FORMER Ireland President Mary Robinson wants to overcome a jurisdictional gap so that Vladimir Putin can be investigated for an alleged crime of aggression and held to account for the invasion of Ukraine’s sovereign territory.
The International Criminal Court (ICC) has opened an investigation into alleged war crimes, crimes against humanity or genocide committed by all parties in Ukraine.
However, it is unable to investigate any alleged crime of aggression involving Russia as neither Ukraine nor the Russian Federation are a State Party to the Rome Statute.
The crime of aggression refers to the planning or execution, by a political or military leader, of acts of aggression in violation of the UN Charter, such as an invasion, occupation or annexation by force.
Now, The Elders, an independent group of global leaders chaired by Robinson, has proposed a 'hybrid tribunal' to overcome this obstacle.
Inaction will see 'further violations'
"Failure to hold President Putin accountable for his aggression against Ukraine will further undermine the rules-based international order," said Robinson, the former UN High Commissioner for Human Rights.
"If we allow crimes of aggression to go unchallenged, we are likely to see further violations, and a continuing breakdown of the peace and security the UN was set up to protect.
“The international community must explore all options available to ensure accountability and justice."
The ICC was able to open its investigation after Ukraine exercised its prerogatives to legally accept the ICC's jurisdiction over alleged crimes under the Rome Statute.
However, the crime of aggression has a unique jurisdictional regime, separate to the other Rome Statute crimes.
The ICC can investigate a crime of aggression involving non-State Parties if a referral is made by the UN Security Council, however the Russian Federation can veto any council decisions, effectively ruling out this option.
To overcome this, The Elders have proposed a new 'hybrid tribunal'.
Precedents
"A new international or hybrid tribunal mandated to investigate and prosecute the alleged crime of aggression in Ukraine could address this gap," read a statement from The Elders.
"There are various precedents to draw on for setting up such a tribunal, which should be complementary to other proceedings.
"Evidence-gathering should begin immediately, and could be done through an independent investigation that can start before the detailed model for a tribunal is agreed."
'Take all measures necessary'
Zeid Raad Al Hussein, a member of The Elders and former UN High Commissioner for Human Rights, said the move would help towards 'ending impunity'.
"The international community has a responsibility to come together to take all measures necessary to restore and maintain global peace and security, particularly when the UN Security Council is unable to act," he said.
"A criminal tribunal to investigate and prosecute the alleged crime of aggression in Ukraine would be a crucial step forward towards ending impunity.
"I encourage governments to respond to the Ukrainian Government's request for support on this issue, and urgently engage to find a way forward.
"We must act collectively to defend the rules that underpin our common security, and hold to account those who violate them."
