Legal scholars argued on Monday (28 November) that, without the backing of the UN general assembly, it would be legally challenging to set up a tribunal to prosecute Russian aggression against Ukraine.
While the issue of setting up a tribunal will be discussed by EU member states in the next weeks (and possibly by EU leaders in mid-December,) with the EU Commission drawing up different options, legal scholars warn that “current law is not sufficient” to try Russia for the crime of aggression, from which all other war crimes stem.
The International Criminal Court (ICC) has jurisdiction to investigates genocide, war crimes, and crimes against humanity with the consent of the state on whose territory they were allegedly committed.
However, the court cannot investigate or adjudicate the “crime of crimes”, the crime of aggression, unless both aggressor and aggressed states consent.
“All the options are legally problematic, because there are no special tribunals competent to try a crime of aggression,” Olivier Corten, professor of international law at the ULB university told MEPs on the subcommittee for human rights in the European Parliament.
Carl Bildt, the co-chair of the European Council on Foreign Relations (ECFR) and former prime minister of Sweden said there is an “urgent need” to prosecute the war crimes that have been committed as part of Russia’s aggression against Ukraine.
He argued it was “imperative to set up a tribunal on the specific crime of aggression”, which is “the supreme crime under international law”.
He also said that going through the ICC is impossible currently, and suggested that other ways for prosecution could include an agreement between the EU and Ukraine or involve the Council of Europe. Another option would have the UN general assembly ask the secretary general to set up a tribunal.
What makes the “crime of aggression” special, is that it is a so-called leadership crime that can only be committed by those in power, rather than those who carry it out. It means it can target Russian president Vladimir Putin, rather than those who executed his orders.
Vaios Koutroulis, another professor of international law at ULB, warned that immunity of state officials applies in the case of crime of aggression, but an international tribunal could circumvent this problem.
He said to obligate Russia to cooperate, the tribunal needs to be embedded in a binding decision by the UN, which is unlikely with Russia in the security council.
Koutroulis said that the “legitimacy of a special tribunal created only by states would be fragile and that it would be important to include a universal international organisation in the creation of the tribunal”.
He recommended having a UN general assembly resolution — as the security council would not agree because of a Russian veto — and either create a tribunal itself, or defer the issue to the ICC.
However, this would be an extension of the general assembly’s power, which would be unacceptable for EU countries, a senior official from the bloc’s foreign service, Frank Hoffmeister, warned.
He argued the general assembly has already said Russia’s invasion is an aggression.
He said Ukraine is to propose a UN general resolution to ask the general secretary to negotiate with Ukraine the establishment of such a tribunal.
Hoffmeister argued that an interim prosecution office, which would look at the preparation of indictment, without taking a decision how the tribunal would look like, should be set up.
Both Corten and Koutroulis recommended that eventually the ICC’s statute needs to be amended.
New political push?
Centre-right Lithuanian MEP Andrius Kubilius proposed to have another resolution adopted by the European Parliament to emphasise the need to hold perpetrators accountable.
In May, MEPs already adopted a resolution calling for the EU to support setting up a special international tribunal to punish the crime of aggression committed against Ukraine, for which the ICC has no jurisdiction, and hold Russian political leaders and military commanders and their allies to account.
