In-Depth Analysis – Tribunal for the crime of aggression against Ukraine – a legal assessment – PE 702.574 – Subcommittee on Human Rights

After examining the innovative character of the proposed tribunal, the paper analyses three main interconnected elements linked to the establishment and functioning of the tribunal: the legal basis for its creation; problems of immunity; and questions of enforcement and implementation of its decisions. In the end, taking into account legitimacy considerations which are of crucial importance in this case, the authors evoke two possibilities. A first option would be to ground the tribunal’s creation in Ukrainian domestic law and on its right to self-defence, which would open the door to prosecute foreign nationals for the crime of aggression, complementing it with an agreement with the United Nations (UN) or another (regional) organisation: the tribunal would thus be ‘established by law.’ A second option, more legitimate as it would be based on the UN Charter, would be to interpret broadly existing legal mechanisms, especially the ‘Uniting for Peace’ resolution. Given the UN Security Council’s inability to discharge its duties due to the veto of one of its permanent members (Russia), the UN General Assembly could exceptionally defer the crime of aggression against Ukraine to the International Criminal Court. In both cases, however, it must be kept in mind that significant problems of legality remain.