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Plea For A New Int’l Tribunal For Russia’s Crime Of Aggression

By Olga Kostina

The International Bar Association — the world’s leading organization for international legal practitioners, bar associations and law societies — adopted a resolution in late May condemning Russia’s invasion of Ukraine and urging United Nations member states to support the creation of a special international criminal tribunal to prosecute leaders of Russia for the crime of aggression against Ukraine.

This important step follows calls in recent months from diplomats, human rights activists and world leaders.

Rapes. Murders. Abductions. Torture. All these vile acts committed against Ukrainian citizens are, as Robert F. Kennedy Human Rights President Kerry Kennedy and U.S. Senate Majority Whip Dick Durbin noted in a February op-ed in the Chicago Tribune, “fruit of the poisonous tree of the crime of aggression.

The IBA’s resolution reflects the importance of holding perpetrators of what the 1946 International Military Tribunal called “the supreme international crime” responsible in line with the principles of international law due to a simple truth: Planning and waging a war of aggression is not a product of an abstract entity, but of heinous intent and action of the individuals — in this case, the leadership of the Russian Federation.

Prosecuting those responsible for the unprovoked, unjustified invasion — an act of aggression in its purest form — is crucial for true enforcement of justice and accountability. Leaving the crime unpunished risks global order, peace and security.

In recent months, we’ve seen increasing support for establishing a special tribunal, including from the European Union, the Council of Europe and an increasing number of a core group of states.

A first step was the creation of the International Center for the Prosecution of the Crime of Aggression Against Ukraine, or ICPA, housed by the EU Agency for Criminal Justice Cooperation from July of this year. U.S. Attorney General Merrick Garland already announced in April that the U.S. Department of Justice will send an experienced prosecutor to the ICPA.

The special international tribunal is a legal tool, but it is also a policy tool for Ukraine and the international community to counter blatant actions and atrocities committed by the Kremlin, which have gone unchecked for too long.

The prosecutor of the International Criminal Court is precluded from investigating Russia’s crime of aggression. Drafted in 1998, the court’s Rome Statute established a permanent tribunal at The Hague with jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

The court is already investigating these first three types of crimes in Ukraine based on Ukraine’s consent to the court’s jurisdiction. But distinct jurisdictional requirements for the crime of aggression prevent the court from prosecuting Russian leaders for aggression because Russia is not a state party to the Rome Statute.

The establishment of a special tribunal would be a clear message that international criminal law is prepared to respond to the procedural challenges and eliminate any chance of impunity for Russian leaders.

Most importantly, the resolution expressly stresses the need for the international nature of the special tribunal and its direct endorsement by the United Nations. It echoes the position voiced by Ukraine President Volodymyr Zelenskyy during his May 3 visit to The Hague.

“We all want to see a different Vladimir [Putin] here in The Hague,” Zelenskyy said. “The one who deserves to be sentenced for these criminal actions right here, in the capital of international law.”

International tribunals, while adjudicating international crimes, do not act on behalf of a particular state, but on behalf of the international community as a whole. The leaders of the Russian regime cannot claim immunities before international tribunals.

The international dimension of special tribunals is also pertinent for their legitimacy, since after the Nuremberg Military Tribunals and the International Military Tribunal for the Far East ended in the late 1940s, no court or tribunal has adjudicated the crime of aggression, also known as the crime against peace.

The special tribunal shall be an international judicial organ, provided that it is based on a U.N. General Assembly Resolution triggering bilateral agreement between the United Nations and Ukraine.

The IBA’s resolution acknowledges this by supporting creation of an international tribunal through a U.N. resolution.

Tempting as it might be to view headlines from a distance as the war wages on, Russia’s ongoing war against Ukraine must not be viewed passively. It is time to act, using our collective weight as jurists to push for international justice.

Olga Kostina is a legal fellow at Robert F. Kennedy Human Rights.

Read the original article in Law360 here.