REWI Uni Graz: There have been calls to establish a special international tribunal for the crime of aggression against Ukraine. What is the reason for these calls?
Svitlana Andreichenko: The crime of aggression is a leadership crime. Such a crime is committed by people who hold a high political, civil or military position and can command the armed forces of the respective state and give orders for the use of force. The crime of aggression of the Russian Federation is quite easy to prove because it is an illegal use of force that violates the UN Charter. The creation of the Special international criminal tribunal for the crime of aggression against Ukraine is the only appropriate way for holding Putin, the political and military leadership of the Russian Federation and those who are aiding the war responsible for committing the crime of aggression against Ukraine. Russia’s aggression, which began in 2014 and took a full-scale form after 24 February 2022, fuels all other atrocities committed on the territory of Ukraine and challenges the international order. There would be no war crimes, crimes against humanity, or genocide without aggression.
However, to date, none of the mechanisms of international law and none of the existing international judicial institutions has jurisdiction over the crime of aggression against Ukraine. The creation of the Tribunal will eliminate this legal gap. The crime of aggression against Ukraine must not remain without an appropriate legal response and be unpunished.
The crime of genocide, war crimes, crimes against humanity or the crime of aggression fall within the jurisdiction of the International Criminal Court (ICC). Wouldn’t the ICC be able to adequately address the crimes in question?
In the specific situation of Russian aggression against Ukraine, it is necessary to distinguish the jurisdiction of the ICC regarding war crimes, crimes against humanity or genocide and the ICC’s exercise of jurisdiction over the crime of aggression.
Although Ukraine is not a party to the ICC Statute, it has recognized the jurisdiction of the ICC. The ICC has already launched an investigation into war crimes, crimes against humanity and genocide in Ukraine. However, the IСС has no jurisdiction over the crime of aggression against Ukraine. The ICC's jurisdiction over the crime of aggression applies only to those states that have ratified the Rome Statute together with the Kampala Amendments. Neither the Russian Federation nor Ukraine are parties to the ICC Statute. The ICC can also exercise its jurisdiction over the crime of aggression when the UN Security Council refers such a situation to the Court. Obviously, this option is impossible while Russia is a permanent member of the UN Security Council and abuses the right of veto. Therefore, the narrow jurisdiction of the ICC and the impasse of the UN Security Council should not become a legal obstacle to the responsibility for the “mother of crimes”. Moreover, the Tribunal will not replace the work of the ICC but will be a supplement to the ICC in the context of responsibility for the crime of aggression against Ukraine.
International law knows a principle called universal jurisdiction that gives any state the authority to prosecute authors of war crimes and crimes against humanity. Do you think this existing principle will be of help?
In addition to international courts and the judicial system of Ukraine, to date, 20 states have already initiated an investigation and collection of evidence of Russian core international crimes in Ukraine on the basis of the principle of universal jurisdiction. It should be understood that the collection of evidence of such crimes, their proper analysis, on the basis of which sentences can be passed, is a long way, which will take not months, but several years.
However, the question remains whether states have the right to exercise universal jurisdiction over the crime of aggression. Moreover, even if the national courts have universal jurisdiction over the crime of aggression, all national courts will inevitably face the obstacle of immunity of the highest leadership of the aggressor state (head of state, head of government and minister of foreign affairs). Therefore, the main goal for which a special Tribunal should be created - bringing to responsibility for the crime of aggression against Ukraine the higher political and military leadership of Russia - cannot be achieved within the framework of the national jurisdictions of states.
Which would be the means available under international law to create a special international criminal tribunal?
Various legal constructions are possible for the establishment of the Tribunal. Currently, Ukraine and its partners are discussing three such models. The first model is an agreement between Ukraine and the UN, supported by a resolution of the UN General Assembly. Such a Tribunal will have the quality of an "international" criminal tribunal and will demonstrate a high level of international support. The second model is a multilateral international treaty between states. This approach raises the question of the legitimacy of three or more states to act on behalf of the entire international community, as well as immunity ratione personae. The third option is a so-called “hybrid” tribunal. This is a tribunal based on Ukrainian law within Ukrainian jurisdiction, but with the support of international organizations through an international agreement. This proposed model will raise questions of compliance with the Constitution of Ukraine, which does not allow the creation of extraordinary and special courts, as well as with immunity of high-ranking State officials.
The main thing is that the created Tribunal, on legal grounds, ensures the deprivation of the immunity of the persons who initiated this bloody, predatory war. Otherwise, the creation of a Tribunal will lose its meaning. The search for the most efficient option continues. The key challenge remains the political side of the process of establishing the Tribunal and its support by the international community.
Will such a tribunal be able to get hold of the persons responsible for the crime of aggression? What could be obstacles?
Obviously, the political and military leaders of Russia, guilty of committing the crime of aggression against Ukraine, may remain on Russian territory for the rest of their lives, which will make them physically inaccessible. However, not legally. Taking into account the impossibility (this is for now) of the physical transfer of such persons to the Tribunal, as well as the obvious difficulties of cooperation and enforcement of the decisions of the Tribunal, the trial in absentia should be provided. The hiding of the main criminals should not be an obstacle to the investigation of the case and passing a fair sentence. Proceedings in absentia should be considered as an “intermediate” step to ensure the full responsibility of the guilty persons. An arrest warrant or conviction will have direct legal and political consequences, such as inability to freely travel abroad or complete delegitimization.
You are head of the Department of International Law and Comparative Law at the International Humanitarian University in Odesa. What news have you got from home, what is life like in Odesa at the moment?
Odesa – my hometown near the Black Sea. People in Odesa, like other cities in Ukraine, are adapting to life during the war, no matter how hard it is. You need to live in constant tension due to air alerts, which turn on several times a day. Over the past few months, there has been a critical situation with heat and electricity in Odesa. Electricity was not available for more than 15-18 hours a day, or not available at all for 2-3 days. The constant use of generators by people to keep warm and cook food leads to frequent injuries. The situation has already improved. The danger remains in relation to the explosion of mines, which drift to shore. The entire coast in the Odesa region is mined for defense against possible Russian naval landing forces. My university continues to work in the conditions of martial law, air alerts, in conditions of sharp limitation of funding and energy resources. The task of teaching and learning is realized despite all limitations and difficulties. My divided family, like millions of divided Ukrainian families around the world, is waiting for Ukraine's victory and to go back home.