The discussion on the prospects of establishing an international tribunal for Russia’s war against Ukraine was held with the speakers Mr. dr. A. M. (Marieke) de Hoon, Associate Professor of International Criminal Law, University of Amsterdam; Prof. Dr. Larissa van den Herik, Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden University; and Dr. Gabija Grigaitė-Daugirdė, Deputy Minister of Justice of the Republic of Lithuania. It was moderated by Lina Strupinskienė, Associate Professor at the Institute of International Relations and Political Science in Vilnius University.
The Ambassador of the Kingdom of the Netherlands in Lithuania Jhr. drs. Jack R. Twiss Quarles van Ufford kicked off the discussion by championing the Ukrainian cause and commending the commitment of Lithuania and the Netherlands to hold Putin accountable for Russia’s invasion. He stressed the need to work on concrete legal solutions and implementations.
Prof. Herik brought up several challenges in prosecuting aggression: “First of all, the question of jurisdiction – the support of victim states prosecuting aggression has recently gained more support from the international community. There is also the leadership requirement to have credible prosecution and personal immunity, which now limits accountability.” Furthermore, Prof. Herik noted a divide among pro-accountability advocates between those who support a fully international and hybrid tribunal. To note, according to her, the tribunal should be established by examining previous tribunals.
The speakers also elaborated on the issue of in absentia, observing that it takes away the perception of legitimacy in the eyes of some states despite it not being illegal under international criminal law. “However, even if this situation is not ideal, in absentia proceedings are necessary to enact justice. Therefore, it is essential to get the support of the state and political organizations for such proceedings, so that the head of state immunity would be ignored,” argued Dr. Hoon.
Meanwhile, the Deputy Minister of Justice of the Republic of Lithuania noted a lack of precedent to follow in the Ukrainian case, therefore, a hybrid tribunal is unlikely. “To acquire legitimacy, a multilateral treaty is needed. The discussion of the hybrid model comes into question when the issue starts to be seen more geopolitically and less legally. If we have an international tribunal, there can be no trade-offs between justice and peace,” stated Dr. Grigaitė-Daugirdė.
On the issue of jurisdiction, Dr. Grigaitė-Daugirdė noted that national courts cannot pursue the crime of aggression because a national court cannot make such a determination. “The UN General Assembly has already acknowledged it [Russia’s war against Ukraine] as an act of aggression. The United Nations was created with a fundamental purpose to make sure that international security and peace is not breached, but in the case when it is, they have to make sure that it is also restored,” argued Deputy Minister of Justice of the Republic of Lithuania.
In the case of a hybrid tribunal, Dr. Grigaitė-Daugirdė noted that Ukraine will have to negotiate for financial and political support and, in the end, still have to go to the UN General Assembly for a resolution after the establishment: “In other words, only a UN General Assembly resolution would create international legitimacy. Furthermore, fortunately, international law has improved drastically and shows some positive developments, such as the arrest warrant for Putin by the ICC”.
The event was organised in cooperation with the Embassy of the Kingdom of the Netherlands in Lithuania in the framework of the project Foreign and Security Conference.