Ukrainian society is consolidated around a common goal – victory in the war, and one of the components of victory is the just punishment of the aggressor. Polls show that the vast majority of Ukrainians support the idea of setting up a special international tribunal to bring Russian leaders and perpetrators of war crimes to justice. The war started by Russia is unjust from the point of view of international law and violates the provisions of the UN Charter. At the same time, Article 51 of the UN Charter allows Ukraine to exercise its right to self-defense against an aggressor.
The creation of an international tribunal for the crime of Russian aggression against Ukraine is one of the components of the peace formula of Ukrainian President Volodymyr Zelensky. This peace plan was supported by leading international organizations, its provisions became the basis of the UN General Assembly resolution of February 23, 2023.
If international law fails to create effective mechanisms for punishing unprovoked aggression, this will be the end of international law, and this is increasingly being discussed in the leading legal platforms of the world. Achieving such an ambitious goal requires a long and painstaking work of specialists. On September 22, 2022, by his decree, the President created a working group to study the issue of creating a special international tribunal regarding the crime of aggression against Ukraine. The group prepared the necessary materials for the creation of the tribunal, including several versions of constituent documents for its formation, rules of work and jurisdiction. Tribunals in Nuremberg (against Nazi Germany), the Tokyo Tribunal (against militaristic Japan), and the Tribunal for the former Yugoslavia became examples. Consultations were held with international experts who were directly involved in the work of such tribunals. All developments have been handed over to our foreign partners, a constant dialogue is being held on the possibility of forming an international tribunal.
The International Criminal Court in The Hague also collects evidence of Russian war crimes, but this court has limitations – it cannot judge the president, prime minister and foreign minister. Therefore, the international criminal court will consider individual war crimes of the Russian military, but not the top leaders of the Russian Federation. At the end of February 2023, the Chief Prosecutor of the International Criminal Court, Karim Khan, visited Ukraine, met with the President of Ukraine and senior officials. Working coordination of Ukrainian law enforcement agencies with ICC specialists has been established.
The creation of a special international tribunal can circumvent the problem of immunity of senior officials. The correctness of this approach was repeatedly confirmed to me by the CEO of the International Bar Association, Mark Ellis. The doctor is known for having served as a legal adviser to the Independent International Commission on Kosovo and was appointed as an OSCE consultant on the establishment of the Serbian War Crimes Tribunal. We agree that the decision of the tribunal can be taken by the UN or a group of countries. So, the Nuremberg Tribunal was formed by 4 states, the Tokyo – by 11 states. As for the UN decision, the issue of creating a tribunal can be blocked by a vote in the Security Council, but it can be supported by a majority of votes at a meeting of the General Assembly.
The subject of consideration of the tribunal should be the crime of aggression, and the defendants – 19 members of the Security Council of the Russian Federation. The cases of those military and civilian leaders who have the greatest personal guilt for starting a war and committing war crimes and acts of state terrorism may also be considered.
Propagandists who are guilty of inciting hatred and inciting war crimes must also be punished. In Nuremberg, one of the accused was Julius Streicher, editor of the Sturmovik newspaper. He was executed by decision of the tribunal. In The Hague, Felicien Kabuga, the owner of the Radio of a Thousand Hills and the organizer of the genocide, is being tried within the framework of the International Criminal Tribunal for Rwanda.
Now some representatives of European countries are proposing to create a “hybrid tribunal” – this is when the case will be considered by a tribunal on the basis of a Ukrainian court, but with the involvement of foreign judges. However, we are fighting for a larger tribunal. The decision on its creation should be taken by the UN General Assembly, the Council of the European Union, or several dozen countries. Then the sentences of such a tribunal and its warrants will have much more weight.
On January 19, 2023, the European Parliament adopted a resolution stating: “The European Union and its members should seek the establishment of a special international tribunal to prosecute the crime of aggression against Ukraine committed by the political and military leadership of Russia.” 472 votes were cast in favor, 19 against, and 33 abstained.
On January 26, 2023, the Parliamentary Assembly of the Council of Europe adopted a resolution in support of the creation of a special international tribunal. More than ten countries have already supported the idea of creating a tribunal. Among them: Lithuania, Poland, Estonia, Greece, the Netherlands, the Czech Republic, Latvia. In total, Ukraine is now working with 25 countries that are consulting and coordinating their activities to develop a model tribunal for Russia.
To advance the Ukrainian plan to punish the aggressor and create an influential international tribunal, it is necessary to consolidate the actions of all those concerned – Ukrainian diplomats, international partners, parliamentary delegations and civil society. The voting of respected international institutions is a consequence of our information campaigns and diplomatic negotiations. The crime of aggression must be punished and this should be a lesson to any other potential aggressors around the world.
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