Curtis Ward | Support COE special tribunal on Russian aggression against Ukraine

The International Criminal Court (ICC), while having within its jurisdiction the crime of genocide, war crimes, crimes against humanity, and the “crime of aggression”, and has already issued an indictment against Russia’s president Vladimir Putin on war crimes violations, the ICC has not issued an indictment on the international crime of aggression.

The ICC explains the crime of aggression as “the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.” And that, “The act of aggression includes, among other things, invasion, military occupation and annexation by the use of force, blockade of the ports or coasts if it is considered being by its character, gravity and scale a manifest violation of the Charter of the United Nations.”

The “act of aggression” is committed by a person. Thus, the ICC could charge Russian President Vladimir Putin with aggression against Ukraine and holding him accountable. The United Nations General Assembly (UNGA) has already overwhelmingly agreed that violations of aggression have occurred by Russia’s illegal invasion and occupation of Ukraine.

Although the ICC has not indicted the Russian leader for his acts of aggression against Ukraine, the Council of Europe-Ukraine agreement to establish the Council of Europe’s (COE’s) Special Tribunal for the Crime of Aggression against Ukraine which targets Putin creates a new dynamic in accountability for acts of aggression and accountability for the crimes committed by Russia’s invasion of Ukraine.

By establishing this Special Tribunal, the international community plugs a gaping omission in the response of the ICC, which is perhaps constrained by international dynamics surrounding the Russia-Ukraine war, including Russia’s permanent membership in the UN Security Council. The COE’s landmark decision must be applauded and supported by the international community in support of accountability and justice for the people of Ukraine.

DISCOURAGES ROGUE LEADERS

This important action by the COE prospectively discourages other rogue leaders of powerful countries from engaging in aggression against weaker countries. It is a welcomed initiative for the enforcement of international criminal law, and a warning to leaders of powerful countries that the international community of law-abiding countries will seek to hold them personally accountable for violations of international criminal laws.

There are precedents holding leaders accountable. The UN Security Council responded to the genocides in Rwanda in 1994, and in Srebrenica during the Balkans wars of the 1990s, with the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), respectively, as well as to the atrocities in Sierra Leone (1991-2002) and the Khmer Rouge massacres in Cambodia (1970s) by establishing international and hybrid special tribunals to hold rogue leaders accountable.

The ICC was established as a permanent criminal court in part to ensure that rogue political and military leaders would be held accountable without the need for ad hoc tribunals. Resistance to the ICC’s jurisdiction by certain powerful countries has constrained its actions. The COE’s Special Tribunal, without similar constraints as a European entity with European jurisdiction rather than as an international court with global jurisdiction, specifically targets leaders of countries engaged in the illegal act of aggression in Europe and has a mandate to respond to aggression in this geographic space. Its action sends a warning to leaders of other countries that similar action could be taken by other regional groupings. Thus, no leader anywhere is above the law – international criminal law.

Caribbean governments should be onboard with the COE’s initiative and, either individually or collectively as CARICOM, express solidarity with the COE. There should be no equivocation or ambivalence among Caribbean leaders on this issue. Defending the sovereignty and territorial integrity of weaker States is their fight.

Caribbean leaders of the past would not sit out this issue. Our memories need refreshing. It was Jamaica’s Norman Manley as premier of Jamaica who imposed a trade boycott on apartheid South Africa, the second Commonwealth country to do so with India being the first. It was Jamaica’s Hugh Shearer who, in the UNGA in 1963, raised the issue of recognizing human rights with an International Day of Celebration, thus bringing the issue of human rights protection into focus.

INTERNATIONAL CRIMINAL COURT

It was Trinidad and Tobago’s A. N. R. Robinson, who in 1989 issued a call at the UNGA for the establishment of a permanent international criminal court to hold individuals accountable for their international criminal behaviour. Four Caribbean leaders – Michael Manley (Jamaica), Forbes Burnham (Guyana), Eric Williams (Trinidad and Tobago), and Errol Barrow (Barbados) – defied western powers by establishing diplomatic relations with Cuba (1972), and Manley who bucked international trend to establish diplomatic relations with China (1972).

Beginning with Norman Manley and continuing with Sir Alexander Bustamante’s open rejection of association with a South African leader at a Commonwealth Leaders’ Summit in London, and Jamaica’s continuing and unceasing leadership of global anti-apartheid advocacy helped lead to the demise of South Africa’s apartheid system.

At the dawn of this century, Jamaica’s P.J. Patterson used his diplomatic leverage for the UNGA to elect Jamaica to the UN Security Council dedicated to a mission to pursue an end to conflicts in Africa and elsewhere, and for the international community to increase humanitarian assistance and protection of civilians in armed conflict war-torn Africa and elsewhere, as well as for accountability for egregious war crimes – fully supporting the ICTR and ICTY, and the establishment of the Special Court on Sierra Leone during Jamaica’s term on the UN Security Council. It was under Patterson’s leadership and Jamaica’s presidency that the UN Security Council established the framework for donor countries assistance to developing countries’ counter-terrorism capacity building, following the 9/11 terrorist attacks on the United States.

The COE by targeting the political leader of Russia, a powerful permanent member of the UN Security Council which uses its veto power to avoid accountability, sets a new precedent – holding the untouchables accountable. The COE’s action has the effect of increasing protection of militarily weak and powerless countries in other parts of the world. Important benefits could accrue to countries around the world. It is not a panacea, and protection is not absolute but it sends a warning to powerful leaders of powerful countries, and, importantly, to rogue leaders of states with a military advantage over neighbouring states who engage in or threaten aggression to further a primarily domestic political agenda.

The threatened use of aggression by Venezuela’s Nicolàs Maduro against neighbouring Guyana, a member of CARICOM, should be impetus for Caribbean leaders to support the COE’s initiative. Hence the individual and collective responsibilities of Caribbean leaders to support the COE initiative. Success of this special tribunal is imperative for holding other aggressors accountable, including in Latin America and the Caribbean.

Curtis Ward is former ambassador of Jamaica to the United Nations, with special responsibility for Security Council affairs. Send feedback to columns@gleanerjm.com