Author: Pavlo Romaniuk

On February 24, 2022, Russia extended its armed aggression against Ukraine, unleashed in 2014 with the illegal annexation of the Autonomous Republic of Crimea, and with the temporary occupation of certain areas of Donetsk and Luhansk regions. Unlike the previous stage of the international armed conflict (2014-2022), with the attack on February 24, 2022, Russia has already openly used its armed forces and other government and private paramilitary groups along the entire demarcation line with the occupied territories, on the state border between Ukraine and Russia, as well as on a Belarus border section. Belarus, in addition to the right of passage through their territory in the spring of 2022, also host Russian military formations and bases on their territory. The attacks on the territory of Ukraine continue from those positions. Thus, such activity of Belarus and its senior officials is nothing else than complicity in the aggressive war of Russia against Ukraine.

There are several reasons for the full-scale invasion. One of them is the weak reaction of the West  to the aggression of Russia against Georgia in 2008 and against Ukraine in 2014. It is also about the ineffective policy of appeasement. However, the main reason was the failure of existing international legal mechanisms to counter the aggression of one of the permanent members of the UN Security Council. Sanction pressure that mainly targeted the entourage of Russia’s top leaders, rather than directly the leaders themselves, did not have a proper effect. In addition, the prosecution of international criminal responsibility for the crime of aggression had not been seriously considered until February 24, 2022. Thus, until now, none of Russia’s top officials have been convicted.

The impunity can provoke (generate) new invasive wars coming from totalitarian and authoritarian regimes. Furthermore, aggression precedes the commission of all other international crimes, such as war crimes, crimes against humanity, and genocide. There is clear evidence collected and documented after the de-occupation of Kyiv, Chernihiv, Sumy, and Kharkiv regions of Ukraine that shows numerous facts confirming those crimes.

To counteract the further continuation of aggression in Ukraine and its spread to other countries and to prevent the commission of other international crimes, the first critical thing to be done is to ensure the inescapable punishment for the act of aggression, which is the source of all other crimes (war crimes, crimes against humanity, and genocide). In other words, it is necessary to find effective mechanisms for bringing to justice the top officials of the aggressor state who made decisions on aggression or contributed to their adoption. Today, possible formats for implementing international criminal justice for the crime of aggression are discussed on different levels, both among experts and policy-makers. They take into account historical experience (in particular, the Nuremberg Trials and Tokyo Tribunal, which after the Second World War were, in fact, by far the only trials on charges of aggression) and modern challenges associated with the possible delivery of such justice with no personal attendance of these persons in the courtroom (in absentia), when the jurisdiction is not recognised, does not extend, or overlaps, etc.

As of now, discussions on establishing such a tribunal are still underway. This paper attempts to explain the importance of the need to establish such a tribunal as promptly as possible, both for Ukraine and for the entire international community, as well as analyse possible ways to organise the tribunal, and its optimal model.

On February 24, 2022, Russia extended its armed aggression against Ukraine, unleashed in 2014 with the illegal annexation of the Autonomous Republic of Crimea, and with the temporary occupation of certain areas of Donetsk and Luhansk regions. Unlike the previous stage of the international armed conflict (2014-2022), with the attack on February 24, 2022, Russia has already openly used its armed forces and other government and private paramilitary groups along the entire demarcation line with the occupied territories, on the state border between Ukraine and Russia, as well as on a Belarus border section. Belarus, in addition to the right of passage through their territory in the spring of 2022, also host Russian military formations and bases on their territory. The attacks on the territory of Ukraine continue from those positions. Thus, such activity of Belarus and its senior officials is nothing else than complicity in the aggressive war of Russia against Ukraine.

There are several reasons for the full-scale invasion. One of them is the weak reaction of the West  to the aggression of Russia against Georgia in 2008 and against Ukraine in 2014. It is also about the ineffective policy of appeasement. However, the main reason was the failure of existing international legal mechanisms to counter the aggression of one of the permanent members of the UN Security Council. Sanction pressure that mainly targeted the entourage of Russia’s top leaders, rather than directly the leaders themselves, did not have a proper effect. In addition, the prosecution of international criminal responsibility for the crime of aggression had not been seriously considered until February 24, 2022. Thus, until now, none of Russia’s top officials have been convicted.

The impunity can provoke (generate) new invasive wars coming from totalitarian and authoritarian regimes. Furthermore, aggression precedes the commission of all other international crimes, such as war crimes, crimes against humanity, and genocide. There is clear evidence collected and documented after the de-occupation of Kyiv, Chernihiv, Sumy, and Kharkiv regions of Ukraine that shows numerous facts confirming those crimes.

To counteract the further continuation of aggression in Ukraine and its spread to other countries and to prevent the commission of other international crimes, the first critical thing to be done is to ensure the inescapable punishment for the act of aggression, which is the source of all other crimes (war crimes, crimes against humanity, and genocide). In other words, it is necessary to find effective mechanisms for bringing to justice the top officials of the aggressor state who made decisions on aggression or contributed to their adoption. Today, possible formats for implementing international criminal justice for the crime of aggression are discussed on different levels, both among experts and policy-makers. They take into account historical experience (in particular, the Nuremberg Trials and Tokyo Tribunal, which after the Second World War were, in fact, by far the only trials on charges of aggression) and modern challenges associated with the possible delivery of such justice with no personal attendance of these persons in the courtroom (in absentia), when the jurisdiction is not recognised, does not extend, or overlaps, etc.

As of now, discussions on establishing such a tribunal are still underway. This paper attempts to explain the importance of the need to establish such a tribunal as promptly as possible, both for Ukraine and for the entire international community, as well as analyse possible ways to organise the tribunal, and its optimal model.

Author : Pavlo Romaniuk

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