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Sat, 28 January 2023

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By Raytheon Technologies

The UK’s support is critical to establish a special tribunal to prosecute Russian crimes of aggression

The UK’s support is critical to establish a special tribunal to prosecute Russian crimes of aggression

Pressure is growing for a special tribunal to be established (Alamy)

4 min read

It has been almost 10 months since Russia, aided by Belarus, launched one of the largest ground invasions in Europe since the Second World War.

Since then, many thousands of Ukrainian civilians have been killed or injured, eight million people have been internally displaced and around eight million have become refugees. Civilian infrastructure and economic assets worth tens of billions have been destroyed or plundered, and irreplaceable cultural monuments reduced to rubble.

The acts of aggression can be traced back not only to the February invasion but to the decision of Russia’s military and political leadership to attack and occupy Crimea in 2014 – and later the Ukrainian regions of Donetsk and Luhansk.

If proven in court, these acts of aggression could constitute what the Nuremberg Trials termed the “supreme international crime”. For it is the crime of aggression from which most other international crimes – war crimes, crimes against humanity and genocide – often flow.

Professor Philippe Sands’ proposal for a special tribunal for the crime of aggression in Ukraine has garnered international support, as well as cross-party support in the United Kingdom.

Whilst momentum has ebbed and flowed, recent events have been game-changing for the campaign. The European Commission publicly backed the tribunal, and France, a previously reluctant voice, came out in support. A draft United Nations General Assembly resolution in support of efforts to ensure accountability for aggression in Ukraine is circulating and has been cautiously welcomed by the United States’ ambassador-at-large for global criminal justice, Beth Van Schaack.

The first lady of Ukraine Olena Zelenska recently addressed Parliament asking the government to take the lead on accountability efforts, drawing parallels with the historic Declaration of St James’s Palace which recorded the will to prosecute those guilty of war crimes during the Second World War. That work built the foundation of the modern international order.

The UK’s position has been ambivalent – neither backing nor hindering the tribunal – despite the international legal prohibition on aggression. Britain’s support could be decisive in diplomatic circles in the UN and in activating the support of the Commonwealth and other states outside Europe. There is currently no international body before which those responsible for aggression in Russia or Belarus can be brought to justice. Russia is not a party to the International Criminal Court (ICC), the only body that has the ability to try serving high officials who are responsible for aggression. A referral to the ICC by the UN Security Council would be vetoed by Russia.

A special tribunal is, therefore, the quickest and surest route to trying high officials responsible for aggression. A lean, bifurcated and highly international model – separating out prosecution work from eventual trials (if perpetrators are apprehended) – could start the work of critical contemporaneous evidence gathering immediately. Such work could deter perpetrators from further aggression. The international nature of the tribunal would reassure the international community of impartiality and overcome complicated issues relating to immunity of serving heads of state and governments.  A tribunal would signal the disregard in which aggressor states are held by the international community. This work would be complementary to the many efforts to ensure accountability for war crimes and crimes against humanity elsewhere and by the ICC.

There is renewed effort to obtain the support of British parliamentarians. It was a cross-party and Allied effort that facilitated the prosecution of Nazi criminals at Nuremberg. Whilst that process had its shortcomings, today much has been learned about best practice in prosecuting high officials.

Ukrainians have at their disposal highly distinguished legal specialists and increasingly the backing of democratic states around the world. Britain with its rich legal and democratic traditions ought to put aside its short-term domestic interests and put at the forefront the rule of law and international justice. Support for the special tribunal will do just that and make war-making that much harder in the future.

Aarif Abraham is a barrister specialising in public international law and Dr Anton Korynevych is ambassador-at-large of the Ukrainian ministry of foreign affairs and envoy for the special tribunal.

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