STATEMENT CALLING FOR THE CREATION OF A SPECIAL TRIBUNAL FOR THE PUNISHMENT OF THE CRIME OF AGGRESSION AGAINST UKRAINE
It has been 10 months since Russia, backed by Belarus, launched one of the largest ground invasions in Europe since the Second World War.
Since then, thousands of Ukrainian civilians have been killed or injured, eight million people have been internally displaced and around eight million have become refugees. Civilian infrastructure and economic assets worth tens of billions have been destroyed or plundered, and irreplaceable cultural monuments reduced to rubble. Large swathes of Ukrainian territory remain under occupation or attack.
The acts of aggression can be traced back not only to the February invasion but to the decision of Russia’s military and political leadership to attack and occupy Crimea, the City of Sevastopol, and the Donbas from 2014 onwards.
If proven in court, these acts of aggression could constitute what the Nuremberg trials termed the “supreme international crime”. For it is the crime of aggression from which most other international crimes – war crimes, crimes against humanity and genocide – often flow.
The International Criminal Court (“ICC”) has powers to investigate any act of genocide, war crimes and crimes against humanity committed on the territory of Ukraine. However, the ICC cannot exercise its jurisdiction in relation to the crime of aggression if the act of aggression is committed by a state that is not party to the statute of that court, unless the UN Security Council refers the matter to it. Since Russia has not ratified that statute and would exercise its veto in the Security Council against a referral, the ICC cannot, as things presently stand, investigate crimes of aggression against Ukraine.
So to complement the actions now underway before the ICC, we propose the creation of a special tribunal with a limited focus on the crime of aggression. The Special Tribunal for the Crime of Aggression against Ukraine can be set up at pace. During the Second World War, nations met in London in 1941 to draft a declaration at St James’ Palace on Nazi German war crimes which led, at the end of the conflict, to the creation of an International Military Tribunal and the Nuremberg trials.
The Special Tribunal should be constituted – on the same principles that guided the allies in 1941 – to investigate the acts of aggression by Russia, aided by Belarus, in Ukraine and whether they constitute a crime of aggression. As well as investigating and indicting President Putin, the tribunal could also hold to account the members of Russia, and possibly Belarus’, national security council, as well as the political and military leaders of this manifestly illegal war.
The tribunal would draw on international law which proscribes aggression and the domestic law of Ukraine – which enshrines aggression as a criminal offence – and respond to a direct request from President Volodymyr Zelensky and the Ukrainian Parliament to take forward this initiative.
Support for a Special Tribunal has been steadily grown since it was first proposed by Philippe Sands KC in February, and backed by over 150 leading international lawyers and world leaders – including Ukrainian Foreign Minister Dmytro Kuleba – in a public declaration.
But three recent developments have significantly increased the momentum behind the campaign. On 30 November, President Ursula von der Leyen announced the European Commission’s support for the Special Tribunal, arguing that “Russia must pay for its horrific crimes, including for its crime of aggression against a sovereign state.” That same day, the French foreign ministry, which had been reticent to commit to a Special Tribunal, said that it was working with its European partners on the proposal. And on 12 December, the Dutch Foreign Minister Wopke Hoekstra said that the Netherlands would be willing to host the Special Tribunal. This adds to significant support for the Tribunal among States in Eastern Europe.
Given its global influence and historic leadership on human rights issues, the UK could play a vital role in further galvanising international backing for the proposal.
We are therefore calling for the UK government to support a Special Tribunal for the Crime of Aggression being committed in Ukraine. By doing so, we can act in solidarity with Ukraine and its people, signal our resolve that the crime of aggression will not be tolerated, and ensure that those who have unleashed the atrocities we have witnessed over the past 10 months will be brought to justice under the law.