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ABOUT THE CREATION OF A SPECIAL TRIBUNAL TO PUNISH THE LEADERSHIP OF THE RUSSIAN FEDERATION

STATEMENT OF THE WORLD CONGRESS OF UKRAINIAN LAWYERS
ON THE IMPLEMENTATION OF THE PRINCIPLE OF INEVITABILITY OF PUNISHMENT
AND THE CREATION OF A SPECIAL TRIBUNAL TO PUNISH THE LEADERSHIP OF THE RUSSIAN FEDERATION FOR THE CRIME OF AGGRESSION AGAINST UKRAINE

ABOUT THE CREATION OF A SPECIAL TRIBUNAL TO PUNISH THE LEADERSHIP OF THE RUSSIAN FEDERATION

October 21, 2022

It is the eighth month of the full-scale war ongoing throughout Ukraine – the Russian Federation’s unprovoked armed aggression aimed not only at destroying the sovereignty of Ukraine, its territorial integrity and political independence, but also at obliterating the Ukrainian nation as such.

Purposefully and consciously, Russian troops destroy critical infrastructure, educational, cultural and health facilities, religious and residential buildings using all possible types of weapons, even those prohibited by international conventions. During this time there have been recorded more than 505 damaged and destroyed objects of material cultural heritage and cultural institutions of Ukraine, more than 200 schools and 127 health care institutions cannot be restored, more than 2,500 schools and 826 health care institutions have been partially damaged. Some Ukrainian cities and villages, like Mariupol, are simply wiped off the map. According to government estimates which are not final, the overall damage to the country has almost reached $700 billion.

Despite Russia’s huge numerical superiority in armaments during the first phase of the war, especially in tanks, aviation, missiles and artillery, the Armed Forces of Ukraine managed to inflict a strategic defeat on the invaders, breaking their plans of the blitzkrieg or the “three-day war” and liberated the temporarily occupied territories of the Kiev, Zhytomyr, Chernihiv, Sumy regions and recently – the Kharkiv region and parts of the Donetsk, Lugansk and Kherson regions. On the liberated territories there have been revealed terrible war crimes committed by the aggressor. The whole world learned about Bucha, Irpin, Borodyanka, Izyum, Lyman, Kupyansk and other cities, where thousands of civilians were tortured and killed. One can only guess about other atrocities committed in Mariupol, Volnovakha, Kherson and Melitopol. The enemy committed practically all types of war crimes and crimes against humanity on the Ukrainian territory: mass killings, tortures, rapes, executions of prisoners of war and civilians, including children, looting, kidnapping, deportation of the population and forced mobilization in the temporarily occupied territories – this is far from complete list of the “achievements” of the Russian army and its political leadership. Moreover, having experienced a military defeat on the Ukrainian battlefields, the Russian military by direct order of the Russian President turned to committing outright acts of terror, having launched in early October this year and later missile attacks against Ukrainian energy infrastructure facilities and civilian population of the major part of regional centers of Ukraine. As a result of these attacks dozens of people were killed, hundreds injured, many regions of the country remained without electricity, heating and water supply. Only during two morning hours on 10 October, 2022, 84 missiles, including ballistic and cruise missiles, as well as 25 kamikaze drones were launched at civilian targets.

The World Congress of Ukrainian Lawyers draws attention to the fact that the legal signs and corresponding prohibitions regarding the crime of aggression, war crimes and crimes against humanity which constitute the basis of international humanitarian law, have long been defined by a number of interstate legal instruments, in particular: The Geneva Conventions for the Protection of Victims of War adopted in 1949, the UN General Assembly Resolution 3314 (XXIX) adopted on 14 December, 1974, the Rome Statute of the International Criminal Court adopted in 1998, etc. Based on these documents, the UN Independent International Commission of Inquiry on Ukraine which was authorized by the UN Human Rights Council to investigate all possible violations of human rights and international humanitarian law, as well as related crimes in the context of the Russian aggression against Ukraine, stated on 23 September, 2022, that it found evidence of war crimes committed after Russian invasion into Ukraine.

The World Congress of Ukrainian Lawyers is conscious of this and reminds that the principle of the inevitability of punishment, formulated by the outstanding Italian lawyer Cesare Beccaria back in the 18th century, is the cornerstone of criminal law, including international criminal law, according to which no crime should be left without punishment if there is no legal basis for releasing a person who committed it from criminal responsibility or punishment.

The World Congress of Ukrainian Lawyers considers as positive that since the first day of the full-scale invasion Ukraine has introduced mechanisms for the implementation of this principle, in particular through international structures. Thus, the investigative commissions under the procedural leadership of the Ukrainian Prosecutor General’s Office as of 21October, 2022, recorded more than 41 thousand criminal crimes, in particular 41,294 crimes of aggression and war crimes, including crimes against children (without taking into account the areas where active combat operations are taking place), in particular 429 children were killed and 817 received injures of varying severity. In order to properly record and document such crimes there has been created a web resource which is the main state platform for collecting evidence.

In addition, Ukraine initiated opening of relevant cases in the international justice system, namely in:

• The European Court of Human Rights (ECHR) – court decision of 1 March, 2022, regarding the application of temporary (interim) measures;
• The UN International Court of Justice with the scheduled hearings in the case of the Convention on the Prevention and Punishment of the Crime of Genocide;
• The International Criminal Court (ICC), where according to the joint statement by 39 states parties to the Rome Statute of the ICC and based on the court prosecutor Karem Khan’s decision, an investigation into the war crimes, crimes against humanity committed by the Russian Federation in Ukraine has been launched, for the further transfer of these materials to the ICC. In line with this, in April, 2022, the ICC prosecutor and the prosecutor generals of Lithuania, Poland and Ukraine signed an agreement on joining the ICC Office of the Prosecutor to the Joint Investigation Team, which became a precedent in the history of the court.

The World Congress of Ukrainian Lawyers hopes that the above mentioned institutions will subsequently start effective legal proceedings and trials, in which war crimes and crimes against humanity committed by the individual Russian militaries in Ukraine will be heard.

At the same time, we are confident that, despite the importance and binding nature of these actions with regard to the implementation of the principle of inevitability of punishment, the main issue – holding the top political leadership of the Russian Federation accountable for the crime of aggression – remains open, because the violations of the international humanitarian law during the war are secondary, derived from the main crime – the crime of the armed aggression of the Russian Federation against Ukraine.

Unfortunately, the existing international legal mechanisms do not allow punishing the Kremlin elite for one reason or another, both political and procedural. As a permanent member of the UN Security Council, Russia blocks any activity of the United Nations that does not meet its political interests. It should be noted here that according to the requirements of due process, when voting at a meeting of the UN SC, the vote of the country on which the violation of the requirements of the UN Charter is being considered should not be counted. Consideration of the crime of aggression in the ICC is problematic given the lack of ratification of the Rome Statute and its amendments by the Russian Federation and Ukraine. The jurisdiction of the European Court of Human Rights does not cover this type of crime.

In view of the above the World Congress of Ukrainian Lawyers expresses its full support for the initiative of Ukraine to create by a coalition of States a Special Tribunal for the punishment of the crime of aggression against Ukraine, as well as declares its adherence to the statement “Calling for the creation of a Special Tribunal for the punishment of the crime of aggression against Ukraine” and to the project of the relevant Declaration of 4 March 2022 (“The Declaration on the establishment of a Special Tribunal for the punishment of the crime of aggression against Ukraine”), which was prepared by the Ukrainian-British working group and signed by the leading world and Ukrainian international lawyers, former judges of the international judicial institutions. We believe that like the London Declaration of 1942, which laid the foundation for the Nuremberg Tribunal and the condemnation of Nazism, the above documents are legally sound, timely and will contribute to the establishment of a Special Tribunal for the punishment of the crime of aggression against Ukraine. We note that the lack of condemnation of the crimes by the Soviet totalitarian communist regime has also served as the basis for ressentiment, as well as the cause for the Russian invasion and the commitment of numerous war crimes by the Russian Federation. States parties to the establishment of the Tribunal should grant jurisdiction under national criminal law and general international law to a special criminal court, as well as to provide it with jurisdiction to investigate the crime of aggression, to identify both the perpetrators of the crime and the accomplices – those who have significantly contributed to or influenced its commitment.

The World Congress of Ukrainian Lawyers draws attention to the fact that at this stage the recognition of the Russian Federation as a sponsor of terrorism, as well as the recognition of the commitment of genocide against the Ukrainian people are significant auxiliary factors in the implementation of the principle of inevitability of punishment. In addition, we understand that the implementation of the principle of inevitability of punishment is not possible without the victory of the Armed Forces of Ukraine over the aggressor, the complete liberation of the temporarily occupied territories and the establishment of the sovereignty of Ukraine within its internationally recognized borders. Thus, providing Ukraine with more modern both defense and offensive weapons, the creation of an “air shield” over its territory is an urgent need today. Those are the points of the peace formula from Ukraine that the President of Ukraine Volodymyr Zelensky was speaking of at the 77th session of the UN General Assembly on 22 September, 2022.

The World Congress of Ukrainian Lawyers calls on the legislators of Ukrainian origin around the world to do their best in their host countries to implement the principle of inevitability of punishment against the criminals of the aggressor country: to encourage the governments of these countries to create an international Special Tribunal, to recognize the Russian Federation as a state sponsor of terrorism, to recognize the Russian Federation's genocide against the Ukrainian people, to provide Ukraine with the necessary weapons to protect its sovereignty in line with the principles and norms of international law!

The World Congress of Ukrainian Lawyers has no doubt about the victory of Ukraine and the forces of democratic peace, the establishment of a just peace and the inevitable punishment of the Russian aggressor!
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