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21 March 2023
The special ad hoc tribunal fills in the gaps from the ICC and will bring justice for Ukraine while deterring the actions of dictators in the future.
On Saturday, the EU agreed to establish a new tribunal to prosecute Russian crimes of aggression committed during the war in Ukraine. As Russia rejected the International Criminal Court (ICC) jurisdiction, the EU agreed to establish an International Centre for the Prosecution of Crimes Aggression against Ukraine (ICPA) to fill in any gaps in prosecution from the ICC.
Although self-evident and undeniable, the crime of aggression Russia has committed against Ukraine currently cannot be prosecuted and adjudicated – no institution in the world can do that. The solution was offered as early as four days after Russia’s full-scale invasion, embraced and endorsed by Ukraine, to create a special ad hoc tribunal.
Now, one year into the full-fledged war, the EU is moving forward with its special tribunal to bring justice for Ukraine as a victim of this aggression while sending a signal to all existing and hidden dictators out there that the international community is not ready to tolerate the invasion of other countries and annexing their territories.
Why the International Criminal Court Cannot Bring Justice
International law defines four grave international crimes, namely war crimes, crimes against humanity, genocide and crime of aggression. As of today, the Rome statute defines and codifies those very clearly and empowers International Criminal Court to prosecute and adjudicate these crimes.
However, it doesn’t automatically mean from now on, every aggressor can be prosecuted and tried by the ICC. The nature of international law requires the states to recognise this by incorporating it into each own’s legal system (normally through a so-called procedure of ratification).
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Moreover, the crime of aggression was codified later than other crimes, with the adoption of the so-called Kampala amendments only in 2010. The ICC will only be able to investigate the crime of aggression if both states-parties in the international conflict have ratified the Rome statute, including the Kampala amendments.
Since neither Ukraine nor Russia has ratified the Rome statute, the ICC cannot investigate Russian aggression against Ukraine. And even if Ukraine does, it wouldn’t make any difference – because Russia obviously never will.
To this end, pursuing now the need for Ukraine to ratify the Rome statute in public discourse is a pointless exercise. It would need to happen eventually, but at this point, it does not help to solve the problem but distracts precious attention from focusing on what would. So do the misleading and frustrating discussions on the role the ICC should play in investigating the crime of aggression in this case.
If there were a way for the ICC to investigate Russia’s crime of aggression, Prosecutor Khan would have opened the case long ago. But he never did because ICC cannot investigate the crime of aggression in this case. It is an accountability gap that leads to a situation where no one can hold Russian political and military leaders responsible for the aggression Russia has committed against Ukraine.
Thankfully, the EU has answered the call.
The ICPA Fills in the Legal Gap for Justice
It is not unprecedented to establish an ad hoc criminal tribunal – they have been in the past. However, unlike other tribunals that were targeting different grave international crimes, the ad hoc tribunal on aggression, as touted by the Ukrainian government, is to only consider this one particular crime, the crime of aggression. And this crime is different from other grave international crimes in two critical ways.
First, the crime of aggression, by definition, targets the highest political and military leadership of the aggressor state. It might be problematic with war crimes and crimes against humanity because building the case up the chain of command to the leadership is difficult. This means that without investigating the crime of aggression in 5-7-10 years, we may end up with the low or middle ranks of the Russian military in the dock but not Putin or his accomplices from the highest ranks of the Russian leadership.
Secondly, the victims of the crime of aggression are not specific people but rather the attacked state. There is no need to collect evidence “in the field”. The fact of aggression is indisputable and has been repeatedly confirmed in the decisions of many international organisations. It will not require a lot of time, staff, or financing to be processed. In fact, there even has been a model indictment developed. All in all, the case can be considered relatively quickly, and the decision can be delivered in months.
How Advocacy Helped the ICPA Come About
Based on all of the advocacy efforts throughout the past year, the special tribunal has been receiving more and more support. Just last December, I was told by those in Brussels during my advocacy mission that “”You’ve made it a topic here”.The calls for the establishment of the tribunal were expressed in several PACE resolutions, the PA NATO declaration, the PA OSCE resolution, a resolution of the European Parliament and supported one way or another by the parliaments of Lithuania, Estonia, Netherlands, France, United Kingdom, and the Czech Republic, with more to come.
Back in November 2022, the first stages of closing this gap began. The European Commission presented different options to Member States to ensure justice would be served, including establishing a dedicated tribunal backed by the UN. Indeed, having UN support would have been the ideal scenario. Since the UN Security Council is in a deadlock because of Russia’s veto power, the Ukrainian government pursued the decision of the UN General Assembly, which doesn’t have the power to establish tribunals. Yet, it can give it legitimacy and facilitate the establishment of such judiciaries.
Still, having had the General Assembly’s support on such issues as a tribunal for Russian leadership was not easy. Not only because concrete decisions are always difficult to get support for when it comes to the General Assembly, which represents the entire world. Even if supporting previous resolutions related to Russian aggression, some countries would fear economic unrest while others would fear further deterioration, and many countries of the Global South feel less inclined to engage in something this specific. But surprisingly for me, many do see it as a “dangerous precedent”.
One needs to remember that the criminalisation of aggression is a fairly recent development. Wars have been a legitimate means of foreign policy for a long time. It was, in fact, the development of international law in the aftermath of the devastating Second World War and the Nuremberg process that resulted in the eventual prohibition and the criminalisation of aggression and other related grave international crimes (war crimes, crimes against humanity and genocide).
What it means is that international law only moves towards the complete prohibition of aggression; we’re not there yet. And establishing this tribunal on Russian aggression would mean a big acceleration to this process – whoever conducts actions that fall under the definition of aggression would need to face responsibility.
The ICPA is the first step in this process to preserve evidence and prepare the prosecution for future trials, whether national or international. This tribunal would be a point of no return – from now on, every action that falls under the definition of aggression would need to face responsibility. But not everybody is ready for that.
The EU Signals for Justice
The move by the EU to establish the ICPA signals one clear principle – that the tribunal is the only resort to punish Russian aggression against Ukraine, and justice will be served. Whatever economic, political or “dangerous precedents” rationales one might have against establishing the tribunal – though important – do not take away from the main message the EU is sending – not punishing Russian aggression would set an even more dangerous precedent. It would mean that the world is ready to tolerate aggression.
When advocating for the establishment of the tribunal, I heard a lot of technical questions: how will the tribunal deal with the issues of immunities? Is it going to be hybrid? What will be the legal foundation for its establishment? What will be its operation, composition and functioning? How will it cooperate with the ICC not to weaken this institution? These are all important questions and ones that are starting to be answered. The ICPA will be housed in the Hague with a joint investigative team that was established last year consisting of Lithuania, Poland, Ukraine and the European Union Agency for Criminal Justice Cooperation (Eurojust).
Still, the decision made here by the EU is one that tells the Ukranian people – and the international community – that authoritarianism will not be allowed today. Countries do not have to decide for themselves only whether or not they want to live in a world where borders might be invaded, and no consequences will be given for those actions. It is a signal that the EU will take matters into its own hands to advocate for justice being served.
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Published as part of our Future of Ukraine Fellowship programme. Learn more about it here and consider contributing.
Featured image by Galan Dall.
