“Today we are gathered at a truly historic and decisive moment when the civilised world not only expresses, but also demonstrates through concrete action that responsibility is what matters most”. These few words from the Prosecutor General of Ukraine, Andriy Kostin, sum up the significance of the launch of the activities of the International Centre for the Prosecution of the Crime of Aggression against Ukraine (CIPA) on Monday 3 July at Eurojust in The Hague (Netherlands).
Alongside Mr Kostin, the President of the European Judicial Cooperation Agency, Ladislav Hamran, the European Commissioner for Justice, Didier Reynders, the Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan, the US Deputy Attorney General, Kenneth A. Polite, and the Dutch Minister of Justice, Dilan Yeşilgöz-Zegerius, also welcomed the establishment of this new structure, created to fill a gap in the application of international law.
And with good reason: Russia, several of whose top dignitaries have been charged with a crime of aggression (see EUROPE 13124/12) in connection with the war against Ukraine, is not a party to the Rome Statute, nor is Ukraine. The International Criminal Court is therefore currently unable to prosecute its leaders. “We are in a world where law enforcement is very imperfect”, Mr Khan commented on this matter.
In November 2022, the European Commission and the European External Action Service presented a document analysing the various options for bringing the perpetrators of crimes, including aggression, to justice. Announced on 2 February 2023 by the President of the European Commission, Ursula von der Leyen, and created in March (see EUROPE 13135/12), CIPA is, in effect, the first stage in the process of preserving evidence and preparing cases for future trials, whether before national courts, a specialised tribunal or the International Criminal Court for crimes within its jurisdiction.
It also responds to a historical urgency, as Ladislav Hamran explained: “We have an enormous amount of evidence available in different jurisdictions. Never in history have we had so much evidence of aggression as we do today. We’re talking about various videos, aerial photographs and GPS readings. We have intercepted communications, data on mobile phones and so on. All this requires a considerable effort”. And if the war in Ukraine is the most documented in history, it is also the first in which active investigations were carried out simultaneously with the armed conflict.
To meet these unprecedented challenges, the independent prosecutors of five of the members of the Joint Investigation Team (JIT) (see EUROPE 13167/19) and of Ukraine will now be brought together within the same institution to work together on a daily basis. “The Centre will not be able to issue arrest warrants or file indictments”, explained Commissioner Reynders. It will be a coordination platform for exchanging evidence quickly and efficiently and agreeing on a joint investigation and prosecution strategy.
The CIPA will also benefit from the participation of a special prosecutor appointed by the United States following a memorandum of understanding with the members of the JIT, the ICC and the operational, technical, logistical and financial support of Eurojust.
The database of evidence on international crime, managed by Eurojust, will play a central role in the work of CIPA. It will also be possible to store national evidence provided by future CIPA participants for subsequent analysis.
In the coming months, the participation of other countries and organisations in CIPA, such as the EU Advisory Mission to Ukraine, will be facilitated. In addition, countries in possession of information or evidence relevant to the investigation into the crime of aggression against Ukraine may also request their participation. (Original version in French by Nithya Paquiry)