Blogpost by Liliia Oprysk (Ukrainian in Norway and Associate Professor of Law, University of Bergen) and Terje Einarsen (Chairperson ICJ Norway and Professor of International Law, University of Bergen)
These days, there is a very important international discussion going on about the establishment of a special international tribunal for the greatest crime in Ukraine; the war of aggression. The debate has been ongoing since the Russian attack on Ukraine, but has now intensified. The Ukrainian authorities want an international court that can adjudicate the war of aggression against Ukraine and hold the Russian leadership accountable.
Norwegian media have so far shown little interest in whether Norway will support this initiative. Neither the Norwegian Broadcasting Corporation nor any of the major Norwegian newspapers (Aftenposten, VG, and Dagbladet) wanted to publish this article. This is perhaps somewhat striking in light of the general interest in the war in Ukraine and the desire to portray Norway as an important supporter of Ukraine.
Authoritarian regimes have an instrumental approach to law and justice. The Ukraine war is a school example. But it is not only Russia that has wanted the absence of enforceable liability rules. Until now, none of the major world powers of the UN Security Council have wanted effective limitations on the unlawful use of force.
Ideally, the Russian leadership should have known in advance that invasion of Ukraine would mean an immediate warrant for war of aggression at the permanent International Criminal Court (ICC) in The Hague. However, we do not know whether an expected arrest warrant would have prevented Putin from ordering the attack. Regardless, the preventive effect of a consistently implemented international criminal law should not be underestimated.
What is central here is that Putin could reasonably calculate that an arrest warrant would not come immediately. For although wars of aggression are punishable under international law, the ICC’s member states have imposed special conditions that make it almost impossible to prosecute a head of state for crimes of aggression. The Security Council may allow the ICC to bring charges for this crime against Ukraine regardless of the special conditions, but the veto power of Russia prevents this solution.
It would be best if the special conditions of the ICC statute were repealed so that crimes of aggression were on par with war crimes, crimes against humanity and genocide. But the five states with veto powers in the UN Security Council seem to have long agreed on only one thing: to thwart an effective ban on wars of aggression. Neither the United States, the United Kingdom, France, China nor Russia have acceded to the amendments on the crime of aggression, while it should be a reasonable requirement to have a seat on the Security Council, as advised by the International Commission of Jurists.
Norway has taken the same position as all the veto powers in the Security Council. In 2021 and this year, the Norwegian Parliament rejected ratifying the penal code against wars of aggression. This is despite the fact that most NATO countries and other European countries have ratified the amendments on the crime of aggression. This applies, for example, to Sweden, Finland and Iceland, the Baltic countries, Poland, Germany, the Netherlands, Belgium, Italy and Spain. The Norwegian Parliament has also said no to criminalising wars of aggression in the Norwegian Penal Code. An attack on Norway, for example a Russian attack on Northern Norway or Norwegian oil platforms, thus cannot be regarded as criminal aggression under Norwegian law. This is difficult to understand.
The ICC is currently investigating war crimes and crimes against humanity in Ukraine. This work should have already led to public prosecution of several people in the Russian leadership. So far, that hasn’t happened. In theory, nothing could prevent the ICC’s chief prosecutor from writing into a future indictment of Russian leaders for war crimes that the entire attack on Ukraine constitutes a crime of aggression. That would sharpen the responsibility and sentence in the event of a conviction for war crimes. It could also be pointed out in such an indictment that many of the Russian acts are terrorist acts under international law, regardless of whether they can be punished directly under the ICC statutes or not. But it is a major weakness that there is currently no possibility of a formal indictment at the ICC for the greatest crime against Ukraine, namely the crime of aggression. This despite the fact that it is much easier to prove responsibility for the Russian leadership for the entire war of aggression against Ukraine than for specific war crimes on the ground.
The proposal for a special criminal tribunal for Ukraine, inspired by the Nuremberg Tribunal and other international special courts, with the authority to impose the crime of aggression, is therefore both important and realistic. A special tribunal will address the need for justice and have a preventive effect. No state leader wants his name on an international arrest warrant. It is perfectly understandable that Ukraine wants an international special tribunal. History shows that national court settlements will often not be able to deal with the greatest crimes. A good example of this is the Norwegian criminal justice pursued after 8 May 1945, where the greatest crimes were missing: the German attack on Norway, the war crimes in Northern Norway and against Norwegian seafarers, but also Norwegian officials’ complicity in the crimes against the Jews and the crimes of Norwegian Nazis in Ukraine.
President Zelensky, the Ukrainian government and Ukrainian parliamentarians have asked the UN, European institutions and individual countries to declare support for the special tribunal. The proposal has been discussed by international experts. The Parliamentary Assembly of the Council of Europe (PACE) has followed up with a unanimous call for Member States to speed up the establishment of the tribunal. The EU Parliament supported the proposal as early as May 2022, while the EU presidency did the same in September. Nevertheless, there is still opposition to the proposal, including from important countries such as France, while it is more unclear what are the postions of the UK and the US today.
In August, Minister of Foreign Affairs, Anniken Huitfeldt, was asked in the Norwegian Parliament whether the Norwegian government will support the Ukrainian initiative. The answer was negative and quite paternalistic towards Ukrainians. This corresponds well with the Norwegian government’s unwillingness to hold state leaders accountable for the crime of aggression. At a UN meeting last week, “Law not War: A Special Tribunal for the Crime of Aggression,” the Norwegian representative was more vocal in expressing skepticism about the proposal than any other representative participating in the meeting.
Against this background, it is interesting that the Nobel Committee, in its justification for this year’s Peace Prize to the Ukrainian Center for Civil Liberties, pointed out that the organization wants Ukraine to join the ICC. We agree that Ukraine should do so and ratify the amendments on the crime of aggression. Despite the special conditions for the prosecution of this crime, the greatest possible support for criminalizing aggression is important under international law. Moreover, increased international support will speed up the repeal of the special conditions that only protect the leadership of the attacking state.
The head of the Center for Civil Liberties, Oleksandra Matviichuk, meanwhile, has given unequivocal support to a special tribunal, explaining why it is so important now:
Because when we develop additional mechanisms and hold perpetrators accountable, it will show other authoritarian leaders in the world that such behaviour is not tolerated anymore. Ukraine’s lessons can save people’s lives in other countries. […] I see a demand for peace. But the problem is that sustainable peace is not possible in our region without justice. The decades of Russian wars in different countries are proof of this: We need to achive justice, and then we will be able to have sustainable peace in our region, when we hold Russian perpetrators accountable.
Matviichuk repeated her message in The Guardian on October 26. The question is whether this hard-won experience reaches Norwegian politicians and journalists in the main media. Therefore, Norwegian academics and Norwegian civil society should contribute to an open debate on a special tribunal for the crime of aggression against Ukraine.
This is the English translation of an article published in Khrono, 3 November 2022. Translated by the authors.
Photo credits: Ihor OINUA via Unsplash