Is There Progress In Addressing Putin’s Crime Of Aggression?

The last weeks have seen several domestic criminal prosecutions of Russian soldiers accused of war crimes. Further trials are anticipated as the Office of the Prosecutor in Ukraine collects evidence of war crimes. Similarly, investigations of Putin’s war crimes are conducted in Estonia, Lithuania, Germany, Poland, Slovakia and Sweden, with a view of domestic prosecutions. On the international level, the International Criminal Court (ICC) continues its work investigating Putin’s crimes in Ukraine. However, what is the progress in addressing Putin’s crime of aggression?

Currently, the crime of aggression is not subject to any international investigations or proceedings. While the ICC has powers to investigate any acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine, it cannot exercise its jurisdiction with regard to the crime of aggression against Ukraine. This is as act of aggression is committed by Russia, a state that is not party to the Rome Statute.

Acts of aggression are considered to be the most serious form of the illegal use of force. Indeed, as the judgment of the Nuremberg International Military Tribunal clearly indicated: “war is essentially an evil thing. Its consequences are not confined to the belligerent States alone but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” As such, the crime of aggression cannot be left unpunished.

In order for the ICC to be able to engage on Putin’s crime of aggression, one option would be for the U.N. Security Council to refer the situation to the ICC. However, such an attempt would have been blocked by Russia, a permanent member of the U.N. Security Council with a veto right.

On March 4, 2022, experts from all over the world, including Rt. Hon Gordon Brown, former Prime Minister of the United Kingdom, world renowned barristers Baroness Helena Kennedy QC and Professor Philippe Sands QC, and Benjamin Ferencz, former Prosecutor at the Nuremberg Military Tribunal, issued a joint statement calling for the creation of a special tribunal for the punishment of the crime of aggressions against Ukraine. This call received significant support from governments, politicians, and legal experts around the world.

On April 28, 2022, the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution proposing the establishment of an ad-hoc international tribunal investigate and prosecute the crimes of Russia’s military aggression in Ukraine. 115 lawmakers voted for the move, with none opposing the proposal.

On May 6, 2022, the Ministry of Justice of the Republic of Lithuania and the Law and Democracy Centre, under the patronage of the Prime Minister of the Republic of Lithuania, hold an international conference on “Criminal Responsibility for the Crime of Aggression against Ukraine: What Are Options for Justice?” to further the discussions about the ad-hoc tribunal. The participants of the conference examined the possibility of states, acting through the United Nations or a regional organization, or by a special multilateral treaty between like-minded states, establishing such an ad-hoc tribunal.

On May 19, 2022, European Parliament, the European Union’s only directly-elected institution, adopted a resolution supporting setting up a special international tribunal to punish the crime of aggression committed against Ukraine. Among others, the resolution calls upon the European Union to provide all the necessary human and budgetary resources and administrative, investigative and logistical support needed to establish the tribunal.

The ad-hoc tribunal for the crime of aggression is a crucial step to ensure that no stone is left unturned in the pursuit of justice for Putin’s war. Such a tribunal will add to the international and national legal efforts undertaken to investigate and prosecute individuals responsible for war crimes and crimes against humanity committed in Ukraine. It will also send a message to other dictators that such a crime of aggression will not be tolerated but consequences will follow.