02.07.2024

Accountability for the Crime of Aggression Against Ukraine

We, Ukrainian non-governmental organizations, as well as other signatories to these principles,

Representing a broad community that provides support to victims, documents international crimes, and conducts information and educational activities in the context of Russia’s armed aggression against Ukraine,

Note that the military and political leadership of the Russian Federation has been committing a continuous crime of aggression against Ukraine since 2014, as recognized by the UN General Assembly in resolutions A/RES/68/262 of March 27, 2014, A/RES/ES-11/1 of March 2, 2022,

Note that the military and political leadership of the Republic of Belarus has also committed and is complicit in the continuous crime of aggression by making its territory available to the Russian Federation for the purpose of waging aggression against Ukraine and by providing other facilitation in the commission of the crime of aggression since February 2022, respectively, as recognized by the UN General Assembly in resolution A/RES/ES-11/1 of March 2, 2022,

Recall that the crime of aggression, as stated by the judgement of the International Military Tribunal in Nuremberg, is considered a “supreme international crime” that contains the accumulated “evil of the whole” and enables the commission of other international crimes against civilians, committed in a widespread and systematic manner on the territory of Ukraine, as acknowledged by relevant international organizations, in particular by the UN Independent International Commission of Inquiry on Ukraine and the OSCE group of experts under the Moscow Mechanism,

Note that the responsibility of the military and political leadership of the Russian Federation and the Republic of Belarus for the crime of aggression against Ukraine is a requirement of international law, a request of Ukrainian society and the signatories to these principles, and it should be an inevitable consequence of any international crime,

Take into account that responsibility for the crime of aggression should be a requirement of the international community as a whole in order to prevent recurrent acts of aggression in the future and to redress specific victims of an international crime,

Emphasize that the Russian Federation and the Republic of Belarus must also bear state responsibility for the aggression and make reparations for the damage caused,

Regretfully note that the International Criminal Court does not currently have jurisdiction over the crime of aggression committed by the military and political leadership of the Russian Federation and the Republic of Belarus against Ukraine, and Ukraine is still not a party to the Rome Statute,

Note that the UN Security Council is authorized to create mechanisms of accountability for international crimes, following the example of the International Criminal Tribunals for Yugoslavia and Rwanda, the Special Court for Sierra Leone, and to refer situations to the International Criminal Court,

Regret to observe that the decision-making mechanism of the UN Security Council is a space for abuses of the veto power by its permanent members, which has led to the complete inability of this body to respond to threats to peace, violations of peace and acts of aggression in accordance with the UN Charter, and therefore the UN Security Council does not respond properly to the crime of aggression against Ukraine,

State that the UN General Assembly should be able to act as an international body to respond appropriately to international disputes and violations of international peace and security,

Take into account note of the call of the Parliamentary Assembly of the Council of Europe in Resolution 2482 (2023) to establish an international criminal tribunal for the crime of aggression against Ukraine, which should be endorsed and supported by as many states and international organizations as possible, and in particular by the UN General Assembly,

Consider the risks that the military and political leadership of states would avoid responsibility for the crime of aggression, while they should not feel protected by international law in case of international crimes commission,

Take into account the unprecedented support which was and is being provided to Ukraine both on the battlefield and in the legal struggle for justice,

Emphasize that Ukraine has an inherent right to self-defense under Article 51 of the UN Charter, which, according to Articles 21-22 of the Draft Articles of the UN International Law Commission on the Responsibility of States for Internationally Wrongful Acts, is closely linked to the right to initiate and establish national and international mechanisms aimed at punishing those responsible for the crime of aggression and other international crimes,

Remain open to new proposals outlining the accountability mechanism for the crime of aggression against Ukraine, which are in line with the spirit of international law and can meet the demand for justice and overcome impunity for international crimes,

And believe it is necessary to consolidate efforts to support such decisions:

The mechanism of responsibility for the crime of aggression against Ukraine, in the absence of existing authorized institutions, should have an ad hoc status and act on behalf of the international community as a whole, in order to overcome the immunities of the military and political leadership of the Russian Federation and the Republic of Belarus in accordance with international law.
In order to avoid the need to create new similar ad hoc mechanisms in the future, the International Criminal Court’s restrictions on prosecuting the perpetrators of the crime of aggression under the Rome Statute should be lifted, and the UN should be reformed to enable effective response to violations of international peace and security.
The international military tribunals after World War II were the first attempt to overcome impunity for international crimes of global proportions. At the same time, the international community should consider the current stage of development of the international law. The conclusion of an international treaty establishing a mechanism that will be supported by the international community as a whole may be compatible with these realities.
One of the ways to achieve the support of the international community as a whole, given the current refusal of the UN Security Council to respond properly to the violation of international peace and security, may be to use the UN General Assembly to formulate an international response to the crime of aggression by the military and political leadership of the Russian Federation and the Republic of Belarus.
The mechanism of accountability for the crime of aggression against Ukraine can be supported by the international community as a whole through voting for a UN General Assembly resolution authorizing the UN Secretary-General to sign an international treaty with other states on behalf of the UN to establish an ad hoc mechanism.
In addition to the formal vote on the UN General Assembly resolution, it is necessary to carry out ongoing diplomatic and political efforts to ensure that the states across the world cooperate with the mechanism and implement its decisions.
The international treaty should be open for expressions of consent to be bound by it for all the willing states and international organizations, not just Ukraine. Interested European Union and Council of Europe member states and other states should form a strong core of the mechanism by simultaneously signing such an agreement with Ukraine and assuming direct responsibilities for ensuring its functioning and implementing its decisions.
The mechanism should be created in synergy with the UN General Assembly as a platform for achieving international legitimacy of the mechanism; an international treaty as a tool for the formation of the mechanism and its support; and with the involvement of interested member states of the European Union, the Council of Europe and other countries as the core of the mechanism.
The Council of Europe can become the primary platform to develop statutory documents and the implementation of the mechanism, with further involvement of other states of the world both individually (including by accession to an international treaty) and by supporting the relevant UN General Assembly resolution, in order to ensure the international legitimacy of the mechanism and overcome the immunities of the military and political leadership of the Russian Federation and the Republic of Belarus.
The statutory documents of the mechanism should contain a customary definition of the crime of aggression and at least exclude provisions that would limit the jurisdiction of the mechanism ratione personae over holders of immunities among the military and political leadership of the Russian Federation and the Republic of Belarus.
Strict adherence to international human rights law, including the right of the accused to a fair trial, should be the guiding principles of the mechanism. This is a prerequisite for determining whether trials in absentia are possible. At the same time, the members of the mechanism should be bound to ensure the implementation of its possible decisions.
The mechanism should provide for redress to the victims of the crime of aggression, in particular through the confiscation of private assets of the convicted, but should be consistent with the international compensation mechanism under the auspices of the Council of Europe.
The activities of the International Center for the Investigation of the Crime of Aggression against Ukraine, based on the European Union Agency for Criminal Justice Cooperation, should be implemented in the mechanism of accountability for the crime of aggression against Ukraine.
If the option of establishing a mechanism of accountability for the crime of aggression on the basis of the national justice system of Ukraine or a third or third states is used, it should act on behalf of the international community as a whole (supported by the UN General Assembly through the adoption of a resolution and the signing of an international treaty between the UN and the relevant states), and its founding documents should at least exclude any reservations limiting the jurisdiction of the mechanism depending on the position of the perpetrators and have a clause overriding the immunities of military and political leadership of other countries.
At the same time, Ukraine should immediately ratify the Rome Statute of the ICC and become a full member with the full range of relevant rights and obligations. Ukraine should adapt its national legislation to the Rome Statute of the ICC, and become a key actor introducing effective accountability for the crime of aggression and implementing new elements of international crimes in the Rome Statute of the ICC, which require a response from the international community in view of the current realities of the armed conflict.
In addition to individual criminal liability for the crime of aggression, a mechanism for holding states accountable for the internationally wrongful act of aggression, including further redress to the affected states, should be established at the international level. To this end, the international community should begin to develop a new international treaty within the UN and/or mechanisms that implement existing international law, including customary international law, including the Draft Articles of the UN International Law Commission on the Responsibility of States for Internationally Wrongful Acts.