EPL welcomes the initiatives of the state of Ukraine represented by the Ministry of Foreign Affairs of Ukraine (hereinafter – the Ministry of Foreign Affairs) and the Ministry of Justice of Ukraine (hereinafter – the Ministry of Justice), which are aimed at launching a special ad hoc tribunal against Russia in the context of a full-scale invasion of the Russian Federation. In our opinion, the launch of such a tribunal is particularly relevant in light of the high demand for justice and bringing to justice those guilty of committing the crime of aggression and other internationally illegal acts in society as a whole and in Ukraine in particular.
In view of the importance of creating a high-quality and effective mechanism for criminal prosecution at the international level for committing internationally recognized crimes during the full-scale invasion of the Russian Federation on the territory of Ukraine, it is extremely important for representatives of civil society to be better informed about current developments regarding the launch and operation of such a tribunal. Therefore, EPL submitted information requests to the Ministry of Foreign Affairs and the Ministry of Justice regarding the directions of work and progress of Ukraine in terms of creating an ad hoc tribunal against Russia. The responses received from the ministries are summarized below:
The initiative to create a separate tribunal that will investigate the crime of aggression was necessitated by the fact that the International Criminal Court (hereinafter – the ICC) cannot investigate this crime due to jurisdictional limitations.
The jurisdiction of the Special Tribunal will apply exclusively to the crime of aggression against Ukraine, which involves the violation of the territorial integrity of Ukraine since 2014 and the beginning of a full-scale war of Russia against Ukraine. The crime of aggression envisages international criminal responsibility of Russia’s top political and military leadership.
Environmental damaging is a war crime under Article 8 of the Rome Statute of the ICC. The Office of the Prosecutor General is reported to be conducting investigations into almost 200 facts of environmental war crimes, the results of which will be submitted to the ICC for review.
According to the position of the Ministry of Foreign Affairs, the crimes of Russians against the environment can be investigated by the ICC as war crimes, and therefore there is no need to create a separate tribunal to bring the guilty parties to justice for these crimes.
On September 2, 2022, the Decree of the President of Ukraine No. 661 “On the working group to study the issue of creating a special international tribunal regarding the crime of aggression against Ukraine” was adopted. Article 2 of the above-mentioned Decree instructs the working group to develop and make proposals regarding the creation of a special international tribunal on the crime of aggression against Ukraine.
At the beginning of 2023, the Minister of Foreign Affairs of Ukraine initiated the creation of a Coalition (Core Group) of states to create a Special Tribunal for the crime of aggression against Ukraine. The purpose of creating the Coalition of States is to discuss legal issues, in particular regarding models of the Special Tribunal, immunities of senior officials of the Russian Federation, etc. Today, the Coalition of States includes 40 states, including all countries of the Group of Seven and the European Union, except for Hungary.
Two countries of the Global South – Guatemala and Costa Rica – have also joined the Coalition. The Coalition continues to discuss the search for the most effective model of the Special Tribunal, which will have international support and will be able to hold the top political and military leadership of the Russian Federation accountable for the crime of aggression.
On July 3, 2023, the International Center for the Prosecution of the Crime of Aggression against Ukraine (ICPA) began its work. The results of the ICPA work will be submitted to the Special Tribunal for consideration.
It is important to emphasize that according to the position of the authorities of Ukraine, such a tribunal will exclusively consider the issue of responsibility for committing the crime of aggression, and therefore will not separately consider the issue of causing damage to the environment.
In our opinion, this position of the authorities of Ukraine is correct because the vast majority of environmental damage are war crimes in accordance with Article 8 of the Rome Statute of the ICC, and therefore, cases of environmental damage should be considered by the International Criminal Court within the limits of its powers and jurisdiction. This approach corresponds to the principles of international law and the obligations of states to the international community regarding environmental protection in the conditions of military operations.
However, the issue of conducting an effective investigation of criminal actions against the Ukrainian environment is still open, like the issues of opening relevant prosecution cases by the Prosecutor of the International Criminal Court, establishing mechanisms for assessing war-driven environmental damage, and creating an effective compensation mechanism. All these problematic issues are urgent and await answers from Ukrainian authorities and Ukraine’s partner states. We hope that the issue of ensuring justice for war-driven environmental damage will remain in the focus of the authorities and more active steps will be done in this direction.
Therefore, according to the information received, the launch of a special ad hoc tribunal against Russia is needed and supported both at the national and international levels. Further action to define an effective tribunal model and ensure its operation remains necessary, but we also would like to express appreciation to our partners for the progress in this direction. It is extremely urgent to activate efforts towards investigating war crimes against the environment because the long war has already caused damage that will be felt by Ukrainians for many generations. Moreover, the punishment for such actions against the environment should be effective and inevitable.
This material was compiled with the support of the International Renaissance Foundation. It’s content is the exclusive responsibility of the authors and does not necessarily reflect the views of the International Renaissance Foundation.
