While positional battles continue on the front lines of the Russian-Ukrainian conflict, work continues on international platforms to establish a tribunal for those guilty of the crime of aggression; ARC tracks the progression of events [1][2].

On July 6, the OSCE adopted the resolution “Russian Federation’s War of Aggression Against Ukraine and Its People, And Its Threat to Security Across the OSCE Region” [3], which supports the creation of a special tribunal. At first glance, it may appear to be just another “deep concern” statement among many others, and the OSCE just got criticism of Ukrainian people by canceling a special monitoring mission in our country [4].

In reaction to the new resolution, Russia issued typical threats with nuclear weapons [5] that have grown so commonplace as to be of no particular interest. However, this text contains two fresh and extremely essential elements that prevent us from classifying it as one of many. This is evidence that the Russian and Belarusian tyrants are personally responsible for atrocities in Ukraine, as well as the inclusion of occupied Crimea in the future tribunal’s subpoena. Assistant professor Oleksiy Plotnikov researched this issue.

It should be recalled that in contemporary international criminal law, genocide, crimes against humanity, war crimes, and aggression are distinct crimes. In the situation in Ukraine, aggression became the underlying cause and precondition for the conduct of crimes against humanity, war crimes, and highly likely genocide. The International Criminal Court is already examining the problem of crimes against humanity and war crimes perpetrated since 2014. However, prosecution and punishment of perpetrators of such crimes under Ukrainian and international law, which is vitally essential in and of itself, will not lead to prosecution of aggression. It is hard for International Criminal Court to consider the aggression for procedural reasons, details here [1]. Conviction of individuals culpable of aggression in Ukraine is theoretically possible, but the judgement of an international judicial body may have considerably more weight.

Since 2022, efforts have been ongoing to establish a special tribunal for the crime of aggression against Ukraine. A small number of high-ranking Russian Federation officials who bear personal responsibility for planning, preparing, unleashing, and waging an aggressive war against Ukraine should be tried by this tribunal, for details see [2].

The establishment of the tribunal will necessitate not only legal but also political considerations unprecedented since the Nuremberg trials. Special international judicial organizations to condemn international crimes are typically established by a decision of the UN Security Council, as in Yugoslavia or Rwanda, or by a treaty between the UN and a state. Due to Russia’s veto power in the Security Council, which it will undoubtedly use to obstruct any relevant effort, this approach appears difficult in the case of an aggression trial against Ukraine. Exclusion of the aggressor from the Security Council, or any other means of circumventing the UN’s rules, will need extraordinary cooperation of the political will of numerous governments. The OSCE’s adopted document can be viewed as a representation of this concerted and formally documented political will.

A document already exists that records such political will. It is the European Parliament resolution on the fight against impunity for war crimes in Ukraine. It “calls on the EU Member States and the international community, in close cooperation with Ukraine, to urgently set up a special ad hoc international criminal tribunal to investigate and prosecute the crime of aggression committed by the political and military leadership of the Russian Federation and to provide the necessary financial support to the tribunal” [5]. This document is directed at EU institutions and was intended to budge the European bureaucracy regarding support for the special tribunal.

No executive body is directly influenced by the OSCE document. However, its geographical scope is broader, encompassing all 57 OSCE member states in Europe, Asia, and North America. It also covers a broader variety of issues related to aggression, and these issues are articulated a harsher language than in the document of the European Parliament.

What’s inside? Who, how, and what is violated comprise the first three points. Who? “On 24 February 2022 the Russian Federation, with the support of the Republic of Belarus, launched a full-scale military invasion and war of aggression against Ukraine against the backdrop of ongoing Russian aggression in violation of Ukraine’s sovereignty, independence and territorial integrity since 2014”.

How? “Large-scale, state-sponsored campaign of disinformation and propaganda emanating from the Russian Federation that seeks to dehumanize the Ukrainian people, deny the Ukrainian State the right to exist, justify a war of aggression and falsely portray horrific acts committed by Russian forces”.

What is violated? “The Russian Federation, under its current political leadership, has violated in its war of aggression against Ukraine but also elsewhere the principles enshrined in the 1975 Helsinki Final Act, which include sovereign equality of participating States; respect for the rights inherent in sovereignty; refraining from the threat or use of force; inviolability of frontiers; territorial integrity of States; peaceful settlement of disputes; non-intervention in internal affairs; respect for human rights and fundamental freedoms; equal rights and self-determination of peoples; co-operation among States; and fulfilment in good faith of obligations under international law”.

The second component of the resolution, not taking into account references to previous instruments, is a comprehensive list of crimes committed as part of aggression, including murder, torture, sexual violence, deportation of the population, destruction of cultural heritage, and theft of property.

Not the list itself is most notable, but its placement within the framework of Russia’s aggressive stance. It is explicitly stated that aggressive and violent acts were committed not only against Ukraine, but also against other OSCE member states, including Georgia and Moldova, and that threats of expanding aggression affect the Baltic States, Central and Eastern Europe, and the Black Sea region. Additionally, hostile actions such as energy blackmail, trade restrictions, and war threats are viewed as manifestations of the threat of force.

The final component is the denunciation of these actions. In addition to the typical phrase “condemns resolutely and unequivocally”, this section contains the most intriguing thing in the entire document: “Views Vladimir Putin as ultimately responsible for the horrific acts of violence and destruction that constitute the Russian Federation’s violations of Helsinki Principles and commitments in Ukraine”. In addition, the document states that “Alexander Lukashenko has actively and concretely supported Russian aggression and is therefore complicit in the horrific acts of violence and destruction that constitute the Russian Federation’s violations of Helsinki Principles and commitments in Ukraine”.

The previous documents provided only vague references to the perpetrators of the crime of aggression. For example, the Resolution the European Parliament calls for an investigation into and prosecution of “the crime of aggression committed by the political and military leadership of the Russian Federation and to provide the necessary financial support to the tribunal”. The conditional “supposedly” has been removed from the OSCE paper, and the political and military leadership of the aggressor state are identified directly.

The logical conclusion is a call for “establishment of effective legal mechanisms to prosecute and punish those responsible for such crimes, including a special international criminal tribunal, as well as the provision of the financial support needed for this effort to succeed in providing justice” as well as for the prosecution of those responsible “at all levels of political and military authority, particularly for acts determined to constitute a war of aggression, war crimes, crimes against humanity or genocide of the Ukrainian people”.

By identifying those responsible for the crime of aggression as well as other crimes, the resolution appears to reflect the chronological and spatial cover of this crime. Unlike the original call for the tribunal [7], it is not confined to events that occurred after February 24, 2022. It highlights, in particular, that a large-scale war of aggression began on February 24, but that it began “against the backdrop of ongoing Russian aggression in violation of Ukraine’s sovereignty, independence and territorial integrity since 2014”. Consequently, the crime of aggression has been committed since 2014.

Multiple references to prior OSCE and UN publications regarding the illegality of the occupation of Crimea, in which this occupation was classified as aggression, lend support to this view. Multiple times, the document underlines non-recognition of the illegal occupation of the Crimea through the use of force.
We sure it is unacceptable to leave room for manipulation due to the hypothetic assumption that the crime of aggression, for which the Russian dictator and his henchmen are responsible, allegedly began in 2022 only, and that prior actions can and do create legal liability, where the Russian political leadership’s responsibility is allegedly “not readily apparent”.

Any ambiguity must be eliminated from the further development of the legal basis for the tribunal’s activities regarding Russian aggression. Investigation, prosecution and punishment should be carried out in respect to all manifestations of the crime of aggression, beginning with the alleged planning of the annexation of Crimea prior to 2014.

Above-pointed OSCE resolution appears to be a step forward in expanding political support for the tribunal’s concept of aggression against Ukraine, as well as an unambiguous defeat of the aggressor on a platform where he has considerable influence.

It is intriguing that the text concludes with a plea to develop tools to exclude the aggressor state from OSCE Parliamentary Assembly decision-making institutions.

Such methods may include the termination of the appropriate national delegation’s mandate. If such mechanisms are truly developed, this might serve as a helpful example for other international bodies, counteracting Russia’s aggression, including the UN Security Council. Therefore, Russian influence on the decision-making process of international actors will become increasingly illusory, and the perspectives of a tribunal for Putin will become more real.

Sources
1. https://arc.construction/29841?lang=uk
2. https://arc.construction/30625?lang=uk
3. https://www.oscepa.org/en/documents/annual-sessions/2022-birmingham/4407-birmingham-declaration-rus/file
4. https://www.dsnews.ua/ukr/world/obse-svorachivaet-rabotu-i-uhodit-iz-ukrainy-29042022-458365
5. https://www.ukrinform.ua/rubric-polytics/3523484-tribunal-dla-putina-u-mzs-vidpovili-na-pogrozi-medvedeva-adernou-zbroeu.html
6. https://www.europarl.europa.eu/doceo/document/TA-9-2022-0218_EN.pdf
7. https://www.eurointegration.com.ua/files/a/a/aad78ad-combined-statement-and-declaration-1-.pdf