ICC Convenes ‘Special Tribunal’ on Russian ‘Crime of Aggression’ Against Ukraine

April 23 ------ The International Criminal Court (ICC) in The Hague has reportedly established a special tribunal to address Moscow’s crime of aggression against Ukraine a specific category of international crime of one state illegally waging war against another. Deutsche Welle (DW), citing an informed source, said the draft for the tribunal is ready and awaiting approval.  

The UK first floated the idea of prosecuting Russian crimes of aggression in 2022, to which 38 countries signed up in 2023. This was supported by Ukraine, with former US President Joe Biden’s administration providing funding and assisting in preparations. However, President Donald Trump withdrew the US participation from the process in March after his re-election. 

The instrument establishing the tribunal is based on the model used to prosecute the Nazi regime at Nuremberg, with evidence collected by the Hague’s International Centre for the Prosecution of the Crime of Aggression (ICPA) and material provided by Kyiv. Currently, the exact terms of reference and the wording of any accusations are secret, but some details are understood based on the post-WWII precedent. The list of the accused is likely to be headed by Russian President Vladimir Putin who, as head of state, is de facto considered to be responsible for the crime of aggression under international law.  

In addition, Russian Prime Minister Mikhail Mishustin and Foreign Minister Sergei Lavrov known as the “troika” together with Putin as well as the leadership of Belarus, are also likely to be subject to any indictment, with the final list to be compiled by Ukraine. While these and any other individuals have “functional immunity” based on their formal governmental positions the legal advice is that they do not have “personal exemption.” This means that once they leave office, they can be tried.  

In the meantime, this does not preclude the tribunal from investigating or receiving evidence on the accusations and, if found guilty, from issuing arrest warrants “in absentia.”  “Personal immunity applies to all civil and criminal proceedings, even for international crimes, such as aggression. Thus, a troika member who has allegedly committed the crime of aggression will enjoy personal immunity for so long as they remain a troika member,” a research paper titled “Immunities and a Special Tribunal for the Crime of Aggression against Ukraine” published in February 2023 states.  However, immunities vary depending on the forum, and it remains legally uncertain whether personal or functional immunity would apply before a special tribunal prosecuting crimes of aggression, due to limited precedent and unsettled international practice. Final establishment of the tribunal requires the approval of two-thirds of the Council of Europe membership and possibly individual parliamentary ratification – a process that could take months. 

On March 17, 2023, following an investigation of war crimes, crimes against humanity and genocide, the ICC issued arrest warrants for Putin and Russia’s commissioner for children’s rights, Maria Lvova-Belova, for “the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.” 

Source:  kyivpost.com