“No one can go unpunished for the crimes committed, not even the leaders who decided to send all those soldiers (...). This is a very, very important signal”, declared the High Representative of the Union for Foreign Affairs and Security Policy, Kaja Kallas, in Lviv on Friday 9 May.
On Europe Day, the Ukrainian city hosted a meeting attended by Ms Kallas, the European Commissioner for Justice, Michael McGrath, the Ukrainian Prime Minister, Denys Shmyhal, the Secretary General of the Council of Europe, Alain Berset, as well as the Ministers of Foreign Affairs of the EU Member States and a group of partner States to agree, by adopting the Lviv Statement, on the necessary preparatory texts for the launch of the Special Tribunal for the Crime of Aggression against Ukraine.
The “core group” behind the project is said to comprise between 35 and 40 States, which have been engaged in negotiations since January 2023.
Agreement was reached on three texts: the draft statute of the tribunal, a bilateral agreement between Ukraine and the Council of Europe, and an extended partial agreement governing the participation of contributing States.
While the crime of aggression, i.e. the decision to use armed force against another State, is recognised by the International Criminal Court, legal limitations linked to the Rome Statute prevent prosecutions for Russia, which has not ratified the text.
“There is a procedural vacuum that needs to be filled”, said a senior European official ahead of the meeting.
The Special Tribunal should therefore complement the existing international structure, without interfering with the ICC, which retains jurisdiction over war crimes, crimes against humanity and acts of genocide.
The future Tribunal will be responsible for prosecuting the most senior Russian political and military figures.
These include the members of the “troika”, the President of the Russian Federation, Vladimir Putin, the Prime Minister, Mikhail Mishustin, and the Minister of Foreign Affairs, Sergey Lavrov, as well as between twenty and thirty senior officials.
Proceedings may be initiated in absentia, with due respect for the rights of the defence. If the defendants are still in office, the proceedings will be suspended until the end of their term of office.
The International Centre for the Prosecution of the Crime of Aggression (ICPA), launched in July 2023 (see EUROPE 13214/10) and hosted by the European Union Agency for Judicial Cooperation, Eurojust, has already gathered a large volume of evidence, stored in the database (CICED) also managed by Eurojust, which centralises evidence and facilitates international investigations (see EUROPE 13445/21) ready to be transmitted to the future prosecutor.
“There will be no peace until all the war crimes committed over the last three years have been brought to justice”, declared the French Minister for Europe and Foreign Affairs, Jean-Noël Barrot, on his arrival in Lviv.
“Russia will pay, through the Tribunal and through its assets”, said Denys Shmyhal. In a press release, the President of the European Commission, Ursula von der Leyen, reiterated that “the people of Ukraine deserve justice. And we will do everything in our power to make sure they get it”.
The Secretary General of the Council of Europe, Alain Berset, welcomed “a moment of unity and determination” to guarantee “a just and lasting peace”. He added in a press release that “justice also needs resources”, calling on States to support the future Tribunal.
As for the United States, the country did not take part in the Lviv meeting, but according to European sources, “the door remains open” to future support. In fact, the US authorities have not expressed any opposition to the evidence they have transmitted to ICPA being used by the future Tribunal.
The Lviv Statement: https://aeur.eu/f/gr2 (Original version in French by Nithya Paquiry)