Proposal to establish a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine

Executive summary

1. Eight years ago, in February 2014, Ukraine became the victim of acts of aggression committed by Russia’s President Putin in a blatant denial of the foundational principle of the prohibition of the use of force against political independence and territorial integrity of another State and the right of all peoples to freely determine their political status and freely pursue their economic, social and cultural development. On 24 February 2022, Putin’s Russia launched a large-scale war of aggression against Ukraine.
2. Today war crimes and crimes against humanity committed during Russia’s war against Ukraine are being investigated by Ukraine and a number of other states, as well as by the International Criminal Court (ICC). The referral of the situation in Ukraine made by 43 States and the previously given Ukraine’s consent to the ICC’s jurisdiction over all crimes committed during the armed conflict since 2014 provide a solid basis for the work of the Office of the Prosecutor of the ICC. Ukraine is strongly committed to cooperating with him in his efforts.
3. Whilst international criminal justice has important achievements in addressing genocide, crimes against humanity and war crimes, progress concerning the crime of aggression – or crimes against peace as it was labelled during the Nuremberg Tribunal, has been very limited. Unlike for other core international crimes, the ICC faces objective difficulties in gaining jurisdiction over the crime of aggression – and that for several reasons.
4. Now the time has come to complete the architecture of international criminal justice initiated by the 1942 London Declaration. We need to fill the gap and establish a Special Tribunal which would have a specific jurisdiction over the Crime of Aggression against Ukraine (Special Tribunal). The war of aggression Russia is waging against Ukraine is the biggest war of aggression in Europe since 1945 and the legal response to it shall be appropriate and resemble the response which the international community found to bring perpetrators to responsibility after World War II.
5. The establishment of a Special Tribunal for the Crime of Aggression against Ukraine is necessary, as currently there is no international court or tribunal that could try Russia’s top political and military leadership for committing the crime of aggression against Ukraine. The creation of a Special Tribunal closes this gap.
6. The establishment of a Special Tribunal for the Crime of Aggression against Ukraine will not in any way impede further investigation of the situation in Ukraine by the International Criminal Court. The ICC is investigating the situation in Ukraine for alleged genocide, crimes against humanity and war crimes. The ICC remains a key body of international criminal justice, and Ukraine is actively cooperating with the ICC. For instance, the law amending Ukraine’s Code of Criminal Procedure establishing provisions for Ukraine’s cooperation with the ICC has recently been adopted. However, the ICC cannot investigate and prosecute individuals for the crime of aggression against Ukraine unless both states ratify the Rome Statute and the Kampala Amendments on the crime of aggression or the act of aggression is established in a UN Security Council resolution and the Security Council refers the situation to the ICC. That is why the establishment of the Special Tribunal for the Crime of Aggression against Ukraine will not affect the jurisdiction of the ICC, but will only complement its important work due to the fact that the Special Tribunal will have jurisdiction to investigate and prosecute senior political and military leadership of the Russian Federation for the crime of aggression against Ukraine.

1. International organizations adopt resolutions with support for the establishment of the Special Tribunal. Resolutions of the Parliamentary Assembly of the Council of Europe 2433 (2022) and 2436 (2022), of the European Parliament 2022/2655 (RSP), declaration “Standing with Ukraine” of NATO Parliamentary Assembly, and resolution “The Russian Federation’s war of aggression against Ukraine and its people, and its threat to security across the OSCE region”, adopted at the 29 Annual session of OSCE PA on 2-6 July 2022 are prominent examples of the need to act. Also the Seimas of the Republic of Lithuania adopted a resolution with support for the establishment of the Special Tribunal. The Ukrainian Parliament, Verkhovna Rada of Ukraine in an address to the European Union from 19 June 2022 called on the EU as the regional leader to be involved in preparation and creation of the Special Tribunal for the Crime of Aggression against Ukraine.
2. The Special Tribunal shall be established on the basis of a multilateral treaty between States (which will be open to accession and to making endorsements) or on the basis of agreement with international organization. Agreement between Ukraine and the European regional organization (European Union, Council of Europe) may be the proper basis for the establishment of the Special Tribunal.
3. The establishment of the Special Tribunal will be based on the norms and approaches applied by the International Criminal Court and set out in its Rome Statute. Thus, the Special Tribunal will be positioned as complementing the ICC.
4. The Special Tribunal shall be funded through voluntary contributions. The Parties shall encourage States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the Special Tribunal, including the offer of expert personnel.
5. The Special Tribunal shall investigate and prosecute for the crime of aggression against Ukraine, committed on the territory of Ukraine, in line with the definition of the “crime of aggression” defined in Article 8 bis of the Rome Statute of the ICC. The temporary jurisdiction of the Special Tribunal shall cover all events since February 2014 and preparation for them – the beginning of the armed aggression of the Russian Federation against Ukraine.
6. The Special Tribunal shall have jurisdiction over natural persons. Persons participating in the crime of aggression against Ukraine shall be individually responsible and liable for punishment. These provisions shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State. The official position of a defendant, whether as Head of State or other official of a State, shall not free them from individual criminal responsibility or mitigate punishment.
7. The issue of opening the Interim Prosecutor’s Office, which will be staffed with prosecutors from Ukrainian Prosecutor General’s Office and will be working on procedural management of investigation of the crime of aggression under the Criminal Code of Ukraine, is being considered. Establishment of the Interim Prosecutor’s Office can be a first step on the way to the establishment of the Special Tribunal.