Celeste Kmiotek – Atlantic Council
After Russia’s invasion of Ukraine and subsequent atrocities this year, the world quickly rallied to find ways to hold perpetrators criminally accountable. Several distinct paths crystallized, including domestic war-crimes trials in Ukraine; trials in states with universal-jurisdiction provisions, allowing for prosecutions of certain overseas offenses, such as war crimes, including with the help of a joint investigation team; and an investigation at the International Criminal Court (ICC).
However, Ukrainian President Volodymyr Zelenskyy has called for an additional route: a special tribunal focused exclusively on the crime of aggression against Ukraine. The crime of aggression is, in short, the use of armed force to invade a sovereign state—so while war crimes refer to how war is fought, aggression covers how war starts. The proposed tribunal has drawn considerable debate and discussion, but Ukraine has garnered support among partner states and international bodies. The launch of such a tribunal would undeniably be significant, allowing a venue for the first international criminal trial on aggression since the aftermath of World War II. However, its creation would leave several open questions on the future of accountability for aggression—both in the context of Ukraine and for future and past incidents—which must also be addressed.
Bridging a jurisdictional gap
Criminal trials are generally limited to domestic courts, the ICC, or any relevant international tribunals. While several countries have universal-jurisdiction provisions for aggression, practitioners have raised legal and pragmatic concerns over whether the provisions can effectively be used in practice, for example noting the potential political ramifications and difficulties of accessing evidence containing classified information. Furthermore, aggression is considered a leadership crime, meaning that, for example according to the ICC’s Rome Statute, only those in a position to “exercise control over or to direct the political or military action of a State” are held liable. These leaders are usually in positions and roles that would benefit from immunities and so are shielded from prosecution.
These immunities are broadly considered not applicable at certain international criminal courts—which, for aggression, leaves only the ICC. However, the ICC can only try the crime of aggression with a referral from the United Nations (UN) Security Council (on which Russia holds veto power) or when both the aggressor and the victim state have ratified the Kampala Amendments, which added the crime of aggression to the Rome Statute—and neither Russia nor Ukraine has done so. Without any other viable options, the proposed tribunal creates a tailored solution.
Read more: atlanticcouncil.org