The Council of Europe, of which Russia is no longer a member, has decided to create an international criminal tribunal to try Russian crimes in Ukraine. As a matter of fact, neither Russia nor Ukraine are members of the current International Criminal Court.

☞ As this tribunal will never be endorsed by the United Nations, it will only represent the Council of Europe and the Council of Europe alone.

• The Committee on Legal Affairs and Human Rights, meeting on 13 May in Paris, reaffirmed its conclusions on the “war of aggression of the Russian Federation against Ukraine”. It said that certain fundamental principles of international law, such as the inviolability of borders and the non-recognition of territorial acquisitions resulting from the use of force, “should not be set aside in ongoing or future peace negotiations.”

Among these legal considerations, the committee affirms in particular that the Russian war against Ukraine constitutes an act of aggression in violation of Article 2-4 of the United Nations’ Charter, and that Ukraine is exercising its inherent right to self-defense in accordance with Article 51 of the same Charter. It also added that the illegal annexation of Crimea and other Ukrainian territories temporarily occupied by Russia could not be recognized.

☞ The Council of Europe does not take into account UN Security Council Resolution 2202. This endorses the Minsk agreements and states that Germany, France and Russia are guarantors of them. Considering that Germany and France were not intervening, Russia launched a special military operation (not a war) to implement this Security Council resolution. Former German Chancellor Angela Merkel and former French President Francois Hollande later said they had never intended to implement the agreements, but only to buy time to arm Ukrainian forces [1].

• In addition, the draft resolution adopted by the committee, on the basis of the report by Eerik-Niiles Kross (Estonia, ALDE), underlines that the political and military leaders of Russia, Belarus and North Korea have committed a crime of aggression against Ukraine, which entails the individual criminal responsibility of the leaders concerned, including the Heads of State and Government.

☞ The armies of Belarus and North Korea have never intervened within Ukraine’s internationally recognized borders, but it did participate in Russian military operations on its own territory, especially during the [Ukrainian] invasion of Kursk.

• The draft resolution also specifies that the multiple attacks and atrocities committed by Russian forces and their allies against Ukraine and its people “constitute war crimes, including serious violations of the Geneva Conventions and international humanitarian law, as well as crimes against humanity when perpetrated as part of a widespread and systematic attack against the civilian population”. “None of these crimes can be subject to any form of amnesty or statute of limitations under international law,” the parliamentarians said.

• According to the committee, Russia “must face the legal consequences of all internationally wrongful acts it has committed in and against Ukraine”, including by making reparation for all the damage caused by these acts to Ukraine and its people. In this context, it underlined the essential role of the Register of Damage for Ukraine, established under the auspices of the Council of Europe, as the first operational element of an international compensation mechanism.

• The European Court of Human Rights, which is part of the Council of Europe, is the only international court that adjudicates on human rights violations in the context of Russia’s “war of aggression against Ukraine”.

• “The member States have chosen to establish the Special Court within the framework of the Council of Europe. It is now up to them to follow through on the political will they have expressed. The funding of the Tribunal must also be secured. The path ahead of us is that of justice, and it must prevail,” said Secretary General Alain Berset on 14 May.

This is the editorial from our paywalled “Voltaire, international newsletter”, n°135. For more information, do not hesitate to subscribe: 500€ per year.