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The path to international tribunal on aggression in Ukraine must run through UNGA

Ban Ki-moon Seoul  

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●   Thu, April 20, 2023

A year after Russia’s full-scale invasion of Ukraine, the search for a credible path towards peace, based on the United Nations Charter, is ever more urgent. At the same time, mounting evidence of war crimes and atrocities committed by Russian troops against civilians in liberated Ukrainian territory reminds us that there can be no lasting peace without justice.

On Feb. 24, 2022, the UN General Assembly voted by 141 to 7 for a “peace resolution” that reaffirmed global unity on the core principles at stake: A just and sustainable peace, based on sovereignty, territorial integrity and accountability.

Turning these words into concrete actions is our collective responsibility. This is why the world needs to establish a special international tribunal for the crime of aggression in Ukraine. President Putin and others in Russia’s leadership must be held accountable for their crimes, as Nazi Germany and imperial Japan leaders were tried at Nuremberg and Tokyo after World War II.

Such a move is a vital complement to the recent indictment of President Putin by the International Criminal Court for war crimes.

In May/June 2010, as secretary-general of the UN, I attended the Kampala Review Conference of the Rome Statute where a historic agreement was reached between states from all regions of the world on the definition of the crime of aggression.

More than a decade later, an act of aggression has been committed by a permanent member of the UN Security Council. It demands a unified, robust international response, demonstrating to the Russian leadership and autocrats everywhere that the fight against impunity supersedes geopolitical divides.

The ICC cannot prosecute the crime of aggression in Ukraine because Russia has not ratified its founding agreement, the Rome Statute, and the UN Security Council will not make a referral to the ICC given Russia’s veto power.

A special international tribunal can close this jurisdictional gap, focusing on the crime of aggression as the supreme international crime that encompasses all the acts and atrocities that flow from it.

Momentum for such a tribunal is building, with more states joining the core group that is working on accountability for Russia’s aggression, support from the European Union and the establishment of a new center for evidence on the crime of aggression in The Hague.

There is an active debate currently underway on the tribunal model that should be adopted. In my view, it will be most effective and legitimate if it can demonstrate broad international support, including from Asia, Africa and Latin America, through a UN General Assembly (UNGA) resolution recommending its establishment.

Some states, including those that publicly champion and defend the rules-based international order, may have reservations about the UNGA playing this kind of leadership role on accountability. Others may be concerned that the pursuit of justice could make peace less likely. But I have long believed that “peace versus justice” is a false choice, and that we must pursue both with equal vigor, in tandem.

I believe the best way to hold the top Russian leadership accountable is through the establishment of an international tribunal, based on international law and the Kampala definition of aggression as a leadership crime.

The main alternative being put forward – a hybrid Ukrainian/internationalized model based on Ukrainian law – risks being unable to overcome immunities, and could place undue pressure on the Ukrainian government. UN member states around the world should unite behind its efforts to work toward the UNGA-recommended international model.

At the Group of 20 Summit hosted by Indonesia in Bali in November 2022, leaders agreed in the final communique that “it is essential to uphold international law and the multilateral system that safeguards peace and stability. This includes defending all the purposes and principles enshrined in the Charter of the United Nations.”

President Putin, his ministers and generals have all shown their contempt for these values by their actions over the past year. The crime of aggression is, by definition, a leadership crime. This must be the focus of the international community. The individual responsibility of a political leader should not, however, induce the collective responsibility of a whole nation and affect international sporting or cultural exchanges.

An international tribunal would deliver on the shared responsibility of all UN member states to tackle impunity and defend the essence of the UN Charter. When this issue is put to the UNGA, as I believe it must be, I hope political leaders across the world, from Asia and Africa to Europe and the Americas, will rise to the moment. Endorsing this approach will be a decisive step towards a just and lasting peace in Ukraine and a victory in the battle against impunity.   *** The writer is former United Nations secretary-general and deputy chair of The Elders.

This article was published in thejakartapost.com with the title “The path to international tribunal on aggression in Ukraine must run through UNGA – Academia – The Jakarta Post”. Click to read: https://www.thejakartapost.com/opinion/2023/04/20/the-path-to-international-tribunal-on-aggression-in-ukraine-must-run-through-unga.html.

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