“No one from Russia and no one from Russia’s leadership is untouchable,” said High Representative Kaja Kallas.
A coalition of 38 countries, including all members of the European Union, announced on Tuesday “major progress” in their joint work to establish a special tribunal to judge the Russian leadership for the crime of aggression committed against Ukraine.
The work among experts and lawyers has so far centred on drafting the legal statute that will underpin the tribunal and determine its jurisdiction. The statute is not yet final but the coalition hopes it could be endorsed before the end of the year.
Details of the text have not been made public.
“So we’re at a point where very substantial progress has been made,” said Michael McGrath, the European Commissioner for Democracy, Justice and the Rule of Law.
“At this stage, we do not envisage any insurmountable obstacles.”
The tribunal will prosecute Russia’s political and military leaders, including President Vladimir Putin, and be established within the framework of the Council of Europe, a human rights organisation. Its Secretary General, Alain Berset, said the institution would be “ready to act” once the mandate is green-lighted at the political level.
“To wait is not an option. We must really act as fast as possible. And we will do the best way to try to finish the work this year,” Berset said, speaking next to McCrath.
“We must be very ambitious. And I think if there’s a will. There is also the possibility to work to achieve this.”
The idea of setting up a tribunal for the crime of aggression has been ardently championed by President Volodymyr Zelenskyy to ensure accountability for the full-scale invasion, which Putin ordered the launch of almost three years ago.
Unlike war crimes, crimes against humanity and genocide, which are applied to the individuals who commit the atrocities, such as military officers and mercenaries, the crime of aggression is a leadership crime that targets the person ultimately in charge of controlling the aggressor state.
The aggression can consist of an invasion, an occupation, an annexation, a blockade of ports or any other assault that involves the use of weapons by a state against another.
According to the International Criminal Court (ICC), the crime of aggression relates to “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
This makes Putin the likeliest defendant in a future trial. That possibility, however, remains an abstract aspiration at best: heads of state enjoy immunity from prosecution under international law and a trial in absentia risks being seen as illegitimate.
Although the ICC established jurisdiction over crimes of aggression under the so-called Kampala Amendments, this only applies to countries and nationals from countries that are party to the Rome Statute. Russia, like the US and China, is not a signatory.
This is why Kyiv and Brussels have explored the option of creating an ad-hoc tribunal that would be empowered to prosecute the specific case of Russia’s war on Ukraine.
ADVERTISEMENT“Without the crime of aggression, there wouldn’t be any war crimes either,” said High Representative Kaja Kallas, who also spoke at Tuesday’s press conference.
“Therefore, it’s extremely important that there is also accountability for the crime of aggression. No one from Russia and no one from Russia’s leadership is untouchable.”
“It is also very important to send a signal that unpunished crimes only encourage further aggression,” she added.
Kallas noted the special tribunal should be established “before the war is over.”
ADVERTISEMENTIryna Mudra, the deputy head of Zelenskyy’s office, who also took part in the press conference, hailed the progress on the legal statute as a “major breakthrough” and said no other national should be a “victim of another imperial conquest.”
The last time this kind of crime was brought to justice was during the Nuremberg trials held after World War II when the charges were known as “crimes against peace.”
