Ukrainian law students and young lawyers are reporting for JURIST on developments in and affecting Ukraine. This dispatch is from Kateryna Prychta, a law student at Kyiv-Mohyla Academy.  

After the start of full-scale military attacks by the Russian Federation’s armed forces on the territory of Ukraine, at the beginning of March, Ukraine appealed to the International Court of Justice of the United Nations with a lawsuit against Russia. Later, on the 23^rd of June, the European Court of Human Rights received a completed application form from Ukraine in its case against Russia. These two appeals have one detail in common – both are against Russia as a state. But what about high officials and military officers responsible for the numerous hostilities against the Ukrainian population? Will they come through unscathed?

The solution is simple–the International Criminal Court (ICC). Although neither Ukraine nor the Russian Federation ratified the Rome Statute–the treaty that established the ICC–the Court can still investigate the crimes committed on Ukrainian territory. The reason is that Ukraine has declared its readiness to accept the court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory under article 12(3) of the Statute twice. The first declaration concerned the crimes committed in Ukraine from the 21st of November 2013 to the 22nd of February 2014, while the second declaration extended the court’s jurisdiction on an open-ended basis. Thus, today the ICC already conducts a full investigation of the situation in Ukraine. The first stage, the preliminary study, has already passed.

Yet, the International Criminal Court cannot prosecute the Russian perpetrators of the crime of aggression against Ukraine. Even though the Rome Statute includes the crime of aggression, both states involved are required to ratify the Rome Statute. We cannot hope for ratification by the Russian Federation. However, there is another way.  The Security Council of the United Nations could hand over the case to the ICC for review. For now, this cannot happen because the Russian Federation has the right to veto in the Security Council.  To overcome that obstacle a special tribunal is planned to be established.

What is a special tribunal?

It is a special international judicial organ that deals with individual criminal responsibility. Some special tribunals include the well-known Nuremberg military tribunal, the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the post-World War II International Military Tribunal for the Fast East, among others. Generally, it is a temporary ad hoc international criminal court designed to investigate and prosecute crime(s) committed on a specific territory at a specific time.

There are two models for creating a special tribunal for this issue. The first one is based on the treaty between Ukraine and an international organization, such as the United Nations, the European Union, and the Council of Europe. The International Tribunal for Sierra Leone (involving an agreement with the United Nations) and the Tribunal for Kosovo (involving an agreement with the European Union) used this model. The second model includes agreements between Ukraine and other countries willing to join the tribunal. The Nuremberg Military Tribunal was established this way.

A group of international lawyers, some of whom are Ukrainian, have developed and presented, with the help of the Chatham House, a proposal to create a special tribunal for the crime of aggression against Ukraine. Among those who signed on to the proposal were UK ex-prime ministers Gordon Brown and John Major, Benjamin Ferencz (a former prosecutor of the Nuremberg tribunal), Nicolas Bratza (former president of the European Court of Human Rights), and Volodymyr Butkevych (a Ukrainian judge in ECHR from 1998 to 2008). Additionally, Mykola Gnatovskyi, a current judge in ECHR from Ukraine, actively joined the process of the creation of a special tribunal at its inception.

During an appearance at The Hague, the head of the Ministry of Foreign Affairs of Ukraine named the five most important characteristics of the future special tribunal in Ukraine:

1. The Special Tribunal will be based on the rules in the Rome Statute applied by the International Criminal Court. It will investigate and prosecute the crime of aggression against Ukraine on its territory, as defined by Article 8bis of the Rome Statute.
2. The jurisdiction of the Special Tribunal should extend to all events since February 2014, when the armed aggression of the Russian Federation against Ukraine began.
3. The Special Tribunal shall have jurisdiction over individuals who exercise effective or direct control over  the political or military actions of the state.
4. The official status of the defendant, such as the status of the head of state or of another official of the state, will not exempt such a person from individual criminal responsibility and will not mitigate the punishment.
5. The Special Tribunal will consider only the crime of aggression against Ukraine. It will be established as an ad hoc international special criminal tribunal to solely consider that issue.

Currently, the Parliamentary Assembly of the Council of Europe, the European Parliament, the Parliamentary Assembly of NATO, and the Organization for Security and Co-operation in Europe (OSCE) support the creation of a special tribunal.

On the 5th of September, at the opening of the “Russian War Crimes” exhibition, Andriy Yermak (the head of the Office of the President of Ukraine), Denys Shmyhal (the Prime Minister of Ukraine), and Roberta Metsolathe (the President of the European Parliament) supported and called for the creation of a special tribunal.

The creation of a special tribunal concerning the crime of aggression is a very important step toward justice. The crime of aggression is the most serious of the crimes since the war was initiated. Without this crime being committed, there would not have been any further violations of human rights or other atrocities, like crimes against humanity or war crimes, which are being investigated by the ICC. Crime of aggression is the starting point, and the people responsible need to face the consequences.