On July 3, 2023, the International Centre for the Prosecution of the Crime of Aggression Against Ukraine (ICPA) officially started operations at Eurojust, European Union Agency for Criminal Justice Cooperation, in The Hague, the Netherlands. The ICPA is to support the preparation of crime of aggression cases, by securing evidence and facilitating the process of case building at an early stage. The creation of the ICPA follows the ever-growing evidence of crimes perpetrated by Putin and his troops and the need to address the very crime that started it all – the crime of aggression when Putin launched a full-scale attack on Ukraine on February 24, 2022. In November 2022, the European Commission and the European External Action Service presented an analysis of the different options to ensure full accountability for the crimes committed in the context of the Russian war against Ukraine. In February 2023, the President of the European Commission Ursula von der Leyen announced the setting up of the ICPA during the 24th EU-Ukraine Summit.
Unidentified makeshift graves are seen at the Pishanske cemetery on September 23, 2022, in Izium, … [+]
While many of the crimes perpetrated by Putin and his troops are already being investigated and prosecuted, whether by domestic or international tribunals, the crime of aggression is yet to be addressed with comprehensive responses. While, for example, the International Criminal Court (ICC) has powers to investigate any acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine, it cannot exercise its jurisdiction with regard to the crime of aggression against Ukraine. This is as the act of aggression is committed by Russia, a state that is not a party to the Rome Statute. One option would be for the U.N. Security Council to refer the situation to the ICC. However, such an attempt would have been blocked by Russia, a permanent member of the U.N. Security Council with a veto right. As such, States and experts have been looking into other options to ensure that the mother of all crimes in Ukraine – the crime of aggression – does not escape accountability. Among others, experts have been looking into the options of establishing an ad-hoc tribunal to prosecute the crime. While this step is yet to be taken, the creation of the ICPA is a crucial step forward.
The ICPA is a judicial hub embedded in Eurojust to support national investigations into the crime of aggression related to the war in Ukraine. The ICPA enables independent prosecutors from different countries to work together, exchange evidence in a fast and efficient manner, and agree on a common investigative and prosecution strategy. In addition to Ukraine, five of the joint investigation team (JIT) members (Lithuania, Latvia, Estonia, Poland and Romania) are participating in the ICPA’s start-up phase. Further assistance is provided by the Office of the Prosecutor of the ICC and the United States-appointed Special Prosecutor for the Crime of Aggression.
The creation of ICPA and the level of assistance it is to receive, shows clearly that there is an enormous amount of political will to address Putin’s crime of aggression. As ICPA begins its work, it is crucial to explore how best the collected evidence could be used by domestic courts, or indeed, by an ad-hoc tribunal for the crime of aggression that is yet to be established. The international community must send a clear message that the crime of aggression will not enjoy impunity because of the limitations of the existing judicial mechanisms. Justice must prevail.