On October 5, in Warsaw, Civil Network OPORA and International Center fir Ukrainian Victory organized the discussion “Establishment of a tribunal on Russian aggression against Ukraine: High level of responsibility as a safeguard against new conflicts in Europe” within the OSCE Human Dimensions Conference. One of the invited speakers was Ambassador-at-large of the Ministry of Foreign Affairs of Ukraine Anton Korynevych. Below are the detailed notes of his speech
Anton Korynevych assured the panelists that Ukraine do pursues and chooses effectively and actively all the possible international courts, tribunals, and judicial mechanisms in order to bring russia and its citizens to responsibility for all the violations of international law committed both by russia as a state, and by russian nationals (individual criminal responsibility for crimes committed). The crime of aggression against Ukraine has been committed since February, 2014, when this war of aggression of the russian federation against our nation started.
“Now we are in all the possible international courts right now. These are International Court of Justice and European Court of Human Rights,” the Ambassoador explained. “We were in the International Tribunal for the law of the sea, in arbitration established under the United Nations Conventions on the Law of the Sea. We recognize the jurisdiction of the International Criminal Court and actively cooperate with it. We have a lot of arbitration tribunals when we talk about private companies, which use the russian federation as a sovereign actor.”
Along with this, as Korynevych mentioned, the international courts existing today are not enought, since the behavior and actions of the Russian Federation do not change. “That is why we consider that in order to establish a comprehensive system, and to secure a comprehensive accountability system for the violations of the international law in and against Ukraine, at least these two international organs shall be established. One is a compensation mechanism, which would deal with compensations to the victims of this russian aggression, and the second is the special Tribunal for the Crime of Aggression,” the diplomat said.
If there wasn't any crime of aggression against Ukraine there wouldn't have been all other mass atrocity crimes. At the same time, the crime of aggression can bring us directly to those who are on top of the tree.
Anton Korynevych named another reason why Ukrainian authorities consider that the crime of aggression shall be there, enforced; and the responsibility for it shall be established and secured. “We we all understand that officially an act of aggression may be established by the resolution of the United Nations Security Council. But we do understand who will veto that resolution. So, that is why this individual track of responsibility for the crime of aggression is important.”
There is another argument connected with international law in general and interests of international community, rather than with Ukrainian situation on the grounds. The crime of aggression is one of the international crimes defined by the Article 8-bis of rhe Rome Statute and was envisaged in the statutes of the international military tribunals in Nuremberg and in Tokyo. “We do feel now that if the crime of aggression in this situation, in the situation of the biggest war of aggression in Europe after 1945, if it is not enforced, crime of aggression may remain a 'paper tiger'. Theoretically put in treaties, but never to be applied in practice. I do believe that for international law that is not the result which shall be made,” Anton Korynevych said.
Why doesn't Ukraine want to use the available tools?
One cannot adjudicate the crime of aggression against Ukraine in national courts of Ukraine due to the issues of personal immunities of heads of state and heads of government from foreign criminal jurisdiction. No country in the world can try a president of a foreign country.
Ukraine cooperates with the International Criminal Court, but it cannot adjudicate crimes of aggression against Ukraine either due to the jurisdictional restrictions of the Rome Statue. “For the ICC to have jurisdiction over the crime of aggression against Ukraine, both States should have ratified the Rome Statute, and Kampala Amendments to it. Or, the situation should be determined an act of aggression by the UN Security Council, and referred to it to the ICC. We understand that in the case of russian federation, we cannot secure one of these two prerequisites,” the Ambassador explained.
That is why Ukraine suggests to establish a Special Tribunal, because there is no mechanism available nowadays to try perpetrators of the crime of aggression against Ukraine.
Korynevych voiced th point of view of Ukrainian authorities that the Special Tribunal for the Crime of Aggression Against Ukraine, should be a Tribunal for this one crime, only for the situation in Ukraine. “We do not intend to invent some universal mechanism or to create some alternative practices. We do think that the ICC has primary responsibility for justice worldwide, when we talk about mass atrocity international crimes. One of our ideas is the establishment of the Special Tribunal which would be a complementary, supplementary one to the ICC, which will not impede or hamper ICC’s jurisdiction and work. But it will complement its important work with the jurisdiction of the crime of aggression,” Anton Korynevych spoke.
Ambassador-at-;large of the Ministry of Foreign Affairs of Ukraine informed that the question of the tribunal is one of the priorities of Ukrainian government. “The President Volodymyr Zelensky recently established a governmental working group, which works with international partners in order to get this task done. In Ukrainian Parliament, Verkhovna Rada of Ukraine, the inter-factional unit, Tribunal for Russian Aggressors, has also been established recently. We try to put this issue as high as it is possible during the United Nations General Assembly, on a high-level segment in New York, this September, engaging both Mr. President Volodymyr Zelensky of Ukraine, and Minister of Foreign Affairs of Ukraine, Dmytro Kuleba. We do have now good support from Parliamentary Assemblies of international organizations, meaning that a lot of resolutions of parliamentary assemblies do include provisions with support to the establishment of the Special Tribunal. In particular, two Resolutions of the Parliamentary Assembly of the Council of Europe; two Resolutions of the European Parliament; Declaration of the Parliamentary Assembly of NATO; a Resolution of Parliamentary Assembly of OSCE, which is also very important and meaningful; Resolutions of Ukrainian Parliament, Verkhovna Rada; Resolution of the Seimas of the Republic of Lithuania. And we are not going to stop. As of now, we have already presented our vision of the Tribunal to different international stakeholders, both to Embassies here in Kyiv, and also in Brussels and Strasbourg, and other capitals.”
According to Anton Korynevych, the main issue which appears is the political will of our international partners and colleagues to participate in the establishment of this Tribunal.
Ukraine suggests that the Special Tribunal shall be based on the provisions of the Rome Statute, as the Rome Statue is really the heritage and legacy of international community. “When we talk about the ratione materiae jurisdiction; when we talk about the jurisdiction ratione personae, over the persons who may have participated in commitment of the crime of aggression against Ukraine.As to the definition of the crime of aggression, we do suggest that the best variant is to take it from the provisions of Article 8 bis of the Rome Statute. Jurisdiction ratione temporis, we consider, should cover all the events which started in February, 2014, and have lasted till our days,” Ambassador-at-large explained.
The only thing Ukraine needs to decide is the best and most effective physical model to establish the Tribunal. Whether it will be a Tribunal based on a matter of multilateral treaty between States, and thus, it will be something like the Nuremberg model. Or, it will be a Tribunal which will be based on agreement between Ukraine and the United Nations, having the prior resolution of the UN General Assembly in support of such a Tribunal. Or, this should be a Tribunal based on an agreement of Ukraine and some regional organizations, in particular, European ones.
“All those models, all those options are now on the table. We are exploring and considering them with our international partners. But we are sure that the crime of aggression against Ukraine should not be left without a proper and legal response. And we do think that the establishment of a Special Tribunal will be the best possible option, the best possible manner, to bring the perpetrators of the crimes of aggression against Ukraine to responsibility. Having this in mind and understanding how important the issue of legitimacy and credibility of such a mechanism will be, it is very important that this Special Tribunal is as international as it may be, with participation of international judges, international prosecutors, with participation of international community, as a whole, and acting on behalf of the international community as a whole,” Anton Korynevych highlighted. “We are looking for support from the international community, in particular from civil society, for this endeavor. And we are very open for coordination and cooperation whith each and every partner who supports the idea of a comprehensive responsibility for the violations of international law in and against Ukraine, and who work on the issue of bringing russia and russian citizens to responsibility for their blatant and flagrant violations of international law."
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