On January 19 in Strasbourg, the European Parliament by a majority of votes adopted a resolution on the creation of a special international tribunal to prosecute the crime of aggression against Ukraine committed by the political and military leadership of russia and belarus.
☝️ The International Tribunal dates back to the Nuremberg Trials, when Nazi leaders were tried for crimes against humanity. In recent history, similar tribunals have been created by the decision of the UN Security Council to prosecute persons guilty of war crimes in the former Yugoslavia and Rwanda.
❓ What is the essence of the decision of the European Parliament and how does it threaten putin and his entourage?
The main goal of the resolution is to find a legally justified way to prosecute the political and military leadership of the russian federation and belarus as a state from whose territory russia is waging war against Ukraine.
What are the problems on the way to the implementation of the resolution of the European Parliament?
🔸 The peculiarity of the application of international criminal justice for crimes of aggression is that the senior leadership of the aggressor country is granted international immunity from foreign criminal jurisdiction. The UN Security Council has no jurisdiction to remove this immunity, because russia is a permanent member and has the right of veto. In order to see putin on the dock, you first need to carry out a procedure to remove his immunity. History knows the exceptions of overcoming such immunities in the work of special tribunals created by the UN Security Council within the framework of Chapter 7 of the UN Charter (this chapter regulates the actions of the UN regarding acts of aggression). In particular, the tribunal regarding Yugoslavia issued an arrest warrant to all UN member states for the then-current President Slobodan Milosevic.
🔸 Another problem is that the International Criminal Court in The Hague (ICC) cannot participate in the tribunal, because it has jurisdiction over war crimes, crimes against humanity and the crime of genocide, but does not have jurisdiction over the crime of aggression as defined in the Rome Statute, as neither Ukraine nor russia has ratified the Rome Statute and its amendments regarding the crime of aggression. After recognizing the annexation of Crimea as an occupation in 2016, russia refused to participate in the ICC. Ukraine partially recognized the jurisdiction of the ICC, which opened the possibility for the Office of the Prosecutor of the ICC in The Hague to begin an investigation into the full-scale russian invasion, however, a new legal mechanism is needed specifically for the crime of aggression.
❓ What does Ukraine and the world community need for the tribunal to work?
First, the most important practical step in the fight against impunity for this crime should be the creation of an international special prosecutor’s office to investigate the crime of aggression against Ukraine. The European Union is already discussing the creation of such a prosecutor’s office with the official Kyiv and Eurojust.
Secondly, the European Parliament and the European Commission emphasize the importance of Ukraine’s ratification of the Rome Statute of the ICC, its amendments, as well as its official accession to the ICC. This will make it possible to eliminate the gaps in international criminal justice and use the evidence of the ICC during the tribunal.
Thirdly, based on the resolution of the European Parliament, Ukraine needs to strengthen and internationalize the national investigation and prosecution for committing the crime of aggression against Ukraine. After all, before that, Ukrainian law enforcement officers could not always properly investigate each of the thousands of recorded war crimes of the russian federation and bring specific perpetrators to justice at the national level (most trials in Ukrainian courts are held in absentia, that is, without the presence of the accused). Ukrainian justice now needs to focus on providing evidence of crimes in accordance with international standards and requirements of the International Criminal Court, which can be used in the future special tribunal.
And most importantly, the tribunal should become part of the entire system of international justice with sufficient powers to sentence putin, lukashenko and all the military and political leaders of these countries.
❗️ Although the document is not formally binding and has the status of a call or recommendation, its vote will be a clear signal to russian society that the aggression against Ukraine will not go unnoticed by international justice, and putin and the leadership of the russian federation and the republic of belarus will bear personal responsibility. In the future, this will lead to a complete change of the regime in russia and the conviction of those who committed war crimes in Ukraine already within the internal russian judicial system. Today, the resolution called on the EU and its partners to determine legal ways of using the frozen assets of the Central Bank of the russian federation as reparations to Ukraine for russia’s violation of international law. In addition, the European Parliament supported the decision of the UN General Assembly regarding the creation of an International Register by the UN member states, which will become the basis of a compensation mechanism for compensating all affected Ukrainians.
