Background
On 24 February 2022, Russia’s president Vladimir Putin announced the beginning of the so-called Special Military Operation. Shortly after, Russian troops invaded Ukraine, including from the territory of Belarus, with the alleged aim of “demilitarising” and “denazifying” the country. From the very beginning, the conflict has been characterised by massive Russian violations of international humanitarian law, including attacks against the civilian population, indiscriminate attacks, the destruction of civilian objects, the murder and ill-treatment of civilians in Russian-occupied territories, and the deportation of thousands of Ukrainian civilians into Russia. According to conservative numbers, over 8,900 people have been killed and 15,400 injured since the beginning of the full-scale invasion; over 8 million people were forced to flee the country.
While Russia’s war in Ukraine began in 2014, the 2022 full-scale invasion constitutes a new, premeditated attack of unprecedented brutality and an act of aggression under the United Nations (UN) Charter. A resolution condemning Russia’s aggression against Ukraine – as well as the Republic of Belarus’ unlawful involvement in Russia’s aggression – was overwhelmingly adopted by the UN General Assembly on 2 March 2022.
It was against this backdrop that international lawyer Philippe Sands proposed, four days after Russia’s 2022 invasion of Ukraine, the creation of a special tribunal for the crime of aggression. The subsequent debates about the special tribunal have been conducted primarily on the academic and diplomatic levels, focusing mainly on legal and political questions. FIDH notes with concern that these debates and consultations have largely sidelined the most significant stakeholders – Ukrainian civil society organisations and affected communities.
Accountability for the Crime of Aggression
International treaties and other instruments aiming to outlaw war – including the UN’s Charter and UN General Assembly Resolution 3314 (XXIX) – were traditionally addressed to States. It was only after the Second World War that the crime of aggression was recognised as a crime entailing individual criminal responsibility by the Nuremberg and Tokyo Tribunals. Today, the crime of aggression is enshrined in Article 8 bis of the Rome Statute of the International Criminal Court (ICC), alongside the other three core crimes, namely genocide, crimes against humanity and war crimes.
On 2 March 2022, the ICC opened an investigation into the Situation in Ukraine. Yet, the Court has no jurisdiction over the Russian aggression due to the special jurisdictional regime: under Article 15 bis (5) of the Rome Statute, the ICC cannot exercise its jurisdiction over the crime of aggression if the crime has been committed on the territory or by nationals of a State that is not a State Party to the Rome Statute. As neither Russia nor Ukraine has ratified the Rome Statute (Ukraine having accepted the ICC’s jurisdiction under Article 12(3)), the ICC lacks jurisdiction over the crime of aggression in this situation. The only existing option in the Rome Statute framework– a referral of the situation by the UN Security Council under Article 15 ter of the Statute – is, in practice, impossible due to Russia’s veto right in the Council. Thus, no international mechanism currently has jurisdiction to investigate, prosecute, or punish members of the Russian and Belarusian leadership for the alleged crime of aggression.
Following Russia’s full-scale invasion, the proposal for the creation of a special tribunal was quickly endorsed and promoted by the Ukrainian government, and has since been supported by the European Parliament, the European Council, the Parliamentary Assembly of the Council of Europe, and NATO. However, it raised many concerns amongst NGOs, States (in particular non-Western) and academics.
In the ongoing legal debate, the following three main models have been put forward:
– 1) The establishment of an ad hoc international tribunal, created through an agreement between Ukraine and the UN on behalf of the UN General Assembly, or between Ukraine and another international organisation, such as the Council of Europe. This proposal seems to have replaced the initial suggestion to create a Nuremberg-style tribunal based on a treaty exclusively between States. Decisions of an ad hoc international tribunal would have symbolic and authoritative weight, and it would arguably overcome both personal and functional immunities that shield serving heads of state and diplomats from domestic prosecution. However, this model has also been criticised for lacking legitimacy and support from non-Western States, promoting selective justice and weakening the authority of the ICC.
– 2) The creation of a hybrid tribunal, supported by the UN General Assembly, integrated into the legal system of Ukraine, and operating on the basis of Ukrainian domestic law and international law. This model has so far been favoured by several Western States and the USA, would be easier to establish than a purely international tribunal and could have many benefits in terms of strengthening of the Ukrainian justice system and outreach to victims and affected communities. However, the Ukrainian Constitution explicitly prohibits the creation of “extraordinary and special courts” and cannot be amended as long as martial law is imposed. While a hybrid tribunal might overcome the question of immunities and have long-term benefits for Ukraine justice system and society, it could face other practical problems, and may be perceived as not being independent, even with an internationalised component.
– 3) An amendment of the Rome Statute, to apply the ICC ordinary jurisdictional regime under Article 12 of the Rome Statute to the crime of aggression and/or to allow referrals to the ICC by the UN General Assembly, in order for the Court to be able to prosecute the Russian leadership for the crime of aggression. While this model represents a universal and systematic answer to impunity, in practice, a qualified majority of seven eighths would be required to amend the Statute. Furthermore, even if such an amendment was adopted, it remains questionable whether the ICC could exercise its jurisdiction over the crime of aggression retroactively.
FIDH strongly emphasises that the creation of any new justice mechanism must be informed by meaningful consultations with civil society and affected communities, and serve the needs and interests of victims and survivors.
FIDH Consultations with Ukrainian Civil Society Organisations
To better understand the positions of Ukrainian civil society organisations, and to offer a confidential platform to exchange with colleagues and intervening international legal experts, FIDH organised consultations on the creation of a special tribunal for the crime of aggression. Representatives of over 15 Ukrainian civil society organisations, belonging to both large human rights coalitions in Ukraine, namely the 5AM and the Tribunal for Putin coalitions, met virtually on 30 March 2023. The interactive dialogue was held under Chatham House Rules.
The discussion was divided into two thematic sessions: the first session focused on the assessment of victims’ justice needs, and during the second session, the participants discussed the benefits, drawbacks, and challenges of the three proposed “tribunal models”.
Overall, the consultations showed that there is no clear consensus among the participants and experts as to which model would better address victims’ justice needs. Some NGO representatives supported the expert view that the hybrid model would be “easier” and faster to establish and that it could take advantage of Ukraine’s existing judicial system and infrastructure. Such a tribunal could also be geographically closer to the victims, and thus enhance the court’s outreach to victim communities, and be viewed as more legitimate by victims. It is to be noted that participants supported that this hybrid tribunal have a broader subject matter jurisdiction: it should not only have jurisdiction over the crime of aggression, but also over other international crimes, such as crimes against humanity, war crimes and genocide, some of which are still not criminalised under Ukrainian law. In contrast, other experts and participants called for the creation of a purely international tribunal, supported by the UN and other international organisations and States, especially because of the strong symbolic — “Nuremberg” — effect, the still significant lack of trust of the Ukrainian population in the Ukrainian justice system, the legal benefits as far as the question of immunities is concerned, and the obstacles stemming from the explicit prohibition of special courts enshrined in the Ukrainian Constitution.
While there was no clear preference as to which model would better address the victims’ needs, participants agreed generally that the involvement of the UN, especially the UN General Assembly, is desirable and would grant the tribunal the required legitimacy. Additionally, the participants pointed out that a tribunal for the crime of aggression would need to adopt a victim-centred approach. This must include meaningful and sustainable engagement with victims, avoiding or minimsing the risk of re-traumatisation, and providing support, access to proceedings and protection for the victims during the process. Furthermore, the participants reaffirmed the importance of reparations for tangible and intangible damage caused and the harm suffered by victims, and stressed the need to set up a transparent, accessible, and victim-oriented reparation mechanism.
Since international criminal proceedings can take decades, there is an urgent need to strengthen and support the Ukrainian judicial system, which is currently dealing with over 75,000 cases of war crimes and will most likely handle most of the war crime prosecutions. To better meet the victims’ justice needs, according to one of the experts, it is important to enhance the reform of Ukraine’s domestic criminal laws which currently do not grant sufficient confidentiality to victims, to strengthen the victim and witness protection system, and to provide technical support to investigating authorities. Overall, the participants agreed that a holistic approach must be adopted to meet the victims’ justice needs.
Conclusion and recommendations
While the establishment of a tribunal for the crime of aggression that could prosecute members of the Russian and Belarusian leadership would set a historical precedent in the fight against impunity, FIDH strongly believes that care must be taken to ensure that the tribunal adopts a victim-centred approach, upholding the victims’ right to truth, justice, and reparations.
In light of the above, FIDH:
– 1) Strongly supports the establishment of a criminal tribunal competent to investigate and prosecute members of the Russian and Belarusian leadership for the crime of aggression committed against Ukraine, regardless of their official capacity;
– 2) Stresses the importance of the involvement of the UN, in particular, of the UN General Assembly in such an accountability mechanism;
– 3) Highlights
• the need to ensure a transparent, inclusive, and victim-centred approach in all stages of the establishment and the proceedings at the tribunal, in particular through direct consultations with Ukrainian civil society, especially those organisations representing victims and survivors; and
• the need to ensure a transparent and accessible reparation mechanism for victims and survivors;
– 4) Underlines the need to ensure that the tribunal cooperates with the newly created International Centre for the Prosecution of the Crime of Aggression Against Ukraine (ICPA) and complements ICC investigations, and shall not undermine the ICC’s mandate to investigate alleged cases of war crimes, crimes against humanity, and genocide;
– 5) Calls upon all States to
• continue to support the strengthening of the Ukrainian justice system;
• support the creation of a criminal tribunal for the crime of aggression for Ukraine; and to
• promote and strongly support the creation of equally robust mechanisms competent to prosecute perpetrators of the crime of aggression, regardless of where the crime has been committed, especially through the ratification of the Rome Statute and the 2010 amendments thereto; and
– 6) Calls upon all States Parties to the Rome Statute to amend Article 15 bis, to expand the ICC’s jurisdictional regime so it effectively applies to future cases of aggression.