February 24, 2023 – the anniversary of Russia's full-scale aggression against Ukraine. During this time, many international organizations and parliaments of countries around the world have condemned it and declared the need to punish those responsible.
The Parliamentary Assembly of the Council of Europe (PACE) has adopted 6 resolutions, and the European Parliament has adopted 4.
This is an important signal of support for the idea of holding the military and political leadership of the Russian Federation and Belarus accountable. After all, at present, the crime of aggression seems to be the most obvious for holding those responsible accountable.
However, it is not that simple.
Aggression is one of the four international crimes enshrined in the Rome Statute of the International Criminal Court. In essence, this is a reinterpreted concept of "crimes against peace." Article 8bis of the Rome Statute defines "the crime of aggression" as the planning, preparation, initiation, or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State. This definition can be fully applied to our situation.
Interestingly, when the Rome Statute was adopted in 1998, the participating states could not agree on its definition. Only later, at a special conference in Kampala in 2010, did they agree on the above interpretation. However, the amendment regarding the responsibility for the crime of aggression was ratified by far from all participating countries. At present, out of 123 member states of the International Criminal Court, only 43 have ratified it, including no members of the UN Security Council and only 2 G7 countries: Germany and Italy. It is interesting that the above-mentioned resolution of the European Parliament calls on the EU to take a common position on the crime of aggression and on Bulgaria, Denmark, France, Greece, Hungary, and Romania to adopt and ratify the Kampala Amendments.
Accordingly, the jurisdiction of the International Criminal Court (ICC) extends to the crime of aggression only if all parties in the armed conflict have ratified the Rome Statute. We should understand that since neither Ukraine nor Russia are parties to the Rome Statute, the jurisdiction of the ICC does not extend to the crime of aggression in our case.
Who will be held responsible for aggression?
From the definition of aggression, it follows that those who make decisions at the highest level are responsible for the crime of aggression. Therefore, it is the military-political leadership that should be held accountable. After all, it is very difficult to prove their involvement in other international crimes. And aggression, as the root cause of all subsequent crimes resulting from the unleashed war, is clear evidence of the guilt of the leadership of the aggressor state.
In this context, it is impossible not to mention the immunities of heads of state, which protect them from criminal prosecution in the jurisdictions of foreign states. There are two such immunities: personal (protects during the term in office) and functional (exempts from responsibility for actions taken in office). However, war crimes and aggression are not the function of the head of state, and in this case, immunities do not apply. This is ultimately what Article 27 of the Rome Statute is about.
Interestingly, the resolution of the Parliamentary Assembly of the Council of Europe of January 31, 2023 also emphasizes that the positions of head of state or government, member of the government or parliament, elected representative should in no way exempt the accused person from criminal responsibility for the crime of aggression.
Who will judge for aggression?
It is worth starting with the fact that since 1947, no one has been tried for aggression in the world. Accordingly, the Nuremberg and Tokyo Tribunals remain the only judicial proceedings in which verdicts were handed down for the crime of aggression (at that time – for crimes against peace). In Nuremberg, 12 defendants were tried, including G. Goering and R. Hess, and in Tokyo, 25 out of 28 defendants were convicted. At the same time, since 1947, acts of aggression have taken place in the world, including the war of China against Vietnam in 1979, the Soviet invasion of Afghanistan from 1979 to 1989, Iraq's invasion of Kuwait in 1990, the US invasion of Iraq in 2003, Russia's invasion of Georgia in 2008, and the list is endless. No punishment was imposed on the aggressors. This trend demonstrates gaps in the modern international legal system. And for correction, first of all, the political will of the world's leading states is needed.
The full-scale aggression of Russia against Ukraine has obviously given impetus and a chance for such changes. Currently, several possible ways of punishing those responsible for the crime of aggression against Ukraine are being discussed. Three of them are provided for in the resolution of the PACE of January 31, 2023 and are communicated by the Ukrainian authorities:
- A tribunal based on an agreement between Ukraine and the UN, supported by the General Assembly of the organization.
- So-called "treaty-based tribunal", created by a treaty between interested states.
- A court based on Ukrainian legislation, but with an international element.
Two more possible scenarios are actively discussed in the expert community:
- Expansion of the jurisdiction of the International Criminal Court through amendments to the Rome Statute.
- Tribunal based on an agreement between PACE or the European Parliament and Ukraine (i.e., the European model).
Of course, finding an ideal solution is difficult. This could be achieved by a fully international ad hoc tribunal that would definitely overcome the immunities of military-political leaders and would adhere to the philosophy that the victim cannot judge the criminal, and whose jurisdiction would extend to all international crimes, not just the crime of aggression. However, the scale of potential international crimes and political realities, including the presence of the Russian Federation among the permanent members of the UN Security Council, make this option unrealistic.
So, if we return to the analysis of the models above, I would not consider the so-called "European" model due to a lack of legitimacy. When it comes to international crimes, the justice mechanism should have global, rather than purely regional, support. Therefore, a platform such as the UN General Assembly seems more appropriate.
As for the "treaty-based tribunal", its most famous historical example – Nuremberg – gives us many lessons. In this option, only after a final victory on the battlefield can criminals end up in the dock. But even then, there will be doubts about its objectivity, as the model itself contains many risks and risks creating a taste of a winner's court and revenge in justice.
It is worth noting that the mechanism currently being pursued by the Ukrainian government, namely the tribunal for aggression, is also complex to implement. This is because it involves creating an institution essentially from scratch, which requires significant effort, time, and of course, money. And all this is for the sake of the tribunal for only one of the four types of international crimes. While it is the primary means by which we can punish the military-political leadership of the Russian Federation, will it be sufficient satisfaction to punish only those responsible for making the decision?
In addition, such a path requires legitimacy, namely the support of a majority in the UN General Assembly (it is desirable for at least two-thirds of the votes to be in favor). Because it is the support of the world majority, including the Global South, that will allow us to lay the foundations of a new legal order that is truly based on the principles of international law and create a mechanism for proper justice as an example of preventing and punishing such a crime in the future. That is why not only quantitative, but also continental and diverse support is important.
However, many experts are already questioning whether there will be political will to investigate other cases of aggression in the world, including situations in the same Global South. Obviously, there will not be. According to Kevin Jon Heller, a professor of international law at the University of Amsterdam , without sufficient support from the world, particularly the "Global South," such an ad hoc tribunal on the crime of aggression against Ukraine could pose a threat to other states. For example, Russia itself could join forces with its few allies and create something like a "tribunal" regarding the United States or Britain, thus discrediting the very idea of such a mechanism.
Even if a tribunal on aggression is created, we see how much effort and resources it requires from the world. Undoubtedly, accountability for the crime of aggression is important. However, at the same time, we must remember the tens of thousands of victims of war crimes among Ukrainian citizens, the perpetrators of which also need to be punished. However, neither the ICC nor the national justice system is currently capable of dealing with such a large number of crimes.
So, shouldn't we consolidate all our efforts and resources to ensure justice for all four international crimes in one mechanism? And such a mechanism could be a hybrid justice system. But this is not exactly the type of hybrid model mentioned in the PACE resolution. One of the current options is a model with a fully international judicial chamber and a hybrid element at the level of investigation and procedural guidance. The international element introduced into the national justice system stimulates the development of Ukrainian criminal justice organs through the involvement of experienced specialists and the adoption of necessary changes to legislation. However, this does not absolve us of responsibility for putting our own criminal legislation in order.
Regarding the extension of the jurisdiction of the International Criminal Court (ICC), which involves amending the Rome Statute, this option would also be acceptable. It is worth considering the retroactive punishment for the crime of aggression, as well as its application to states that have not ratified the Rome Statute. In addition, the circle of individuals responsible for the crime of aggression should be expanded adding complicity in this type of crime. Prosecutor of the ICC, Karim Khan, mentioned changes to the Rome Statute regarding the crime of aggression in his speeche at the Rome Statute Assembly on December 5th, but no concrete proposals have been presented publicly yet . If Ukraine ratified the Rome Statute, we could become the driver of these historic processes for international criminal justice.
In any case, whatever mechanism will be chosen, the most important thing is that a clear assessment of Russia's aggression is given within its framework, with the participation of international institutions and as many states as possible around the world. It should be sufficiently legitimate, particularly to ensure the realistic execution of future orders. It is absolutely correct that Ukraine is already thinking about punishing the aggressor and raising this issue on international platforms. The same Nuremberg Tribunal was seriously discussed as early as 1942. So we cannot miss this chance. Thanks to Ukraine's advocacy efforts, we already have unprecedented political support for creating a legal mechanism to punish the aggressor. At the same time, it is important for us to understand that creating a precedent for punishing aggression against Ukraine will provide not only justice for us, but also lay the foundation for the future world order. We cannot afford to make mistakes. Carpe diem.