Potential merits of a special tribunal on Ukraine

Russia’s 2022 invasion of Ukraine and Aggression

Proposals for a Special Tribunal for Ukraine relate directly to the specific crime of aggression, and is separate to international investigations ongoing by the International Criminal Court relating to alleged war crimes and other international crimes that may have been committed following Russia’s invasion of Ukraine.

After Russia invaded Ukraine on 24 February 2022, some states were quick to label this as an act of aggression in their immediate reactions. This included the UK, the US, and the EU.

Russia vetoed a draft Resolution at the UN Security council that would have “deplored in the strongest terms the Russian Federation’s aggression against Ukraine”. Blocked by Russia’s veto, the Security Council called on the UN General Assembly to step in under the Uniting for Peace procedure – the first time the Security Council had used this procedure In 40 years.

On 2 March 2022 the UN General Assembly passed a Resolution titled “Aggression against Ukraine”. Among other statements, it said that the General Assembly “Deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter.”

141 states voted in favour of the Resolution, with 5 voting against, 35 abstentions, and 12 states absent or not voting. Those voting against were Belarus, North Korea, Eritrea, Russia, and Syria. The full voting record is available on the UN Website.

This was the first of a series of General Assembly Resolutions that have been adopted since Russia’s February 2022 invasion, with many of these repeating the recognition of Russia’s acts as aggression.

What is Aggression in international law?

Aggression is an international crime in international law. It is closely related to the prohibition of force in international law under Article 2(4) of the UN Charter, but aggression is a crime with specific criteria.

The definition of aggression was agreed by the UN General Assembly in 1974.37F71F The General Assembly declared in Article 1 of the definition that aggression is the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any other manner inconsistent with the UN Charter.

Article 3 of the definition lists some of the acts that could amount to aggression as including:

• Invasion, occupation, or annexation of another state’s territory.
• Bombardment of another state’s territory.
• Blockades of ports or coasts.
• Attacks by one armed force against another.
• In situations where there is an agreement between two states that provides for the presence of forces within the territory of the receiving state. A use of force in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.
• Allowing a state’s own territory to be used to launch such attacks by another state against a third state.
• The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out armed acts of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Aggression is also recognised as a crime in international law. The UN General Assembly definition, in Article 5 states:

1. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
2. No territorial acquisition or special advantage resulting from aggression is or shall be recognised as lawful

Proposals for a Special Tribunal

Because the ICC does not have jurisdiction over the crime of aggression in Ukraine, a number of politicians and experts signed a combined statement and declaration calling for a “Special Tribunal for the punishment of the crime of aggression against Ukraine”.

Possible forms of a Special Tribunal and legal issues

There are a number of different avenues to establishing an international tribunal to prosecute aggression, and the most suitable and legally-sound avenue to establishing this is the subject of ongoing considerable debate among experts.

Based on the commentary cited in the Debate Pack, some of the main routes being considered to create such a Special Tribunal are outlined below. However, not all of these options are considered legally viable. Each of the options outlined have specific and complex legal obstacles, as well as political and practical issues that may need to be addressed.

• Option 1 – Amending the International Criminal Court’s Rome Statute to allow referrals by the UN General Assembly to prosecute aggression.
  • Commentary suggests this seems unlikely to be workable, given the numbers of ICC member states who still have not submitted to the Court’s jurisdiction over aggression themselves.
• Option 2 – A Ukrainian court established with international support (the hybrid model).
  • This would involve Ukraine having jurisdiction over the crime of aggression, but applying international crimes to prosecute, possibly involving both Ukrainian and international judges and prosecutors from another international organisation.
  • However, there may be restrictions in Ukraine’s constitution on setting up such a hybrid court, depending on its form.
• Option 3 – an international court established by the UN General Assembly, with the agreement of Ukraine.
  • This would be a court set up through an agreement between the United Nations and Ukraine, endorsed by a General Assembly Resolution authorising the UN Secretary-General to set up such a mechanism. This could work similarly to the Special Court for Sierra Leone.
• Option 4 – a treaty between interested states creating a Special Tribunal.
  • This would be an international agreement between like-minded states to prosecute aggression against Ukraine. But there are potential jurisdictional and immunity issues with this model, as well as a risk of the court being seen as politically selective.

Other models are also possible, but not notably considered as yet.

Support for a tribunal

Ukraine itself supports the creation of a Special Tribunal, and has been open to exploring the different legal avenues. Ukraine’s President Zelensky has called for the Tribunal, and the Ukrainian First Lady Olena Zelenska has also recently called for the UK to lead the initiative.

The UK has not yet decided on supporting a Special Tribunal. When announcing its membership of the core group of states seeking to achieve criminal accountability in this situation, the Government indicated it would be willing to explore the hybrid model:

… the details of the proposal will matter. The UK would be willing to explore a ‘hybrid’ tribunal (a specialised court integrated into Ukraine’s national justice system with international elements). Any new tribunal would also need sufficient international support and must not undermine the existing accountability mechanisms.

More recently, the G7 Foreign Ministers’ meeting in Japan in April 2023 indicated a more specific preference to explore the possibility of a hybrid tribunal. In the G7 statement, the Foreign Ministers of the G7 said:

We support exploring the creation of an internationalized tribunal based in Ukraine’s judicial system to prosecute the crime of aggression against Ukraine.

This was agreed by the foreign ministers of Canada, France, Germany, Italy, Japan, the UK and the US, alongside the High Representative of the European Union.

Ukraine’s preference

In December, reports suggested that Ukraine had begun circulating a draft resolution at the United Nations for the General Assembly to adopt, but the International Crisis Group reports that states were hesitant to support that proposal at the time, with some purportedly raising fears that such a move could undermine any future peace talks.

On 4th May 2023, Ukraine’s President Zelenskyy repeated his call for a Special Tribunal to be established in The Hague. In doing so, he seemed hesitant to accept the idea of this tribunal being a ‘hybrid’ court:

But we know that the lasting peace after victory is achieved by nothing else but the strength of values. First of all, it’s the strength of freedom and of law, which must work to the full to ensure justice. Not hybrid promises instead of human rights, but real freedom. Not hybrid impunity and symbolic formalities, but full-scale justice. Not hybrid peace and constant flashes of violence on the frontline, but reliable peace. When one respects values - true freedom, true justice, true peace is respected instead of hybrid forms, but it’s exactly what we need now.