Davor Stier (Croatia, EPP/CD), the Council of Europe Parliamentary Assembly’s rapporteur on the legal and human rights aspects of Russia’s war of aggression against Ukraine, has sent the following message to the 'core group' of 38 countries willing to establish a special tribunal for the crime of aggression committed by the Russian Federation against Ukraine, ahead of their meeting on 16 November 2023 in Berlin:
“Russia’s aggression against Ukraine is an egregious violation of international law and threatens the world order which is based on the prohibition of the use of force laid down in the UN Charter. The crime of aggression, as defined in the Kampala amendments to the Rome Statute of the International Criminal Court (ICC), is the ‘supreme international crime’, in the words of the Nuremberg Tribunal set up to prosecute the leaders of Nazi Germany.
This definition allows the leadership of the aggressor state to be held accountable not only for war crimes and other violations of international humanitarian law committed by its armed forces, but also for the act of waging an unlawful and unjustified war and thus for the loss of life and limb and the destruction and misery inflicted upon the people of the aggressed country by acts of war that do not violate the Geneva Conventions.
I am pleased that many countries are ready to move forward on the creation of a special tribunal for the crime of aggression. This is needed in order to bypass any possible Russian veto on a decision of the UN Security Council to give the ICC jurisdiction to try Russia’s aggression against Ukraine.
To maximise the future tribunal’s international legitimacy and authority, and to minimise potential legal risks linked to issues of the personal and functional immunity of senior officials, the tribunal should be as international as possible – ideally set up by an agreement between the UN and Ukraine based on a majority vote of the UN General Assembly, or by a multilateral treaty between the ‘core group’ countries endorsed by as many international bodies as possible, including the Council of Europe, or even as a strongly internationalised hybrid Ukrainian tribunal, located in The Hague and staffed by Ukrainian and international judges and prosecutors.
The Council of Europe could make a substantial contribution to the future tribunal. It could host a diplomatic conference to negotiate a multilateral treaty establishing the tribunal and make available its legal expertise and experience in negotiating international agreements, with the participation of interested non-member states. After adoption of the treaty, it could act as depositary so that no participating state needs to be singled out for this task. And the Council of Europe could also help to generate synergies with compensation mechanisms, including the newly established Register of Damage, and with the European Court of Human Rights."
The Parliamentary Assembly – which brings together parliamentarians from the 46 nations of the Council of Europe – was the first international body to call for the setting up of such a tribunal, in a 2022 resolution, and recently called on the “core group” to come to an agreement on its legal form as soon as possible.