Proposals
In April 2022 the Parliamentary Assembly of the Council of Europe (PACE) called for an ad hoc international criminal tribunal.[5] In September 2022, the Council of Europe proposed to create a tribunal that would have a mandate to "investigate and prosecute the crime of aggression" committed by "the political and military leadership of the Russian Federation."[2] Under the Council of Europe's proposal, the tribunal should be located in Strasbourg, "apply the definition of the crime of aggression" established in customary international law and "have the power to issue international arrest warrants and not be limited by State immunity or the immunity of heads of State and government and other State officials."[2]
The government of Ukraine has also called for the establishment of such a tribunal.[6][7]
In November 2022 the NATO Parliamentary Assembly designated the Russian Federation as a terrorist organization and called upon the international community to "take collective action towards the establishment of an international tribunal to prosecute the crime of aggression committed by Russia with its war against Ukraine."[4][8] The European Commission said that the European Union (EU) would work to establish an ad hoc criminal tribunal to investigate and prosecute Russia's crime of aggression.[3][9][10][11][12][13][14][15][16] In the same month the European Parliament also designated Russia as a state sponsor of terrorism, citing attacks against civilians, war crimes, and atrocities.[17]
On 19 January 2023, the European Parliament called for the creation of an international tribunal to carry out investigations and prosecutions for Russian and Belarusian responsibility for the crime of aggression, complementary to the International Criminal Court investigation in Ukraine. The vote passed with 472 votes in favour, 19 against and 33 abstentions.[1] On 4 March 2023 the European Union (EU) agreed to establish an International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) to fill in any gaps in prosecution from the International Criminal Court (ICC) as Russia had rejected the ICC jurisdiction to prosecute a case of aggression as neither Ukraine nor Russia ratified the 2010 ICC Kampala Amendments on "aggression" being added to the existing three grave international crimes, namely war crimes, crimes against humanity and genocide.[18]
Analysis
Some international lawyers have criticized the proposed tribunal. Kevin Jon Heller has stressed practical concerns, including obtaining suspects and evidence, warned that the tribunal would not necessarily "be able to prosecute Russian officials who would be entitled to immunity ratione personae", and expressed worries about the "selectivity of international criminal justice" that it would express.[19] Sergey Vasiliev has argued that an ad hoc tribunal would be unable to secure the presence of Putin or other defendants in the absence of Russian cooperation.[20]
In contrast, Carrie McDougall has argued that an ad hoc tribunal is the best available option to try a crime of aggression that has been committed and for which the International Criminal Court lacks jurisdiction.[21]
The idea is also supported by Evhen Tsybulenko and Henna Rinta-Pollari in their article, which is dedicated to the issue: "...the most appropriate approach to prosecuting the crime in the context of the Russo-Ukrainian war is to establish an international ad hoc tribunal, either through a treaty signed by the United Nations and Ukraine on the basis of a referral from the United Nations General Assembly and the United Nations Secretary-General or a multilateral treaty between Ukraine and other states supported by the United Nations".[22]
Core group
In late February 2023, Ukrainian foreign minister Dmytro Kuleba stated that a "core group" for creating the tribunal existed, including representation from Guatemala.[23]
Countries supporting the creation of the tribunal
Other political bodies
