Legal Foundations Set For Tribunal To Hold Russia Accountable For Ukraine War
(ANALYSIS) On Feb. 4, the Core Group on the Establishment of a Special Tribunal for the Crime of Aggression against Ukraine (the Core Group) laid down the legal foundations for the establishment of a special tribunal for the crime of aggression, taking a major step towards holding Russia accountable for its full-scale invasion of Ukraine.
The Core Group is a group of senior legal experts from around 40 states who have been working with the Ukrainian authorities, the EU Commission, the European External Action Service and the Council of Europe to seek justice for Ukraine in the face of Russia’s aggression.
During the 13th meeting in Brussels, the Core Group also set out the key elements of the “Schuman draft Statute,” the core legal text that will govern the functioning of the special tribunal. The special tribunal will be established by an agreement between the government of Ukraine and the Council of Europe, an international organization with the goal of upholding human rights, democracy and the rule of law in Europe.
The special tribunal will derive its jurisdiction from Ukraine. The Council of Europe will be in charge of the procedure for the adoption of the draft legal instruments necessary for the establishment of the special tribunal and subsequent signature.
Once operational, the special tribunal will have the power to hold to account Russian political and military leaders who are deemed to bear the greatest responsibility for the crime of aggression.
Ukrainian national authorities will be able to refer ongoing domestic investigations and prosecutions related to the crime of aggression to the prosecutor of the special tribunal and transmit relevant information and evidence gathered by the International Centre for the Prosecution of the Crime of Aggression (ICPA).
The ICPA officially started operations at Eurojust, the European Union Agency for Criminal Justice Cooperation, in The Hague, the Netherlands, in July 2023. The ICPA has been securing evidence and facilitating the process of case building at an early stage.
This is an important step toward justice for Russia’s attack on Ukraine. While many of the crimes perpetrated by Putin and his troops are already being investigated and prosecuted, whether by domestic or international tribunals, the crime of aggression is yet to be addressed with comprehensive responses.
While, for example, the International Criminal Court (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. As such, states and experts have been looking into other options to ensure that the mother of all crimes in Ukraine — the crime of aggression — does not escape accountability.
Commenting on the development, President of the European Commission Ursula von der Leyen said: “When Russia chose to roll its tanks over Ukraine’s borders, breaking the UN Charter, it committed one of the gravest violations: the Crime of Aggression. Now, justice is coming. Justice for Ukraine.
“We have laid down the legal foundations for a special tribunal. There can also be no justice without compensation. Russia must be held accountable for its aggression — and it must pay. We made a first step towards a Claims Commission with the participation of the EU. This new body will determine claims recorded in the Register of Damage.”
During the meeting, the European Commission also adopted a recommendation to the council to participate in the formal negotiations to set up an International Claims Commission for Ukraine.
The body is to be responsible for reviewing, assessing and deciding on eligible claims recorded in the Register of Damage and determine the amount of compensation. The Claims Commission will build on the work of the Register of Damage, which serves as a record of damages, loss or injury caused by Russia’s aggression.
Both developments are important steps toward ensuring accountability for the crime of aggression against Ukraine, as well as for upholding the international criminal justice system. Equally, everyone with similar ambitions of aggression must see that impunity for the crime is a failure of the past.
This piece was republished from Forbes with permission.
Dr. Ewelina U. Ochab is a human rights advocate, author and co-founder of the Coalition for Genocide Response. She’s authored the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of genocide and persecution of ethnic and religious minorities around the world. She is on X @EwelinaUO.