The International Centre for Prosecution for the Crime of Aggression Against Ukraine

The launch of the International Centre for Prosecution for the Crime of Aggression against Ukraine (ICPA) marks a key stage in efforts to establish a dedicated tribunal prosecute the Russian leadership. A spokesperson from the department for Combating Crimes Committed in Conditions of Armed Conflict, part of the Office of Ukraine’s Prosecutor General, told IWPR how the newly-established centre, based in the Hague, will support the coordination of global investigations.

What is the main goal of the newly-opened centre?

ICPA started its work on July 3, 2023 in the Hague. Ukrainian prosecutors have already started their work and representatives of the joint investigative group (JIG) from Lithuania, Latvia, Estonia, Poland and Romania will join the work of the ICPA at the initial stage. The US Special Prosecutor for the Crime of Aggression will also support the centre’s activities - other states and institutions will be able to join in the coming months.

The creation of ICPA is the first step towards the introduction of the Special Tribunal for the crime of aggression against Ukraine. Prosecutors from different countries will be able to cooperate daily in a single place, quickly and efficiently exchange evidence and agree on a joint strategy of investigation and prosecution.

The ICPA will facilitate the efficient preparation of cases and participate in any future prosecution for the crime of aggression, regardless of the jurisdiction to which the case will be brought.

Its main tasks will be ensuring the collection, preservation and analysis of evidence of aggression against Ukraine; ensuring proper cooperation between members of the JIG and other international partners in the investigation of aggression and other international crimes; and
building a case on aggression and sending indictments to national courts, including universal jurisdiction [as well as] hybrid court/international tribunals.

The ICPA includes prosecutors from Ukraine, the EU and the International Criminal Court (ICC). What are their fields of responsibility?

During the meeting of the General Prosecutors on March 25, 2022, Ukraine, Poland and Lithuania signed the agreement on the establishment of the JIG. Estonia, Latvia, Slovakia and Romania later joined as parties to the JIG. In addition, Eurojust and the office of the ICC Prosecutor joined the as participants. Therefore, the JIG consists of nine members.

The JIG serves as a legal basis for the joint collection of evidence and information, as well as their exchange between Ukrainian prosecutors and prosecutors of JIG member countries.

Evidence collected within the framework of JIG activities can be used for the purpose of prosecution, trial, restriction, liquidation of criminal structures, identification and confiscation of proceeds obtained through crime, identification and confiscation of assets that can be seized as part of criminal proceedings in order to provision of compensation for damage caused to victims of crimes, as well as possible confiscation of property as a form of punishment in JIG member states and third countries. The purpose of the participation of the ICC is to ensure the smooth coordination of investigations and prosecutions carried out by the parties to this agreement, in particular through the exchange of relevant information and evidence in accordance with the applicable legal framework.

Could you give more detail about what US involvement will include?

The basis for the activities of the US representative in the ICPA is the Memorandum of Understanding concluded in Lviv in March 2023 between the US Department of Justice and the Prosecutor General's Offices of the JIG member countries. Its purpose is to facilitate the proper support of investigations and prosecutions carried out by the relevant bodies of the JIG countries regarding potential war crimes and related criminal offences committed after or during the Russian Federation's invasion of Ukraine. In particular, to promote proper cooperation, coordination and elimination of conflict situations between relevant investigations in the establishment, detention and prosecution of the persons involved and other necessary assistance.

Ukrainian prosecutor general Andriy Kostin said the opening of the centre was a "clear signal that the world is united and unwavering on the path to holding the Russian regime accountable for all its crimes” and would help fill a "gaping hole in accountability for the crime of aggression". What does "this ‘gaping hole” mean?

The ICC's jurisdiction over the situation in Ukraine is limited to crimes of genocide, crimes against humanity and war crimes. Similarly, the ICC will not be able to exercise jurisdiction over the crime of aggression, in the event of a transfer of the situation by the UN Security Council on the basis of paragraph b) of article 13 of the Rome Statute of the ICC, since the Russian Federation as a permanent member will probably veto such a decision.

Responsibility for the crime of aggression is of paramount importance for the fight against impunity, since it was the aggressive war of the Russian Federation against Ukraine that led to the commission of other international crimes.

Therefore, the ad hoc Special Tribunal for the crime of aggression against Ukraine at the international level is the most appropriate for the goals the international community. In particular, it is a concrete, time-effective and specialised solution to end impunity for the most serious international crime.

Ukraine defends its position regarding the creation of an ad hoc Special Tribunal, which is supported by our international partners. As an example, there are two resolutions pending in the US Congress calling on the President to support the creation of a special tribunal to punish the crime of aggression against Ukraine, registered in the House of Representatives on January 31, 2023 and the Senate on May 31, 2023.

Therefore, it is safe to say that work in this direction is actively being carried out, the legal construction of the ad hoc Special Tribunal is becoming clearer, and we can hope that in the near future the final negotiations will be completed and its formation will begin.

The centre is expected to conduct an investigation and collect evidence as an intermediate step before the creation of a special tribunal for the Russian Federation. The EU stated that the ultimate goal was to bring to justice those responsible for the invasion of Ukraine. At what stage is the creation of a special tribunal now?

Negotiations are ongoing at the international level to involve as many countries as possible in the group of states that support the establishment of the Special Tribunal. Modalities regarding the nature and structure of the Special Tribunal are being discussed, but the best solution for Ukraine would be the creation of an international tribunal based on a UN General Assembly resolution authorising the UN Secretary General to sign agreements between the UN and Ukraine.

The process of bringing to justice the highest military-political leadership of the Russian Federation is long and difficult, but from the very beginning of the full-scale invasion, all possible national and international means have been used to achieve the goal. Thanks to the joint efforts of the prosecutors of the JIG member countries and the partners who help us, cases will be prepared which will later be transferred to the appropriate judicial institution.