However, this requires the collection of relevant evidence, and amidst a situation of ongoing conflict may take years of work to complete. 

The Special Tribunal will be one element of establishing peace and ensuring such aggression is not repeated. The world has to show that the responsibility for the crime of aggression is real, and not just theoretically provided for by the norms of international law. 

Considering the urgency of establishing the Special Tribunal, Ukraine needs the international community to rapidly take action and establish a mechanism to bring those responsible to justice. 

Dr Anton Korynevych is an international lawyer and ambassador-at-large of the ministry of foreign affairs of Ukraine.
Anastasiia Mochulska is a lawyer of the ministry of foreign affairs of Ukraine.