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The declaration on the establishment of a special criminal tribunal for the crime of aggression against Ukraine

On 4 March 2022, the Minister for Foreign Affairs of Ukraine Dmytro Kuleba, together with leading national and international experts in international law, agreed on the importance of signing a declaration on the establishment of a special criminal tribunal for the crime of aggression against Ukraine.

The signature of the declaration has been preceded by a discussion on the need for the establishment of a special tribunal and the specifics of its jurisdiction. An online event, supported by Chatham House, was also attended by: Rt. Hon Gordon Brown, former Prime Minister of the United Kingdom, Professor Dapo Akande, Professor of Public International Law, University of Oxford, Member of the UN International Law Commission (2023-2027), Mykola Gnatovskyy, Professor of International Law, Taras Shevchenko National University of Kyiv, former President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2015–2021), Professor Philippe Sands QC, Professor University College London, Barrister Matrix Chambers, and many other renowned experts in international criminal law.

The participants in the discussion agreed that:

– International criminal law defines the following four categories of international crimes: war crimes, crimes against humanity, genocide and war of aggression. The International Criminal Court has jurisdiction over the first three categories of crimes committed in Ukraine.

– The International Criminal Court has no jurisdiction over the crime of aggression if the act of aggression is committed by a state that is not a party to the Statute of this Court unless the UN Security Council refers the case to the ICC. As Russia has not ratified the Statute and will veto any initiative by the UN Security Council, the International Criminal Court is currently unable to investigate the crime of aggression against Ukraine.

– Thus, there is a need to establish a Special Tribunal with exclusive jurisdiction to investigate and review the crime of aggression against Ukraine. In addition to the specific actions that constitute an act of aggression in Ukraine, the Special Tribunal should also review all political, economic and other decisions of the aggressor states and their leaders that led to the act of aggression.

– A Special Tribunal may be established either on the basis of an agreement between several states or on the basis of an agreement between Ukraine and the United Nations. Countries that agree to establish a Special Tribunal shall transfer their jurisdiction in accordance with their national criminal codes and international law, and agree that the Special Tribunal has the power to investigate both perpetrators of aggression and those who financially or otherwise contributed to the crime.

You can watch the discussion at the link.

A declaration for the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine can be found at the link.

UBA’s translation of the declaration in Ukrainian is available at the link.

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