Aggression Tribunal Given Fresh Impetus

The possibility of prosecuting Russia’s leadership for the crime of aggression was given fresh impetus by a decision at the Lviv justice conference to establish a dedicated centre focusing on the issue.

The International Centre for the Investigation of Crimes of Russian Aggression (ICPA) will be established in The Hague, according to a document ratifying its foundation agreed on March 4 as part of the United for Justice event attended by prosecutors, politicians and diplomats. 

“We signed an additional agreement to the agreement on the Joint Investigative Team [JIT], which provides for the creation of an International Centre for the Investigation of Crimes of Russia's Aggression against Ukraine in The Hague on the basis of Eurojust [the EU Agency for Criminal Justice Cooperation]," said Andrii Kostin, prosecutor general of Ukraine.

The JIT was set up with the support of Eurojust to collect evidence and investigate core international crimes committed in Ukraine. It comprises experts from the International Criminal Court (ICC) Ukraine, Lithuania, Poland, Estonia, Latvia, Slovakia and Romania. Eurojust legislation was amended to allow the agency to preserve, store and analyse relevant evidence in a judicial database launched in February 2023. 

Myroslava Krasnoborova, liaison prosecutor for Ukraine at Eurojust, said that the hope was that the ICPA would “accelerate the ongoing discussions about the accountability for the crime of aggression”.

She explained that the ICPA would be part of the support structure of the JIT and focus on the collection, analysis and preservation of evidence related to the crime of aggression committed.

“The ICPA will ensure that important evidences are secured and we can build the case while the discussions on political level are ongoing,” Krasnoborova continued. “We expect the prosecutors involved to work from The Hague on a semi-permanent basis and to have the ICPA operational already this summer.”

The scale of justice processes in Ukraine in the wake of Russia’s invasion remains daunting. Kostin’s office is investigating more than 70,000 alleged Russian crimes, with thousands still waiting for a decision. 

International support is key; currently, war crimes committed by Russians in Ukraine are being investigated in 21 countries.

“The main goal of the [Lviv] event was to build a network of different levels of responsibility for war crimes,” said Oleksandra Reshmedilova, an analyst at the Public Diplomacy Foundation

She said that such events were key to ensuring justice for war crimes, noting the efficacy of last summer’s Ukraine Accountability Conference in The Hague.

Organised by the government of the Netherlands, the office of the prosecutor of the ICC, and the European Commission, the Dialogue Group on Responsibility for Ukraine was created at the event.

Formally launched at the Lviv event, the dialogue group promotes coherence across the diverse range of ongoing initiatives “and this testifies to close international legal cooperation at all levels,” Reshmedilova emphasised.

As Ukraine has not ratified the Rome Statute which established the ICC, its jurisdiction does not extend to the situation in the country. However, Kyiv has twice exercised its prerogatives to accept the court's jurisdiction over alleged crimes under the Rome Statute occurring on its territory since 2014 in the wake of the unrest in Maidan and the war in Donbas.

Hence, the ICC can investigate alleged genocide, crimes against humanity and war crimes committed in the territory of Ukraine. It started this process in March 2022 and has opened one office in Kyiv, with plans to add three regional branches. 

However, it does not have jurisdiction over Russia’s use of aggression against Ukraine. A special tribunal would be needed for that particular crime.

While there is agreement on the need to create a mechanism to prosecute the masterminds of war crimes, the form in which such a mechanism remains to be identified. 

Participants at the Lviv event addressed the multi-layered challenges of the legal procedures, what form the tribunal would need to have and what jurisdiction would apply.

“Ukraine, together with its allies and partners, has developed three models for the establishment and operation of a special tribunal regarding the crime of Russian aggression,” Reshmedilova explained. “The first model under consideration is the creation of a special tribunal based on Ukraine's agreement with the UN with the adoption of a corresponding resolution of the UN General Assembly. The second option is the creation of a tribunal based on a multilateral open international agreement between the states of the civilised world.

“The third model is the creation of a special tribunal as a court that will work on the basis of Ukrainian law and Ukrainian jurisdiction, with the involvement of an international element for its construction and operation,” she continued. In practice, this could involve international judges, prosecutors and support and be located somewhere in Europe.

Kostin said at the Lviv event that Kyiv was evaluating the first two options while categorically opposing the third, because national legislations foresaw immunity for other countries’ leaders.

“Therefore, in order to bring them [Russian leaders] to criminal responsibility for the crime of aggression, we must use the international mechanism, which will be based on international law, and not on Ukrainian national legislation,” Kostin noted. “Therefore, any models that provide for hybrid models of this tribunal, that provide for the application of Ukrainian law, do not achieve the goal that the entire Ukrainian people are waiting for. Namely, bringing Putin and his entourage to criminal responsibility for aggression.”

The US has so far declined to commit to the option of a tribunal of aggression, focusing on supporting exiting routes to international justice.

US Attorney General Merrick Garland announced in Lviv that Washington was increasing its cooperation with the international investigative team and had expanded its jurisdiction to prosecute perpetrators of war crimes on its own territory.

Krasnoborova noted that the US department of justice and the national authorities participating in JIT signed a memorandum of understanding at the Lviv conference.

“This memorandum will ensure the closer coordination between the JIT countries and the US authorities in their respective investigations in connection with the war in Ukraine,” she said.

Krasnoborova added that it was “indeed symbolic” that the landmark event had been held in Lviv, “the well-known city in international criminal law”.

Hersch Lauterpacht and Rafal Lemkin, two of the leading international lawyers of the 19th century, coined the terms "genocide" and "crime against humanity" in the city, then known as Lemberg. This laid the legal foundation for the Nuremberg trials against Nazi leaders after the end of World War II.