A special tribunal to investigate the crimes of Russian aggression against Ukraine complements the existing mechanisms of justice, becomes a critical step for the establishment of the rule of law in international relations and ensuring the inevitability of punishment for serious international crimes, said Victoria Zagoruy, attorney at Barristers.
Commenting to Interfax-Ukraine on the legal aspects of the establishment of the special tribunal, she noted that “the tribunal is a temporary international judicial body (ad hoc) established for a specific purpose: to investigate and prosecute those responsible for committing this key crime.” The statute of the special tribunal specifies that the “crime of aggression” means the planning, preparation, initiation or execution by a person in a position to exercise effective control over or direction of the political or military activities of a State of an act of aggression which, by its nature, gravity and scale, constitutes a clear violation of the UN Charter.
“The need to create such a body is due to the so-called jurisdictional gap in international law. The main obstacle to the investigation of the crime of aggression in national courts or the International Criminal Court is the immunity of senior officials (head of state, government, foreign minister), which protects them from foreign jurisdiction during their tenure. The special tribunal, which will act on behalf of the international community and is being created under the auspices of the Council of Europe, is designed to overcome this immunity,” the lawyer emphasized.
Zagoruy noted that “this mechanism will allow to bring to justice the top leaders of the aggressor state, regardless of their current status.”
In addition, the mechanism of the special tribunal provides for direct and indisputable jurisdiction over the crime of aggression, which allows prosecuting the leadership of the Russian Federation, despite the fact that the Russian Federation is not a party to the Rome Statute.
The special tribunal will also have international legal personality, rather than the status of a hybrid or national structure, and will provide for the possibility of in absentia proceedings, which “allows justice to be done even if the accused are not physically present in the courtroom” and means that “amnesty granted to any person under the jurisdiction of the special tribunal is not an obstacle to prosecution.”
“This is extremely important because it prevents national or third-party amnesties from obstructing justice for the crime of aggression. Thus, the establishment of the Special Tribunal is a historic step that clearly establishes accountability for senior officials for the crime of aggression, completely disregarding their personal immunities,” she said.
Commenting on the relationship between the special tribunal and the International Criminal Court (ICC), Zagoruy noted that “these are different but complementary institutions. In particular, the ICC has jurisdiction over four major international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
Ukraine has recognized the ICC’s jurisdiction over crimes against humanity and war crimes committed on its territory by submitting two applications under Article 12(3) of the Rome Statute. This allows the ICC prosecutor to investigate and prosecute these categories of crimes.
At the same time, the ICC’s jurisdiction over the crime of aggression is limited. According to the Kampala Amendments to the Rome Statute, the ICC can only consider this crime if the aggressor state and the victim state are parties to the Rome Statute and have ratified these amendments, and if the case is referred to the ICC by the UN Security Council.
“Since neither Ukraine nor the Russian Federation has ratified the Rome Statute and the amendments on aggression, and the Russian Federation, as a permanent member of the UN Security Council, has a veto, the ICC cannot independently prosecute this particular crime. This creates the very jurisdictional gap that the ad hoc tribunal is intended to fill. It will not duplicate the work of the ICC, but will complement it, providing comprehensive coverage of crimes committed during the aggression,” explained Zagoruy.
She emphasized that the ICC investigates war crimes, crimes against humanity and genocide committed on the territory of Ukraine, and this applies to specific actions: the killing of civilians, torture, deportations, destruction of civilian infrastructure, etc. Both ordinary perpetrators and their commanders may be held responsible for them.
At the same time, the special tribunal will focus exclusively on the crime of aggression, i.e., the very fact of planning, preparing, initiating and waging a war of aggression. The responsibility for this crime lies solely with the highest political and military leadership of the aggressor state.
Zagoruy also noted that the interaction between the Special Tribunal and the ICC will be based on the principle of ne bis in idem (no one can be punished twice for the same act), which is fundamental in international law.
“A person cannot be convicted twice for the same crime. However, the same person may be convicted of different crimes. For example, an official can be convicted by a special tribunal for the crime of aggression (for ordering to start a war), and the same official can be convicted by the ICC for crimes against humanity (for example, for the policy of deporting children) or for war crimes (for orders to indiscriminately shell cities),” the lawyer explained.
She noted that the ad hoc tribunal may enter into agreements or practical arrangements with the ICC to ensure the effective exercise of their respective jurisdictions. In particular, whenever a person subject to an ICC arrest warrant is detained in ICC detention centers, the special tribunal will prioritize the proceedings before the ICC.
“The activities of the courts will be coordinated to ensure comprehensive justice and full accountability for all categories of international crimes. By focusing exclusively on the crime of aggression, the tribunal aims to bring to justice the top leadership of the Russian Federation, those responsible for the decision to start the war. For victims of the war who suffered from specific crimes, such as the destruction of property or illegal detention, the national courts of Ukraine and the ICC remain the mechanisms of justice, which are already actively working to document and investigate these crimes,” Zahoruy emphasized.
