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Ever since Russia’s full-scale invasion two years ago, discussions about the potential establishment of a Special Tribunal on the Crime of Aggression against Ukraine have been a source of massive international law commentary.
Ukraine has called for such a Tribunal and works with a Core Group of around 40 states, also known as the Friends of Accountability, to try to tease out the parameters of such a new body.
But it hasn’t been easy.
We’ve covered the variety of debates right from the beginning: Here’s the primer on how international law comes into play. And one on how The Hague is central to so much of this debate. An outline of the various roads to accountability. A year ago, the lobbying behind the scenes. And ICPA – the new center in The Hague trying to coordinate the potential evidence.
The need though for a special aggression tribunal comes down to the fact that, even though the International Criminal Court can deal with war crimes, crimes against humanity, even genocide, and can issue an arrest warrant against a Head of State, it can’t get involved over the crime of aggression in this case, even though it’s the fourth of the crimes listed in the Rome Statute. The way the aggression clauses have been worded provides cover for Russia, and indeed for most countries in the world minded to invade someone else’s territory. So there’s what the deputy minister calls an accountability gap, that a tribunal could help to fill.
But it would cause a precedent. Good, say some lawyers, bad, say some states. So even though aggression is an international crime in international law recognised as such at the United Nations, there’s no international place right now to deal with this case of aggression.
Stephanie also mentions the example of a state prosectuting on its own behalf connected with Russia/Ukraine, the MH17 case. We did a podcast a long time back about that, if you want to understand more.
Janet recently sat down with Lithuania’s Vice-Minister of Justice, Gabija Grigaitė-Daugirdė in Vilnius, because Lithuania is at the forefront of pushing this discussion forward to check in on what progress has been made towards the formation of a tribunal and to get some insights on whether there’s a chance of seeing something concrete soon.
This podcast has been produced as part of a partnership with JusticeInfo.net, an independent website in French and English covering justice initiatives in countries dealing with serious violence. It is a media outlet of Fondation Hirondelle, based in Lausanne, Switzerland
Our short, newsy justice updates
The International Court of Justice has not one, not two, but three requests for Advisory Opinions pending. It’s an unprecedented number for the court, which usually issues around one or two Advisory Opinions every ten years.
So what is an Advisory Opinion, why are there suddenly so many requests at the ICJ and why do they matter?
This week, friend of the pod and Courthouse News international law reporter Molly Quell takes over the Asymmetrical Haircuts hotseat and joins Stephanie and Janet for a deep dive into Advisory Opinions.
We get the 101 on what ICJ Advisory Opinions actually are with the help of Assistant Professor of International Human Rights Law at Trinity College DublinMichael Beckerand look at how the process works inside the court with ICJ legal officer Solveig Henry.
Molly also takes a look at the three pending Advisory Opinion requests. Two requested by the United Nations General Assembly, one on climate change and the other on Israel’s occupation of Palestinian territory. The third made by the International Labour Organization on the right to strike.
We hear from Margaretha Wewerinke-Singh, Associate Professor of Sustainability Law at Amsterdam Law School and Vanuatu’s lead counsel on the climate change case. Vanuatu is asking the ICJ to clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change.
Molly also speaks to Professor of Public Law, Keith Ewing of King’s College London, an employment law expert, who summarizes what’s at stake for the International Labour Organisation on the question of the right to strike.
She also gets comment from the Palestinian Foreign Affairs Minister Riyad al-Maliki on why an ICJ Advisory Opinion is important, given that Israel has ignored previous opinions.
And in this week’s recommendations, Molly points to one of her favourite cases, the numerous trials of former EU Health Commissioner John Daly, accused of an alleged fraud attempt involving a Swedish smokeless tobacco company. Molly also recommends the space western audio drama podcast Midst, which she has recently been enjoying.
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available transcripts
- Episode 45 – Karim Khan and UNITAD
- Episode 41 – Fatou Bensouda bows out at the ICC
- The Prosecutor Files: Robert Petit
- The Prosecutor Files: Fergal Gaynor
- The Prosecutor Files: Richard Roy
- Justice Update – The Heat is On
- Episode 7 – Justice via the backdoor with Kevin Jon Heller
- Episode 6 – Dogs of War with Iva Vukusic
- Episode 3 – Only human, judges at the ICC
- Episode 2 – It’s not about the money, says Lorraine Smith van Lin
- Episode 1 – Justice on the Cheap, with Celeste Hicks
- Episode 0 – Sharon Stone & the Haircut of International Justice