On January 16, 2023, German Foreign Minister Annalena Baerbock called for the establishment of a special tribunal to prosecute Russian leaders for aggression in The Hague. Foreign Minister Baerbock emphasized the need to send “a very clear message to the Russian leadership (...) and thus also to everyone else in the world that a war of aggression in this world will not go unpunished.” Foreign Minister Baerbock further called for exploring whether Russia’s crimes amount to genocide. The statement follows the announcement by France, in December 2023, that addressing the crime of aggression is a priority. In the statement, France also “fully support[ed] Ukraine’s judicial system and the International Criminal Court, both of which have jurisdiction to conduct impartial, independent investigations aimed at ensuring accountability for those responsible for such crimes.” As the support for the tribunal for the crime of aggression is growing, so is the pressure on the United States and the United Kingdom to identify their position on the issue.
In her statement, Foreign Minister Baerbock called for a reform of international criminal law to address the loophole that prevents the International Criminal Court (ICC) from prosecuting the crime of waging a war of aggression. As it stands, this gap means that ICC cannot engage in relation to Russia’s crime of aggression.
While the ICC has powers to investigate any acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine, it cannot exercise its jurisdiction with regard to the crime of aggression against Ukraine. This is as the act of aggression is committed by Russia, a state that is not a party to the Rome Statute. One option would be for the U.N. Security Council to refer the situation to the ICC. However, such an attempt would have been blocked by Russia, a permanent member of the U.N. Security Council with a veto right.
The new call for yet another legal avenue is to complement the actions now underway before the ICC, International Court of Justice and the European Court of Human Rights. The proposal is to create a special tribunal, the Special Tribunal for the Punishment of the Crime of Aggression against Ukraine (Special Tribunal), with a limited focus on the crime of aggression, which is not covered by the three other courts. As experts indicate, “To help beat back President Putin's heinous attempts to destroy peace in Europe, it is time for us to create such a Special Tribunal. By doing so we act in solidarity with Ukraine and its people, and signal our resolve that the crime of aggression will not be tolerated, and that we will leave no stone unturned in bringing to an end the terrible events we are now seeing, thereby ensuring that those who have unleashed such horrors are subject to personal accountability under the criminal law, so that justice can be done.”
On January 16, 2023, a group of over 100 experts published a statement calling for the establishment of the Special Tribunal. They explained that “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 Vladimir Putin, the tribunal could also hold to account the members of Russia’s, and possibly Belarus’s, 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 offense.”
While many countries support the step, the United States and the United Kingdom continue to shy away from expressing their support for the initiative concerned about the precedent it may set. While it may delay the creation of the Special Tribunal, it should not prevent it. Russia’s crime of aggression needs to be addressed as soon as possible. Furthermore, a clear message must be sent to all other dictators who may have Putin’s aspirations.
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