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A Tribunal for Putin's War Crimes

The world needs to be made aware of the atrocities that Russian President Vladimir Putin has ordered in Ukraine. There are currently three ways under international law that Putin’s actions can be subjected to global scrutiny, and these can be complemented with a new body focused on the specific crime of aggression.

LONDON – Russian President Vladimir Putin’s decision to launch attacks on Ukraine poses a grave challenge to the post-1945 international order. He has sought to replace the rule of law and principles of self-determination for all peoples by the use of force. The world needs to be made aware of the act of aggression he has instigated and the atrocities he has ordered.

There are currently three main ways under international law that Putin’s actions can be subjected to global scrutiny.

Already the Ukrainians have started proceedings before the International Court of Justice (ICJ) in The Hague. Ukraine’s argument – and the basis for the ICJ’s jurisdiction – is that Russia is subjecting Ukraine to a false claim of genocide, and Ukraine should not be subjected to another state’s military operations on its territory based on an abuse of the Genocide Convention. Other states can intervene in the proceedings before the Court, which has convened hearings on Ukraine’s application for provisional measures of protection against Russia.

The European Court of Human Rights (ECHR) in Strasbourg can also investigate Russia’s actions. On February 25 Russia was suspended from its rights of representation in the Committee of Ministers and in the Parliamentary Assembly of the Council of Europe. But Russia remains a member of the Council of Europe and a party to the European Convention on Human Rights and can be held to account under it for its violation of human rights. This can happen if, after exhausting national recourse to justice, a citizen of Ukraine (or any individual victim) appeals to the Court that their rights have been violated or if any of the Council of Europe states (acting alone or collectively) make an inter-state application citing breaches of the Convention. The ECHR has ordered interim measures of protection in a case lodged by Ukraine against Russia.

Following a referral by 39 states of the situation in Ukraine to the International Criminal Court in The Hague, the ICC Prosecutor has now opened an investigation into current events in Ukraine.

The ICC has powers to investigate any acts of genocide, war crimes, and crimes against humanity committed on the territory of Ukraine. But the ICC cannot exercise its jurisdiction with regard to the crime of aggression if the act of aggression is committed by a state that is not party to the Statute of the Court, unless the UN Security Council refers the matter to the Court. Since Russia has not ratified the ICC Statute and would exercise its veto in the Security Council against a referral, the ICC cannot, as things presently stand, investigate crimes of aggression against Ukraine.

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The ICC will be able to hold individuals responsible for the crimes that it deals with where there is specific evidence linking them to particular acts and policies. But it may in certain cases be easier to establish responsibility for the waging of an aggressive war which is so clearly a gross violation of the UN Charter.

So, to complement the actions now underway before the ICC, ICJ, and ECHR we propose the creation of a special tribunal with a limited focus on the crime of aggression, which cannot be addressed by the three other courts. The Special Tribunal for the Punishment of the Crime of Aggression against Ukraine can be set up with speed. During World War II, nations met in London in 1942 to draft a resolution on German war crimes, which led, at the war’s end, to the creation of an International Military Tribunal and the Nuremberg trials.

To help beat back Putin’s heinous attempts to destroy peace in Europe, it is time to create such a Special Tribunal. By doing so we act in solidarity with Ukraine and its people, and signal our resolve that the crime of aggression will not be tolerated, and that we will leave no stone unturned in bringing to an end the terrible events we are now seeing, thereby ensuring that those who have unleashed such horrors are subject to personal accountability under the criminal law, so that justice can be done.

The Special Tribunal should be constituted – on the same principles that guided the Allies in 1942 – to investigate the acts of violence by Russia in Ukraine and whether they constitute a crime of aggression. Countries should agree to grant jurisdiction arising under national criminal codes and general international law to a dedicated criminal tribunal, and confer on such a tribunal jurisdiction to investigate both the perpetrators of the crime of aggression and those who have materially contributed to or shaped the commission of that crime.

We commend to governments the attached draft declaration for the establishment of the Special Tribunal.

DECLARATION ON A SPECIAL TRIBUNAL FOR THE PUNISHMENT OF THE CRIME OF AGGRESSION AGAINST UKRAINE

Whereas the decision by the Russian Federation to launch attacks on Ukraine poses a grave challenge to the post-1945 international order, one premised on the idea of the rule of law and principles of self-determination for all peoples and the prohibition of the use of force;

Whereas sanctions and financial measures, while necessary, cannot address that challenge alone;

Whereas international law has, at least since the end of the Second World War, provided for individual criminal responsibility for those who plan, prepare, initiate or execute wars of aggression;

Whereas the United Nations General Assembly has “deplore[d] in the strongest terms the Russian Federation’s aggression against Ukraine in violation of Article 2, paragraph 4 of the United Nations Charter”;

Whereas the conduct of Russia’s military operations appears to have given rise to the commission of war crimes and crimes against humanity on the territory of Ukraine;

Whereas the International Criminal Court has jurisdiction to investigate and, as appropriate, prosecute war crimes, crimes against humanity and genocide committed on the territory of Ukraine;

Whereas, thirty-nine States Parties to the Statute of the International Criminal Court have referred the situation in Ukraine to the International Criminal Court; and whereas the ICC Prosecutor has decided to open investigations with respect to this situation;

Whereas the International Criminal Court does not at present have jurisdiction to investigate and, as appropriate, prosecute the crime of aggression committed on the territory of Ukraine;

Whereas international solidarity is necessary to uphold the rule of law and the principles of the United Nations Charter, including the prohibition on the use of force, and to protect Ukraine and the fundamental rights of its people, end the violence, and bring the perpetrators to justice;

Recalling the international law prohibiting war crimes, crimes against humanity and the crime of aggression, as well as the Inter-Allied Declaration signed at St James’s Palace, London on January 13, 1942;

Recalling the developments in international criminal law over the past eighty years;

Recalling that the ICC Statute recognises that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”

(1) Support all ongoing investigations into and proceedings arising out of Russia’s military invasion of Ukraine, including those before the International Court of Justice, International Criminal Court and European Court of Human Rights;

(2) Welcome and support the exercise of jurisdiction by the International Criminal Court over any war crimes, crimes against humanity and genocide that may be perpetrated on the territory of Ukraine;

(3) Resolve, in a spirit of international solidarity, to grant jurisdiction arising under national criminal codes and general international law to a dedicated international criminal tribunal that should be established to investigate and prosecute individuals who have committed the crime of aggression in respect of the territory of Ukraine, including those who have materially influenced or shaped the commission of that crime;

(4) Recognise that the exercise of jurisdiction by this tribunal over the crime of aggression shall be complementary to and supportive of the exercise of jurisdiction by the ICC over other international crimes.

This commentary is signed by: Dapo Akande, professor at Oxford and member of UN International Law Commission; David Alton, former MP and member of the House of Lords; David Anderson, Barrister and Cross-Bench Member of House of Lords, former Independent Reviewer of Terrorism Legislation, former monitor at Council of Europe Human Rights Division, Visiting Professor at Centre of European Law at King’s College London; Rosalia Arteago Serrano, former president of Ecuador; Paul Auster, writer; Robert Badinter, former Minister of Justice of France, former President of the Constitutional Council, former member of the Senate, former President of the Court of Conciliation and Arbitration, OSCE; Gordon Bajnai, former prime minister of Hungary; Tom Blackmore, grandson of David Maxwell Fyfe; Laurence Boisson de Chazournes, professor at the University of Geneva; Nicola Bonucci, former Director for Legal Affairs, OECD; Nicolas Bratza, former President of the European Court of Human Rights; Robert Brinkley, former British Ambassador to Ukraine; Olga Butkevych, President of the Ukrainian Association of International Law; Volodymyr Butkevych, former Judge of the European Court of Human Rights; Micheline Calmy-Rey, former President of Switzerland; Fernando Henrique Cardoso, former President of Brazil; Javier Cercas, Writer; Hikmet Cetin, former Minister of Foreign Affairs of Turkey, former Speaker of the Grand National Assembly, former Deputy Prime Minister; Delia Chatoor, Vice-President of Trinidad and Tobago, International Red Cross Society; Laura Chinchilla, former President of Costa Rica; Emil Constantinescu, former President of Romania; Bruno Cotte, former President of the Pre-Trial Chamber at the International Criminal Court; Olivier De Schutter, UN Special Rapporteur on Extreme Poverty and Human Rights, Professor at UCLouvain and Sciences Po; Vincent Delbos, Honorary Magistrate, France; Benjamin Ferencz, former Prosecutor Nuremberg Military Tribunal; Don Ferencz, former Chair of the Global Institute for the Prevention of the Crime of Aggression; Jan Fisher, former Prime Minister of the Czech Republic; Yves Fortier, Arbitrator and International Lawyer, Montreal; Eduardo Frei Ruiz-Tagle, former President of Chile; Stephen Fry, Writer; Hannah R. Gary, US Fulbright Scholar, professor at University of Olso Law PluriCourts Centre and USC Gould School of Law; Timothy Garton Ash, professor of European Studies and Isaiah Berlin Professorial Fellow, St Antony's College, Oxford; Nus Ghani, Conservative MP for Wealden, BEIS Select Committee Member UK, Delegate to NATO Parliamentary Assembly; Audrey Glover, former Director of the Office of Democratic Institutions and Human Rights, OSCE; Mykola Gnatovskyy, Professor of International Law Taras Shevchenko National University of Kyiv, former President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Richard Goldstone, former Chief Prosecutor, International Criminal Tribunal for the former Yugoslavia, former Judge of the Constitutional Court of South Africa; Felipe González, former Prime Minister of Spain; Dalia Grybauskaitė, former President of Lithuania; Steven Haines, Professor of Public International Law, University of Greenwich; Brenda Hale, former President of the UK Supreme Court; Tarja Halonen, former President of Finland; Toomas Hendrik Ilves, former President of Estonia; Serhiy Holovaty, Acting Chairman of the Constitutional Court of Ukraine, President of the Ukrainian Legal Foundation; Devika Hovell, Associate Professor, Department of Law, London School of Economics; Murray Hunt, Director, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, Visiting Professor in Human Rights Law, University of Oxford; Osvaldo Hurtado, former President of Ecuador; Siri Hustvedt, Writer; Yi-Huah Jiang, former Premier of the Republic of China, Taiwan; Claude Jorda, former President of the ICTY and former judge of the International Criminal Court; Ivo Josipovic, former President of Croatia; Mats Karlsson, Vice-President of the World Bank; Helena Kennedy, Director, International Bar Association’s Human Rights Institute, Barrister and Member of the House of Lords; Kerry Kennedy, President of Robert F. Kennedy Human Rights; Catherine Kessedjian, professor emeritus at University Panthéon-Assas Paris II; Pierre Klein, Director of the Centre for International Law, Université Libre de Bruxelles; Zlatko Lagumdzija, former Prime Minister and Deputy Prime Minister of Bosnia and Herzegovina; Patrick Lawrence, Barrister; Philip Leach, Professor of Human Rights Law, Middlesex University; Yves Leterme, former Prime Minister of Belgium; Rianne Letschert, President and Professor of International Law and Victimology, University of Maastricht; Igor Luksic, former Prime Minister and Minister of Foreign Affairs of Montenegro; Margaret Macmillan, professor at the University of Toronto and Oxford; Virginia Mantouvalou, professor at UCL; Moussa Mara, former Prime Minister of Mali; Giorgi Margvelashvili, former President of Georgia; Paul Martin, former Prime Minister of Canada; Carrie McDougall, Senior Lecturer in Law, The University of Melbourne, former Legal Advisor and Assistant Director of International Law, Australian Department of Foreign Affairs and Trade; Rexhep Meidani, former President of Albania; Theodor Meron, professor at the University of Oxford, former President of the International Criminal Tribunal for the Former Yugoslavia and of the UN International Residual Mechanism for Criminal Tribunals; Aline Miron, professor at Anger University; Howard Morrison, former ICC Judge; Joseph Muscat, former Prime Minister of Malta; Egbert Myjer, former Judge of the European Court of Human Rights (elected in respect of the Netherlands); Boldiszar Nagy, professor in the Department of International Relations, Central European University; Angelika Nußberger, professor of Law, University of Cologne, former Vice-President, European Court of Human Rights; Michael O’Boyle, former Registrar, European Court of Human Rights; George Papandreou, former Prime Minister of Greece; Yuri Parkhomenko, Partner, International Litigation and Arbitration Department, Foley Hoag LLP; Zygimantas Pavilionis, Member of the Seima, Lithuania; Mathilde Philip-Gay, professor at the Université Jean Moulin Lyon 3, Co-director of the Center for Constitutional Law; Chip Pitts, Lecturer in Law, Stanford Law School, Professorial Lecturer, Oxford University, Professorial Fellow, SMU Law Institute of the Americas; Rosen Plevneliev, former President of Bulgaria; Jorge Fernando Quiroga, former President of Bolivia; Iveta Radicova, former Prime Minister Slovakia; Shridath Ramphal, former foreign minister and Commonwealth Secretary-General of Guyana; Stephen J. Rapp, Senior Visiting Fellow of Practice, Blavatnik School of Government, former US Ambassador at Large for War-Crimes Issues, former Chief Prosecutor of the Special Court for Sierra Leone; Javaid Rehman, professor of International Human Rights Law, Brunel University; Paul Reichler, Partner, International Litigation and Arbitration Department, Foley Hoag LLP; Petre Roman, former Prime Minister of Romania, former Speaker of the Parliament, former Minister of Foreign Affairs; Helene Ruiz Fabri, Director, Max Planck Institute, Luxembourg; Mikhael Saakashvili, former President of Georgia; Philippe Sands, professor at University College London, Barrister, Matrix Chambers; Ismail Serageldin, former Vice-President of the World Bank; Han Seung-soo, former Prime Minister of South Korea; Yuval Shany, professor at Hebrew University Jerusalem; Anjolie Singh, International Lawyer, Legal Counsel, Delhi; Lyndsey Stonebridge, professor of Humanities and Human Rights, University of Birmingham; Christian Tams, professor of International Law, University of Glasgow; Jean-Marc Thouvenin, Secretary General of the Hague Academy of International Law, Professor, University of Paris-Nanterre; Eka Tkeshelashvili; former Deputy Prime Minister of Georgia, former Minister of Foreign Affairs; Kimberley Trapp, professor at University College London; Elbegdorj Tsakhia, former President of Mongolia; Françoise Tulkens, professor at UCLouvain, former Vice President, European Court of Human Rights; Raimonds Vejonis, former President of Latvia; Guy Verhofstadt, former Prime Minister of Belgium; Vaira Vike-Freiberga, former President of Latvia; Farhana Yamin, professor at the University of Arts, London; Kateryna Yushchenko, former First Lady of Ukraine; Viktor Yushchenko, former President of Ukraine; Dainius Žalimas, former President of the Constitutional Court of Lithuania; Valdis Zatlers, former President of Latvia; and Ernesto Zedillo, former President of Mexico.

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