International Conference on the Special Tribunal for the Crime of Aggression against Ukraine
Panel 1: The modality of the Tribunal: UN, international treaty, hybrid format. Which one to choose?
Delivered by H.E. Mr Rein Tammsaar, Permanent Representative of Estonia to the UN (virtually)
21 August 2023, Kyiv
Thank you very much for your kind invitation, which I take as a recognition of my country´s position and my own humble efforts in New York, in advocating for the establishment of a special international tribunal for the crime of aggression against Ukraine. I am honoured to be a part of this important discussion although I regret I´m not able to be in Kyiv with you in person.
- Let me start with the historic perspective and national context. The lasting peace after WWII was not “just” for Estonia and for numerous other countries because for us, a decades-long brutal Soviet occupation, mass executions, deportations, colonialization, and forced russification followed. Russia´s aggression against Ukraine is a direct result of atrocity crimes committed by the Soviet Union before, during and after WWII that went unpunished. There was never a Nuremberg Tribunal for communist ideology or Soviet totalitarian crimes. Impunity in the past always leads to new crimes. We need to end this vicious circle and a new Russian aggression opened up a tragic window of opportunity to do so.
- The main goal of the Russia´s full-fledged aggression against Ukraine remains the same: to exterminate Ukrainian nation and to erase a sovereign state of Ukraine from the map. Kremlin is obsessed with swallowing Ukraine piece by piece and with the restoration of its former imperial grandeur. This aggression is therefore not a mistake or miscalculation but a conscious and rational decision by Kremlin. It also seems a rather logical step after we failed to react decisively to Russia´s war against Georgia, to the annexation of Crimea and blocked Ukraine´s NATO membership in Bucharest. Our indecisiveness, slowness and a paralysing fear of escalation are still providing Putin´s regime with oxygen needed to continue his deadly war. Our fear of the establishment of the international tribunal falls into the same category.
- The fact is that Kremlin’s neo-imperial and neo-colonial behavioural pattern of actions is blatantly violating the core principles of the UN Charter. This has been affirmed by the UN General Assembly several times now. Crime of aggression is a concern of international community as a whole, not just of Ukraine or Europe because this war has global consequences and it goes against the international legal order, with the UN at its core. So we should act collectively to preserve the authority and relevance of the UN Charter, otherwise a Hobessian world would be quick to be reinstated.
- The crime of aggression is a leadership crime. We should not allow Putin and his henchmen to hide in a judicial loophole because the ICC does not have jurisdiction and the UN Security Council will never refer this case to the ICC because of a Russian veto. This is exactly why neither a hybrid nor an internationalized national model would ever work. Why establish a hybrid tribunal that will never be able to overcome immunities and therefore never be able to actually bring real justice? We should do both: work to expand the ICC jurisdiction in the long run and establish a special tribunal for the crime of aggression through the UN General Assembly, as soon as we can, because people are dying as we speak at the orders of the Kremlin’s top men. We need to send the strongest possible political signal that the crime of aggression will never pay off. This would also serve as a credible deterrence against all other potential aggressors.
- Ukrainians are paying in heavy blood for our delayed decision to establish a tribunal that can actually try the real culprits of the aggression. The tribunal should not be taken a hostage of the empty hope that genuine negotiations with a war criminal obsessed with Ukraine would ever be a realistic possibility. Besides, as we all know very well, the hybrid tribunal cannot be established according to the current Ukrainian Constitution which cannot be amended during the war.
- Some claim that States should not move forward because it will be difficult to gather enough votes at the General Assembly. To remind – we need two thirds of the votes of countries present and voting at the General Assembly. It´s doable, for sure. And after all, why would a hybrid model ever get more votes than an international model? This makes no sense to me. Let me assure you that in my private conversations and during our numerous information briefings in New York for the wider UN membership, there has been no straightforward rejection of the idea of an international tribunal. To the contrary, when it comes to accountability in order to preserve the current legal order with the UN and the Charter at its core, countries have been supportive.
- In addition, when talking about the hybrid, keep in mind that it is highly likely that Russia will try to establish a replica tribunals in response to the hybrid model and argue that a similar tribunal would need to be established for Iraq, Libya, Afghanistan, etc. This is just another reason to go through the General Assembly as only the UN General Assembly would provide sufficient international legitimacy and would make the international tribunal immune against the Russian propaganda and hybrid actions.
Finally, I am profoundly convinced that a tribunal based on an agreement between Ukraine and the UN Secretary General, endorsed by the General Assembly, would be the right thing to do from a legal, moral and political point of view. The only thing missing is a political will. I believe that we can still make sure that justice will be assured and the international law will prevail. Maybe sending a letter to the UN Secretary General, requesting the establishment of the International Tribunal can create the much needed momentum in New York. This would maybe also help our closest allies and partners to find a political will to support holding accountable the real masterminds of the Russian aggression against Ukraine.
I thank you.