The UK must support a special international tribunal to try Putin for the war in Ukraine
On 24 February 2022, Russia together with Belarus began an unjustified, wanton and destructive attack on Ukraine.
That attack had precedent; Russia had already illegally annexed Crimea and the city of Sevastopol in 2014 and later the Ukrainian regions of Donetsk and Luhansk.
Whilst the scale, nature and extent of Russia’s latest attack and its devastating human impact has surprised some in Western Europe, for many in the region, including Lithuania, the risk was perennial and remains existential.
Lithuania has been unlawfully occupied by Russia (then the Soviet Union) twice before in the past century. Its second occupation lasted almost 50 years. This historical memory and the recurrent risk of attack has propelled Lithuania, a NATO and EU member, to take a lead in bringing those responsible for international crimes being committed in Ukraine to justice. It was the first to refer the situation in Ukraine to the International Criminal Court (ICC) and its minister of justice helped start discussions at EU level about the possibility of a special tribunal for the international crime of aggression. For this reason, Lithuania convened the first international conference on the issue of aggression on 6 May 2022, with participants urging the international community to take prompt action.
There is no international body before which those responsible in Russia or Belarus can be brought
That call emanating, in particular, from the Ukrainian foreign minister, Dmytro Kuleba, former prime minster, Gordon Brown, and Philippe Sands QC (who began the initiative for a special tribunal) has culminated in the publication of the Vilnius Communiqué, on behalf of prominent lawyers and politicians.
The Communiqué reiterates that Russia’s use of force against sovereign Ukraine constitutes one or more illegal acts of aggression, contrary to binding international law; having not been authorised by the UN Security Council (UNSC) and it not being an act of self-defence. As aggression is considered a leadership crime, those exercising control over, or directing, political or military action of the acts, in the words of the 1946 Nuremberg Tribunal, are committing the “supreme international crime”, as this crime often facilitates the commission of other crimes, such as war crimes and crimes against humanity (as Russia allegedly has).
As aggression against Ukraine continues, there is no international body before which those responsible in Russia or Belarus can be brought. Russia is not a party to the International Criminal Court (ICC), which is the only body that could try serving high officials who are responsible for the international crime of aggression. A referral to the ICC by the UNSC would be vetoed by Russia. It is for this reason that the Vilnius Communiqué reinforces the need to fill the vacuum that exists, by creating a special tribunal, in enforcing binding international law relating to aggression (and be complementary to, rather than in competition with, the ICC).
Whilst countries like Lithuania and other EU countries are advancing this work, Britain is yet to throw its much-needed weight behind the special tribunal. Britain could help facilitate an agreement to bring the tribunal to fruition: an agreement between Ukraine and willing states and/or Ukraine and the United Nations/European Union/Council of Europe to create the special tribunal. Britain can provide the (very minimal) funding needed for set-up and it can join other efforts to ensure evidence is properly preserved and assessed.
Already three international/regional organisations have passed resolutions condemning the aggression; and both the EU and the Council of Europe parliaments have passed resolutions in the past two weeks asking for the tribunal to be set up. Two former prime ministers, Sir John Major and Gordon Brown backed the London Declaration within a week following the aggression, in support of the special tribunal together with over 150 former world leaders, diplomats or eminent lawyers. British Foreign Secretary, Liz Truss has never opposed the idea of the tribunal and last week confirmed that she is considering giving her support to her Ukrainian counterpart.
Critics of the special tribunal argue that it will be costly or unjustly selective (given past crimes of aggression elsewhere went unpunished). Yet, as the panellists in Vilnius, including Ukraine’s advisor to the foreign minister, noted the new tribunal need only begin by creating a streamlined interim prosecution office until perpetrators are apprehended, and its annual cost would be no more than the cost of a Russian tank. With respect to selectivity, this conflict is different because it is the Ukrainian government and Ukrainian victims/survivors who are calling for a tribunal, not some imposed model from outside. Their agency ought to be respected.
The rationale for a special tribunal, as a complementary endeavour, is clear as day. It would begin evidence gathering; it could deter perpetrators from continuing aggression; it would depoliticise the investigation of perpetrators through internationalisation; it would overcome difficult issues relating to immunity of serving officials; and it would, fundamentally, signal that the crime of aggression can no longer be tolerated.
Vilnius has seized the initiative, but London needs to overcome any hesitation to put at the forefront the rule of law and international justice, both at home and abroad. Collective action by states, particularly in Europe, will make sure responsible leaders, officials and private actors, committing crimes of aggression in Ukraine, know that accountability and justice will prevail.
A small step in creating an interim office as a matter of urgency will ensure that the special tribunal is an inevitability rather than a matter of political expediency, for the sake of the survivors and victims in Ukraine.
Aarif Abraham is a Barrister specialising in public international law and international criminal law at Garden Court North Chambers.
Dr Gabija Grigaitė-Daugirdė is the vice-minister of justice of the Republic of Lithuania, and lecturer in public international law at Vilnius University.
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