The following guest-post arguing for a special tribunal to prosecute Russian aggression in Ukraine was written by Volodymyr Pylypenko. Volodymyr holds a PhD in Law and is an Associate Professor in the International Relations Department of Lviv University of Business and Law, Ukraine.
Since the beginning of the armed aggression unleashed by the Russian Federation against Ukraine, tens of thousands of Ukrainians have died or been deemed missing. Many towns and villages have been destroyed, and the state and civilians have suffered enormous material losses. Millions of Ukrainians have been forced to leave their homes. The consequences of Russian aggression, in all their cruelty and cynicism, are comparable to the horrors of the Second World War.
Russia’s aggressive war against Ukraine has been one of the most flagrant violations of Article 2(4) of the Charter of the United Nations (UN) since it entered into force. Shortly after the aggression started, the UN General Assembly voted in favour of a resolution demanding that Russian immediately stop offensive behaviour and withdraw its troops from Ukrainian territory. Ukraine and “most of the world’s nations” condemned Russia for planning and executing aggression.
Following the invasion, millions of Ukrainians turned their eyes onto the International Criminal Court (ICC), as the only permanent body of international criminal justice with relevant powers. This court has jurisdiction over those most responsible for committing international crimes, including war crimes, crimes against humanity, genocide, and the crime of aggression.
The ICC has mechanisms to bring to justice those guilty of the crime of aggression, and it gave the global community reasons to hope that Vladimir Putin and his supporters would be condemned for launching an aggressive war against Ukraine. However, that did not happen as expected. In reality, everything has been much more complicated.
Clause 2 of Article 8 bis of the ICC Statute provides that the actions specified in the UN General Assembly resolution 3314 (XXIX) of 14 December 1974, are the acts of aggression. However, Articles 15 bis and 15 ter of the Rome Statute, define the conditions for the ICC to exercise its jurisdiction over this crime. According to the rules of Article 15 bis, the Court may proceed with an investigation on the crime of aggression if the investigation is initiated by a State that has ratified the Statute (i.e., a state referral) or proprio motu if the Prosecutor of the ICC concludes that there is a reasonable basis to proceed with such investigation.
That same article also states that the ICC shall not exercise its jurisdiction over the crime of aggression and cannot proceed with an investigation with respect to a State that is not a party to the Rome Statute when the act of aggression was committed by that State’s nationals or on its territory.
Here comes the issue: neither Ukraine nor the Russian Federation have ratified the Rome Statute. Moreover, Russia, which signed the Rome Statute in 2000, withdrew its signature in 2016. This decision came after an ICC ruling that Russia’s activity in Crimea amounted to an “ongoing occupation”. Ukraine also signed in 2000, but the Ukrainian Constitutional Court ruling of 2001, which declared the Rome Statute to be inconsistent with the Constitution, halted the ratification process. While the Ukrainian Constitution was dully amended in 2016, ratification is still yet to come.
The situation regarding the ICC’s jurisdiction under Article 15 ter appears even more deadlocked. It provides that the relevant jurisdiction can only be exercised when the UN Security Council recognizes Russian aggression as such, and then refers the situation to the court. It is not hard to guess that, considering the current division of powers in the UN and Russia’s absolute veto within the Security Council as one of its permanent members, the situation with the ‘activation’ of the ICC’s jurisdiction under this condition seems dim – at best.
We must therefore admit that the principle of ICC’s universal jurisdiction regarding international crimes turned out to be not so universal in reality. The criminal justice mechanism in modern international law is unable to ensure the proper implementation of criminal responsibility against Putin & co. for military aggression against Ukraine. Theoretically, the ICC can gain jurisdiction over this crime only if the Russian Federation loses its membership in the UN Security Council, and if the Peoples Republic of China supports Ukraine. It is not all that difficult to conclude that in the current geopolitical environment and with the actual “impotence” of the UN that option seems unlikely.
There are additional difficulties with the activities of the ICC. Since its inception, not a single high-ranking state official has been brought to justice in cases under investigation. In 2011, the Court started investigating the international crimes of Kenyan President Uhuru Kenyatta, but in December 2014, then former Chief-Prosecutor, Fatou Bensouda, withdrew her allegations given the lack of evidence. In 2014, Ivorian President Laurent Gbagbo, who was accused of crimes against humanity and spent almost 8 years in custody, was eventually acquitted on the same grounds in 2019. In fact, only 8 people were convicted by the ICC during its 20-year activity.
That is why all these political and legal aspects of the ICC’s activity encourage the search for other international legal tools and ways to establish justice and ensure an international trial against Putin & Co. for the crime of aggression committed in Ukraine. Thus, the establishment of a separate international ad hoc criminal tribunal seems the most acceptable option for the global community to pursue justice in the case.
Such an option has been widely discussed among states and within international organizations. Severalcountries, including Estonia, Latvia, Lithuania, and the Czech Republic have signalled their support, while The Netherlands has said it is ready to house such a tribunal in The Hague. In addition, international organizations like the Council of Europe and the European Union have publicly expressed favourable opinions on the creation of an international ad hoc tribunal. Of course, any such court should not interfere with the work of the ICC, which is dealing with the Ukrainian situation byinvestigating war crimes, crimes against humanity and genocide committed in the country.