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Geraint Davies (in the Chair)
I call Richard Foord; it is a happy coincidence that I am wearing this blue and yellow tie.
Richard Foord (Tiverton and Honiton) (LD)
I beg to move,
That this House has considered the potential merits of a special tribunal on Ukraine.
It is an honour to serve under your chairship, Mr Davies.
It has become a cliché for politicians across the House to refer to “Putin’s illegal invasion of Ukraine”. Today we should unpick that phrase a little so that we can consider how states such as the UK might respond to the full-scale invasion, aside from our ongoing provision of materiel to Ukraine. I would like to spend a few minutes talking about the crime of aggression, and I intend to set out why accountability for that crime should be sought by way of a special tribunal.
Last September, along with a few other Members of the House, some of whom are here today, I attended the Yalta European Strategy conference in Kyiv; I refer to my entry in the Register of Members’ Financial Interests. The Yalta European Strategy conference brings together politicians, academics and others from across Europe to discuss Ukrainian and European security—we also remembered a time, back in 2013, when the same conference was held in Yalta, Crimea. But talk to historians about Yalta and they are more likely to think of the conference that took place between the UK, the US and the Soviet Union in February 1945, which President Roosevelt approached with an aide-mémoire on the punishment of Nazi war criminals. The Yalta memorandum urged the use of the judicial method against the Nazi leaders because
“Condemnation of these criminals after a trial…would command maximum public support in our own times and receive the respect of history.”
The first international military tribunal at Nuremberg opened in November 1945. Major-General Nikitchenko from the Soviet Union was the presiding judge. He came from a small village about 50 miles from the border between Russia and Luhansk, and was reported to have said in the days before the opening of the trial:
“If the judge is supposed to be impartial, it would only lead to unnecessary delays.”
Thankfully, other parties to the international military tribunal disagreed with him and due process was followed. The London charter of the international military tribunal set the laws and procedures for the conduct of the Nuremberg trials, and they defined three categories of crime: war crimes, crimes against humanity and—the closest to aggression—crimes against peace.
A special tribunal for alleged aggression against Ukraine would be the first aggression-focused tribunal since Nuremberg and Tokyo, which prosecuted the leaders of axis powers after world war two for crimes against peace. These days, there are courts and tribunals that have jurisdiction over war crimes, crimes against humanity and allegations of genocide, and they include the International Criminal Court. However, there is no international body before which individuals may be tried for the crime of aggression, because the ICC cannot exercise jurisdiction over the crime of aggression unless both the victim state and the aggressor state have ratified and accepted the ICC’s jurisdiction over aggression. That is not the case for Ukraine, Belarus and Russia. Russia is not a party to the ICC, and referrals to the ICC by the UN Security Council would be vetoed by Russia.
On 17 March 2023, the ICC issued an arrest warrant for Vladimir Putin for the war crime of illegal deportation of children from Ukraine to Russia. Although that was very welcome, it starts a process that can run in parallel with the initiative to create a special tribunal. It does not change the fact that there is currently no international body before which those responsible for the crime of aggression can be brought from Russia or Belarus. Various acts of aggression can be traced back to the February 2022 full-scale invasion. If proven in court, those acts of aggression could constitute what the Nuremberg trials termed the “supreme international crime”.
A crime of aggression consists of
“the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of an aggression.”
That can include manifestly illegal acts of aggression such as invasion, attack or occupation. It is the crime of aggression from which other international crimes flow, including war crimes, crimes against humanity and genocide.
Bluntly, the videos circulating on social media in recent weeks of the apparent beheading, allegedly by Russians, of a Ukrainian soldier who was still alive show an atrocious act that was unlikely to have happened in the absence of the original aggression. A special tribunal would be the surest route by which to try the Russian leaders for international crimes. Trying senior leaders for war crimes, crimes against humanity or genocide is difficult. It is difficult to link the crimes committed by soldiers on the ground, who might be ill disciplined, to senior military or political figures, who are often well aware of the risk of having crimes attributed to them. No, a special tribunal would focus on the single crime with respect to a narrow clique of perpetrators.
Russia’s use of force against a sovereign state constitutes an illegal act of aggression. It was not authorised by the UN Security Council. It was not an act of self-defence. Aggression is considered a leadership crime. Those exercising control over or directing political or military action with respect to the acts commit the crime of aggression.
Russia is not ignorant of the UN definition of aggression. At a meeting of the UN Security Council in March 1999, during the NATO bombardment of Yugoslavia, Russia’s Foreign Minister, Sergei Lavrov, quoted the 1974 UN General Assembly resolution that defined aggression. Mr Lavrov said:
“No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”
The UK Government announced in January that they are joining a core group of partners to shape thinking on how to ensure criminal accountability for Russia’s aggression against Ukraine. Three primary models for a special tribunal have emerged, and I will outline those briefly. The first option is a tribunal that would be based on a multilateral treaty involving Ukraine and those states willing to support it; that is how the international military tribunal at Nuremberg was set up. It would be a strictly international tribunal—these days set up, perhaps, on the recommendation of the European Union or the Council of Europe through a treaty with Ukraine.
The second option is establishing a free-standing tribunal that would be based on an agreement between Ukraine and the UN. We could pursue endorsement through a resolution of the UN General Assembly. Precedents include tribunals established by agreements between the UN and Sierra Leone.
The third option is creating a special hybrid tribunal that would be based on Ukrainian domestic law, but which would incorporate international elements. The UK Government appear to have supported that third option. Yes, such a tribunal could be created without an international agreement and without statute, without applying strictly international law, and without using significant international prosecutors or judges. However, a tribunal based on Ukrainian domestic law would face various problems. It would be difficult to overcome immunities for key senior leaders in Russia and in Belarus. Ukrainians argue that establishing such a tribunal would not be possible given the domestic constitutional changes required of the Ukrainian Parliament. However, to my mind the main objection to a hybrid tribunal is that other states might feel emboldened to create their own hybrid tribunals in the future, which would have little or no significant international support. The hybrid model is too easy to replicate, unlike a strictly international tribunal.
We also know that Ukraine itself does not support the so-called hybrid model. Last week, President Zelensky called for the creation of a special tribunal in The Hague. Let me quote Zelensky’s Netherlands speech of 4 May:
“Not hybrid promises instead of human rights, but real freedom. Not hybrid impunity and symbolic formalities, but full-scale justice. Not hybrid peace and constant flashes of violence on the frontline, but reliable peace.”
The international nature of a special tribunal would serve to flag a degree of impartiality for the special tribunal. It would more easily overcome issues relating to immunity for serving Heads of State and Governments.
Setting up a special tribunal is alleged by some to risk sending a message that the west’s goal is regime change in Moscow. I do not accept that the call for a special tribunal is somehow tantamount to signalling an interest in regime change. At no point have Ukraine’s allies suggested that we are seeking regime change in Moscow. Kremlin propagandists are already depicting NATO as seeking to threaten Russia’s existence, to tie in with Russia’s victory day today, 9 May—the commemorations of the Soviet Union’s contribution to the defeat of Nazi Germany. The Kremlin is already considering that its options are to win, or to lose power and then face prosecution. I do not accept that the model that the UK proposes for the special tribunal will affect Russia’s suggestion that we seek regime change. We do not.
How to go about creating a special tribunal? The Foreign Ministers of the G7 said in a statement in April, just a few weeks ago:
“We support exploring the creation of an internationalized tribunal based in Ukraine’s judicial system to prosecute the crime of aggression”.
Solidarity across the countries allied with Ukraine is absolutely crucial at this time. Just as the UK has firmed up opinion among Ukraine’s partners in relation to providing equipment to Ukraine, it would be good to see the UK championing the special tribunal cause, which should be as international in character as possible. A special tribunal would signal the disregard in which aggressor states are held. Support for the special tribunal could give aggressors pause for thought in the future.
The late Paddy Ashdown visited Slobodan Milošević several weeks before NATO military action against Belgrade in 1999. Ashdown commented that Milošević
“seemed more frightened by the threat of indictment by the International Criminal Tribunal for the Former Yugoslavia, than … of NATO bombing”.
Writing in a more idealistic era, he wrote:
“these new courts and tribunals which the world has established in recent years…have the potential to become instruments not only for justice, but also for prevention, since they can represent a … warning to belligerent or tyrannical leaders.”
Thank you, Mr Davies.
Geraint Davies (in the Chair)
I remind Members that if they want to participate, they will need to bob.
Jim Shannon (Strangford) (DUP)
It is a real pleasure to speak in the debate, and I thank the hon. Member for Tiverton and Honiton (Richard Foord) for setting the scene so well. I was happy that he asked the Backbench Business Committee for the debate, and to support him in that, and it is good that we are having it today. What will be more important is if this debate leads to the action that the hon. Gentleman has referred to. I hope that it will.
I join all hon. Members in the Chamber in stating our ongoing and unwavering support for the Ukrainian people at this time. The attendance of Olena Zelenska at the coronation was a timely reminder that, while it was right and proper that we celebrate the passing of the Crown in this way, the problems of the world continue and so do our responsibilities to address them where we can. I believe that one of those responsibilities is to hold Russia to account for its aggression.
For too many years, Russia has pushed the boundaries and, in the desire for peace, little has been said or done to remind it that there is a line that should not be crossed. That line was crossed last March when Russia invaded Ukraine. It was crossed whenever Russia invaded Crimea. I am always reminded of the hon. Member for Rhondda (Sir Chris Bryant)—he is not here today, but he was one of the outspoken Members at that time who highlighted the importance of what was happening in Ukraine. I agreed with him that we should have taken action to support Ukraine. We did not, but certainly the United Kingdom Government, NATO, the United States and everyone else has now come in and supported Ukraine, and that is really good news.
We continue to see the boundary being pushed further, as Russia’s media machine, ably assisted by its allies in North Korea, Belarus, Eritrea and Syria, seeks to spin the war as a noble endeavour and the rape and destruction of Ukraine as a simple casualty of war. It is more than that. That is not the truth at all. The truth is that this war is a violation of peace and should be internationally recognised as such; the hon. Member for Tiverton and Honiton set that point out very well. For that reason, and because each time I see on TV women and children standing by as their homes and future are decimated due to the greed of Russia, my resolve hardens. I was watching that on TV this morning. The hon. Gentleman referred to the missile attack on Kyiv and across all of Ukraine. It is obvious that Russia is, again, hitting civilian targets, and that really grieves me.
Another thing that grieves me greatly is the indiscriminate attacks by Russian soldiers on innocent civilians and the sexual abuse and rape of women and girls. The evidential base is there in some quantity, regarding girls as young as four and women as old as 83. How can that be the world that we live in, where there is no respect for women and young girls? That grieves me.
I would love to see Russia being made accountable in the courts, wherever that may be. The hon. Gentleman asks for that; I ask for that. As a Christian, I am also minded that, while the perpetrators might escape justice in this world, they certainly will not escape justice in the next. They will burn in the fires of hell. I would like to see that happening sooner than it is happening at the present time.
I was delighted to see our Government acknowledging that a special tribunal is a possibility; I would like to see it become more than a possibility. However, for it to become reality, the idea must be driven by all the nations, including ourselves, and not simply be bandied about as a matter of words.
I was very happy to see our UK Government announcing their membership of the core group of states seeking to achieve criminal accountability in this situation. However, that acknowledgement must be followed by action. The Minister is a good Minister, and he always responds in a very positive way; when he responds today, I am hoping he will reinforce our requests to have the words become action. That is certainly what I and others wish to see.
The crime of aggression is, first and foremost, a violation of international law’s prohibition of the use of force. Article 2 of the UN charter proscribes the use of force, subject to narrow exceptions. The UN General Assembly definition of aggression, in article 5, states:
“A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.”
We all know that Russia has been guilty of a crime against international peace and against the innocent peoples of Ukraine. The UN General Assembly definition further states:
“No territorial acquisition or special advantage resulting from aggression is or shall be recognised as lawful.”
It is very clear what the words say. If those words say that, our Government need to make sure that we have the law in place to make those people accountable, and to make Russia accountable.
The prohibition is given teeth by imposing criminal liability on individuals responsible for significant breaches of it. There have been many. It is very pleasing to see Ukraine, President Zelensky and others gathering evidence that will convict people when the opportunity arises. It is clear that the definition is absolutely applicable to the action taken by Russia against Ukraine.
Although I recognise the Government’s position that any new tribunal would also need sufficient international support and must not undermine existing accountability mechanisms, some available options do allow for that. I urge that we make our position clear and, further, that we begin the actions of making this a reality.
The United Kingdom cannot do this on our own—our Government cannot do this on their own. They can do it with the help of the EU states and the fellow members of NATO, of the United States of America and those countries from other parts of the world who have also lent their support to Ukraine. There is a united body that wants to see the accountability process in place. There is a body of countries who want to see a special tribunal for Ukraine in place for the actions of those in Russia who have carried out despicable crimes.
I gently say to the Minister that the upshot of today’s debate should not be simply another resounding message of support for Ukraine. It should be the taking of the action spoken about by the hon. Member for Tiverton and Honiton and this crime of aggression being processed as such. The world must quickly recognise that these actions will not be ignored and that the perpetrators will be held accountable—that includes President Putin, the generals and every soldier who carried out the acts.
In conclusion, the support that we lend Ukraine through weapons and aid is essential. We do it well. I commend previous Prime Ministers, the present Prime Minister and our Government for what they have done in galvanising support across the world to help Ukraine. We need to stand up against evil actions in law, and today’s debate should be the first step. I very much support what the hon. Member for Tiverton and Honiton has said.
Geraint Davies (in the Chair)
I invite John Howell to speak next—my colleague at the Parliamentary Assembly of the Council of Europe, which does so much on human rights and the rule of law. In fact, he is the leader of our delegation.
John Howell (Henley) (Con)
It is a pleasure to serve under your chairmanship, Mr Davies. This is an interesting subject, and an appropriate time to raise it. In just under two weeks’ time, a summit of the Council of Europe takes place in Reykjavík. It is only the fourth summit in the history of the Council. High on the agenda is Ukraine.
We have two issues. The first is how we can deal with crimes against humanity. As we have heard, that is already taken care of; there is an established precedent for that. The second is how we can deal with crimes of aggression. We heard some examples of how crimes of aggression can be dealt with, but the problem is that none of those precedents can be transposed on to the situation in Ukraine. It is legitimate to point out that there are substantial differences between the situation at hand and those precedents. Much caution is required even in drawing analogies between how those tribunals ran and how they can be set up now.
One organisation above all—this will gladden your heart, Mr Davies—is able to take this role. It is not the UN, from which it is almost impossible to believe that there will be an agreement to take this forward. It is the Council of Europe. The Council has already committed to going for a tribunal of aggression, both at the level of the Parliamentary Assembly and at the level of the Committee of Ministers, which is the equivalent of a second Chamber to the Assembly.
It is perfectly legitimate to point out that national defence does not fall within the normal scope of the Council of Europe, which has long stated that it is not a defence organisation. However, the Council has on a number of occasions expressed itself on Ukraine, and has said that it wants to help the situation there. With your permission, Mr Davies, I will reaffirm a number of those statements. First, the Council of Europe has reaffirmed the need for a strong and unequivocal international legal response to the aggression against Ukraine. It has already said that aggression is a crime, and we need to deal with it. It permits no place for impunity for serious violations of international law. Secondly, the Council has stressed the urgent need to ensure a comprehensive system of accountability for serious violations of international law arising out of the Russian aggression. I will come back to that and give a suggestion on it.
The Council has noted with great interest the Ukrainian proposals to establish an ad hoc special tribunal for the crime of aggression against Ukraine, subject to what will be decided at the Reykjavík summit. Thirdly, the Council welcomed ongoing efforts, in co-operation with Ukraine, to secure accountability for the crime of aggression against Ukraine, and to secure full reparations for the damage, loss or injury caused by Russia’s violations of international law in Ukraine. Those ideas of accountability and full reparations are crucial to what the Council summit will be able to decide.
The Council of Europe is looking to set up a register of goods and buildings destroyed by the Russians during their war of aggression. One may think, “Why is a register necessary?” It is necessary, first of all, so that we can work out the scale of reparations. We cannot pluck a figure for reparations out of the air; it must be based on actual evidence. The Council of Europe stresses very much the need for accountability, which is why it thinks that a tribunal is a good idea.
The summit will be attended by a very senior member of the Government. Representatives of leading countries are going, including President Macron and the President of Germany; the President and Prime Minister of Iceland will be there as well. The summit will cover setting up that register, the ability to deal with reparations, and the accountability of Putin. I read a legal treatise that says that the Council of Europe is perfectly legitimately set up to deal with matters within the prism of accountability for the commission of an international crime, and with the crime of aggression. That is not outside the Council of Europe’s scope. That means that the Council would not be acting ultra vires in concluding an agreement with Ukraine for the creation of such a tribunal. That is an important note on which to finish my comments.
Geraint Davies (in the Chair)
Thank you so much, John Howell, in particular for the reference to the upcoming Reykjavík Council of Europe summit.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
It is good to see you in the Chair, Mr Davies. I thank the hon. Member for Tiverton and Honiton (Richard Foord) for securing this debate on an issue of vital importance, not only to achieving natural justice for the people of Ukraine, but to ensuring that crimes of aggression, such as those committed by Vladimir Putin and his regime, are not without consequences. Regardless of what we think of any sort of international order or universal values, that sort of barbarism is not to be tolerated. I am glad to say that I think that feeling is shared by Members from across the House, by people across the islands of the north Atlantic, and certainly by my colleagues in the Scottish National party. Our members unanimously passed a resolution at our conference last year calling for exactly that sort of action to be taken against this aggressor, who has caused so much pain and suffering to people with whom he has claimed fraternity.
We have heard all too often, including this morning, that there is one obvious stumbling block to establishing a tribunal: the lack of a suitable venue. To be blunt, with the United Nations and even the International Criminal Court unlikely to accept the case for what some would call crushingly cynical political reasons, it would be a test of judicial dexterity to ensure accountability.
I was glad to hear the hon. Members for Strangford (Jim Shannon), and for Henley (John Howell), mention the Council of Europe as a venue. The hon. Member for Tiverton and Honiton mentioned the requirement for more dexterity in the legal process. I am mindful of the agreement between the UK and the former Libyan regime, which allowed a sitting of the High Court of Justiciary in the Netherlands. It had special jurisdiction over other territories; that was based on Security Council resolution 1192. That agreement allowed what was then the highest court of Scotland to sit in another country to bring about the conviction of the Libyan bomber. The difficulty of going through the UN in this case is that the Russian Federation would veto that.
It is important and appropriate to acknowledge the work of the investigators on the ground in recording the crimes perpetrated by the Russian Federation, whether they are domestic or international law-and-order units or ordinary Ukrainian people. Their ability to carry out such an exacting job in the face of demonstrable and abject horror needs to be commended. Any international tribunal will rely on their work, and they know that. I imagine that, in any circumstances, that is what keeps them going.
Those of us who grew up with those who remembered the horrors of the second world war did not think we would ever be in such a position again. I grew up with a father who was a first-hand witness to one of the largest Nazi atrocities imposed on a civilian population during the second world war, namely the Clydebank blitz. The idea that, in an age of smart munitions, civilians would continue to be targeted so indiscriminately is unfathomable, yet there is a litany of reports, often accompanied by heartbreaking images, of targeting of residential areas of no military value. It could be no clearer that these atrocities are happening nearly daily. There can be no question but that my party and I welcome the Foreign Secretary’s commitment to joining the core group set up to further investigate avenues. I look forward to hearing what the Minister has to say on that point, and any other commitments that the Government can give. It is important that we challenge ourselves.
I appreciate the possibility of creating a precedent for the further investigation of possible war crimes committed by other countries, even the UK. Many would note that that would probably include places such as Iraq. I marched against that conflict for many reasons, and the precedent it set was clear to me at the time. No one in this place should shy away from ensuring that justice is done, whenever and wherever. I hope that when colleagues sum up, they will echo my sentiments.
There are those who say that in laying the foundations for such a tribunal, we close off the potential for a negotiated settlement in Ukraine, because Putin will not agree to terms that see him come before this tribunal. I understand that rationale, but I simply cannot see any alternative in the face of such evildoing. The idea has not stopped him planning to travel abroad, whether to occupied Mariupol or even South Africa. After the failure to take Kyiv within 72 hours, I do not think he was in any doubt that there would be no return to the status quo ante. Either Putin will be removed by an internal opponent, of which there are increasing numbers, or he will face justice for his crimes in Ukraine. I hope he faces justice.
I finish by reiterating my party’s unwavering support for the establishment of an international tribunal that will ensure accountability for the litany of crimes committed by the Russian Federation in Ukraine. I hope to see not only the liberation of all regions of Ukraine under occupation, but justice for those who have suffered.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairpersonship, Mr Davies. You are wearing an excellent tie; there are a number of good ties on display. I thank the hon. and gallant Member for Tiverton and Honiton (Richard Foord) for securing this critical debate, and thank all colleagues for their valuable and insightful contributions. I also declare an interest: I travelled on the same trip to Ukraine as him. It gave us a huge insight into the reality of the devastation of Putin’s brutal actions against the civilians and people of Ukraine.
Over the weekend, we came together in this country to celebrate the coronation of His Majesty King Charles III, and to look forward to the future. It was a time of celebration, hope and optimism. In Ukraine, tragically, this weekend could not have been more different. Ukraine had to withstand yet another series of barrages against civilian areas. Yesterday morning alone, Russia launched 16 missile strikes on cities and regions, including Kharkiv, Kherson, Mykolaiv and Odesa, as well as 61 other airstrikes—barbarous actions that are feared to have killed even more civilians.
As we have seen throughout the conflict, Russia’s brutality truly knows no limits. Such damage has been done to the people and the country of Ukraine. Families have been torn apart, lives have been lost, injuries have been caused, and devastation has been inflicted on cities, towns and villages. There is also the impact on the economy. At the root of that is the flagrant disregard that Russia has shown towards Ukrainian sovereignty. Its actions are those of a tyrant who continues to believe that he and his regime are outside any legal or moral standard—outside the parameters of accountability. We need to show him and the Russian regime that that is not the case. That is why today’s debate is so integral to our efforts, and those of our allies and partners, to hold him to account for the atrocities being committed in his name.
As you will know, Mr Davies, the Opposition have been clear since the war began that the Government would enjoy our full support if they strengthened the UK’s position on the conflict in Ukraine, and the response to Russia’s actions. There is a great deal of unity across the House, whether on sanctions; tackling illicit finance; providing military, technical and humanitarian support to Ukraine; or expanding and emboldening our diplomatic coalition. The first lady of Ukraine will have heard that again when she attended the coronation at the weekend.
I have a series of questions for the Minister on the issue of a special tribunal. As far back as March last year, days after the latest phase of this brutal invasion, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) joined others in calling for the creation of a special tribunal to prosecute President Putin and others in the Kremlin regime for the crime of aggression. We welcome other ongoing efforts, which have already been discussed. That includes individual war crimes investigations and prosecutions in Ukraine domestically. The International Criminal Court has taken the welcome step of issuing an arrest warrant for the utterly brutal alleged crime of the illegal deportation of children. We have to accept that we can pursue distinct, potentially complementary, legal routes to ensure that Ukraine and its people receive justice.
Ukrainian Foreign Minister Dmytro Kuleba said at the start of the conflict that the establishment of a special tribunal would be critical to holding Putin to account for the original sin—the crime of aggression. We and others have listened, and have added our voice to the growing international chorus that backs that practical and necessary step. I was going through the Library briefing on the issue. There have been a lot of questions and debates on this issue in the House, but we have yet to hear the Government’s thinking on a special tribunal. As has been mentioned, the Government have joined this core group, but the commitment appears to concern a hybrid model. It is important to note, and we have said all along, that we want to be led by Ukrainians—what Ukrainians want and what the Ukrainian Government want. President Zelensky has been very reluctant to have a hybrid model. Indeed, he recently said:
“only one institution is capable of responding to the original crime—the crime of aggression. A Tribunal! Not something hybrid that can formally close the topic…Not some compromise that will allow politicians to say that the case is allegedly done…But a true, full-fledged Tribunal. True and full justice.”
Throughout, we have listened to and been led by the wishes of Ukraine’s leaders and its people, and that needs to happen on this issue as well.
In February, the President of the EU Commission also announced that he would establish the International Centre for Prosecution of the Crime of Aggression against Ukraine, which will be headquartered in The Hague. We have heard about the excellent work going on in the Council of Europe and other international examples, some of which I will come to later, but we have yet to hear a clear position from the Government on this. It is very important that we do, because we have heard about the potential weaknesses and limitations in some of the other models. The ICC alone does not have jurisdiction over the crime of aggression unless both the victim and aggressor have ratified and accepted the Court’s jurisdiction over a specific crime, so another way forward must be devised if we are to hold the regime to account.
It is beyond any reasonable doubt that Russia’s invasion of Ukraine and its ongoing use of force against Ukrainian sovereignty, territorial integrity and political independence is an act of aggression amounting to a violation of article 2(4) of the UN charter. Russia has irrefutably breached the threshold amounting to the legally defined crime of aggression under article 8 of the Rome statute of the ICC, which relates to the
“planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State”.
Similar questions can be raised about others who have been involved. Will the Minister comment on the situation with regard to Belarus and its aiding and abetting of the Russian regime, particularly as we saw in the early stages of the war and the attempts to capture Kyiv?
The United Nations General Assembly passed a resolution on 2 March last year, which:
“Deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter”.
The Minister knows that that carried the support of 141 states and was a clear, incontrovertible and significant decision by the United Nations General Assembly.
John Howell
The hon. Gentleman speaks of other states being involved. Is he aware that a big impetus for the tribunal comes from Estonia, Latvia and Lithuania? That is partly to support Ukraine, but it is also seen as a defensive measure should Russia invade those countries.
Stephen Doughty
The hon. Gentleman makes a very important point. Indeed, he tempts me further forward, but let me refer to some of the other international support. Estonia, Latvia and Lithuania made a joint statement on October 16 last year. I have mentioned the European Union, and the President of the European Commission made a statement on 20 November 2022, as did France. Indeed, there has been a growing chorus of other Governments, academics, legal experts and those who have been involved in similar processes in the past.
We can look at other tribunals that have been created, such as the special tribunals that were created for the former Yugoslavia and for crimes in Sierra Leone and Liberia. There are distinct differences, but we can learn important lessons from them. Indeed, the House of Commons Library refers to the Dutch Government’s willingness to hold a special tribunal. Although that is distinct from the ICC and its position in The Hague, the seat of international justice, the Dutch Government have indicated their willingness.
We have heard about the different options during this debate. That includes, first, amending the ICC’s Rome statute, although there are serious workability issues around that; secondly, a so-called hybrid model, but, as we have heard, President Zelensky does not feel that that is the right way forward; and thirdly, an international court established by the UN General Assembly with the agreement of Ukraine. We could also have a treaty between interested states, creating a special tribunal, and we have heard of a fifth option, which is the model that the hon. Member for Henley (John Howell) referred to in relation to the Council of Europe.
There are two critical issues that we would need to address in any model. First, there is the issue of immunities. There are questions in some of the options about whether immunity would come into play. Secondly, there is the question of selectivity, but I do not think that those need to necessarily stand in the way of the model. As has been said, a number of international legal experts and countries believe that those can be overcome by the special tribunal model.
Let me be clear that the brutality—the sheer wickedness—of what we have seen in Ukraine requires some very creative, robust and ambitious thinking. That is why Labour Members, and many hon. Members across the House, have supported the Ukrainian proposal for a special tribunal. These are some of the worst crimes that we have seen and the most incontrovertible case of aggression. Also, establishing a special tribunal and finding against Putin and Russia, as I very much hope it would, would lead us to a place where we can potentially take further action to give practical help to the people of Ukraine—for example, on the sequestration of Russian state assets. If we can establish and prosecute that original sin—that original crime of aggression—it could help to underpin the international legal basis for other actions that could lead to direct support for the Ukrainian people, as well as achieving the fundamental aim of justice for the country and its people for the crimes they have suffered.
I will end by quoting President Zelensky. In recent days, he said:
“But we know that the lasting peace after victory is achieved by nothing else but the strength of values. First of all, it’s the strength of freedom and of law, which must work to the full to ensure justice. Not hybrid promises instead of human rights, but real freedom. Not hybrid impunity and symbolic formalities, but full-scale justice. Not hybrid peace and constant flashes of violence on the frontline, but reliable peace. When one respects values—true freedom, true justice, true peace is respected”
and that is
“exactly what we need now.”
We should show the same ambition and the same passion for justice, the rule of law and a lasting settlement for the people of Ukraine, after the brutality that they have faced. I am very interested to hear what the Minister has to say about the processes leading towards setting up a special tribunal.
The Parliamentary Under-Secretary of State for Foreign, Commonwealth and Development Affairs (David Rutley)
It is an honour to serve with you in the Chair once again, Mr Davies. I congratulate the hon. and gallant Member for Tiverton and Honiton (Richard Foord) on securing this important debate and on the considered views he set out, as well as other hon. Members. I will do everything I can to respond to the points that have been raised.
Across the House, we are all horrified by the horrific acts, war crimes and atrocities being committed in Ukraine. It is great to continue to see that level of cross-party support in calling out and condemning these acts of aggression. The hon. Member for West Dunbartonshire (Martin Docherty-Hughes) talked about the experiences of his family during the second world war. My mother grew up as a little girl in occupied Denmark. We need to condemn these acts; we should learn lessons from the wars that have taken place. There is a lot more that we need to do to call out these indiscriminate attacks on civilians, widespread sexual violence, torture and execution.
We are appalled by Russia’s continuing strikes against Ukraine, including missile attacks on Kyiv in the early hours of this morning and over the weekend, as the hon. Member for Cardiff South and Penarth (Stephen Doughty) highlighted. We will continue to do all that we can to support Ukraine in the face of this assault on its sovereignty and territory. The United Kingdom stands with the people of Ukraine in their desire to see justice done. President Putin, the Russian leadership and the forces committing these barbaric acts must be held to account. Responding to that challenge requires a co-ordinated international approach on several fronts. That is why, over the past year, the British Government have been a leader on accountability. Working with our international partners, we have taken action on several fronts. I will set out some of the steps that we have taken.
First, we are supporting the Ukrainian justice system. It is clear that the majority of allegations of atrocity crimes committed will be investigated and, where there is a case to be made, prosecuted in the courts of Ukraine. Ukraine’s prosecutor general recently announced that Ukraine has already registered close to 80,000 cases of war crimes. Sadly, that number will increase. It is important that the Ukrainian justice system is able to rise to that considerable challenge. That is why we established the Atrocity Crimes Advisory Group with the EU and US and provided a £2.5 million UK support package. By co-ordinating among the partners, we are better able to ensure the effective and expedient deployment of resources and skilled personnel in response to the needs of the war crimes units of the office of the prosecutor general.
Through our support, more than 100 Ukrainian judges have been trained in war crimes prosecution and management and nearly 80 members of the national police of Ukraine have been trained on the forensic response, which must not be forgotten. Our package has also supported 14 mobile justice team field visits within Ukraine, including at Kherson, thereby helping to gather and protect evidence that may be used in Ukraine’s investigations. We have assisted civil society organisations to deliver psychological and legal assistance to survivors of horrific sexual violence in conflict.
We are also supporting international justice mechanisms. In March last year, within weeks of Russia’s invasion, the UK led efforts to refer the situation in Ukraine to the International Criminal Court. That referral has now secured the support of 42 other countries, and it enabled the ICC prosecutor to proceed straight to investigation without the need for judicial approval. With the ICC investigations under way, we have intensified our support for the Court, including by organising meetings for international Justice Ministers, to encourage and co-ordinate offers of support.
The UK has led from the front. Last year, we made a £1 million voluntary contribution, on top of our £10.5 million of annual funding. That funding increased the ICC’s capacity to collect evidence and provided enhanced psychosocial support to witnesses and survivors of traumatic atrocities. In March this year, a conference in London hosted by the former Deputy Prime Minister, my right hon. Friend the Member for Esher and Walton (Dominic Raab), generated more than £4 million in voluntary contributions and new offers of practical support for the Court and its independent investigation. That included a £1 million contribution from the United Kingdom.
The ICC is an independent judicial institution and it is for the ICC prosecutor to determine the nature and focus of the Court’s investigations. Those investigations are now well under way and it is clear that they are making progress. The ICC arrest warrants for the unlawful deportation of Ukrainian children that were issued for Putin and his children’s commissioner in March demonstrate that the international justice system is working and moving forward.
Let me turn to the issue of how to ensure accountability for the crime of aggression, about which many contributors to this important debate have talked. Ukraine wants accountability for the illegal, unprovoked invasion from which the war crimes stem. We share that goal and recognise the challenges in achieving it. The ICC does not have jurisdiction over the crime of aggression that has allegedly been committed in and against Ukraine. Under other circumstances, I believe the UN Security Council would have referred this act of aggression to the International Criminal Court to give it that jurisdiction. Russia’s position as a veto-holding permanent member of the Security Council means that that will not happen, which is why we are exploring other options.
In January, the UK accepted Ukraine’s invitation to join a core group that it created to shape thinking on criminal accountability for Russia. I am pleased that there is cross-party support for the Government’s engagement in that respect. The work of the group includes exploring whether a special tribunal on the crime of aggression against Ukraine might be feasible. The hon. Members for Tiverton and Honiton and for Cardiff South and Penarth indicated that the Government might have formed a definitive view. I should explain to colleagues that the Government have not declared their support for one particular option. We joined the core group to discuss how best to hold Russia to account for the crime of aggression, and the group will consider all options. These are of course complex issues of international law.
Stephen Doughty
I accept that complexity is inherent and that serious work needs to be done, but will the Minister assure Members that he has listened to what President Zelensky and, indeed, others, including the prosecutor general and Justice Minister of Ukraine, have said very clearly on this issue and the question of a hybrid model?
David Rutley
The hon. Member makes an important point, as always. We have listened to the President, to other people who have made important points on the options and, of course, to hon. Members here about their thoughts on these matters. We are playing an important role in the core group, which Ukraine has said is the main platform for exploring the legal and technical issues involved in creating a tribunal. UK legal experts are working with their opposite numbers from other states to help to shape the proposals.
The hon. Member for Strangford (Jim Shannon) has called for action. He always does, in many debates, and we are grateful for that. I can tell him and others that as we speak today, an online summit of leaders of members of the core group is taking place, with my right hon. Friend the Foreign Secretary among those to send a message of support. With Ukraine and our partners in the core group, we share the goal of exploring ways to ensure effective accountability for this crime. As has been said, there are significant challenges, including complex issues of international law, which must be resolved if any new mechanism is to be successful. The core group is the right body to address those issues; the details will matter.
My hon. Friend the Member for Henley (John Howell) has discussed with me on a number of occasions his very important work at the Council of Europe. We recognise that the Council of Europe is among those advocating for a tribunal and is keen to be involved. Clearly, at the moment, its role has not been agreed; there is more work to be done to shape thinking and develop options, as I have said. It is important that any new mechanism complements the ICC investigation and that the UK and Ukraine’s other partners maintain our support for the existing international judicial system.
Let me reflect for a few minutes on the wider situation on the ground and the UK’s support for Ukraine. Putin’s army is on the defensive. Ukraine’s heroic armed forces have recaptured thousands of square miles. We are working with our allies to ensure that Ukraine has the support that it needs to win this war and to secure a lasting peace. The hon. Member for Strangford made important comments in highlighting that.
We have committed £6.5 billion in military, humanitarian and economic aid since the start of the invasion. We have also made available £1.7 billion in fiscal support to Ukraine, including £1.6 billion through four World Bank loan guarantees. We have been leading work on humanitarian assistance, and helping to build an international coalition to call out Putin’s invasion and in support of Ukraine. I was privileged in January to speak at the UN Security Council in favour of the UN charter and of the rule of law, which we all hold dear in our hearts. We need to ensure that other international actors show their respect for those important institutions and laws. Of course, we have also put in place an important and unprecedented set of sanctions.
My hon. Friend the Member for Henley talked about the importance of recovery. We are pleased to see broad support—the UK gave its support at the UN General Assembly on 14 November—for the establishment of a register of damages. That will be vital to work on recovery mechanisms to help the people of Ukraine after the conflict. Of course, we look forward to co-hosting the next Ukraine recovery conference in London next month.
Stephen Doughty
It is welcome that the recovery and reconstruction conference is taking place here, but of course one of the crucial issues at the conference will be the finance for the huge amount of reconstruction needed. One reason why we support an international special tribunal and other legal mechanisms is that they can provide a firm foundation for action to sequester and seize Russian state assets, rather than just freezing them. Can the Minister update us on the Government’s thinking about the legal process for that? We have had a lot of stalling and flummery and there has not been a clear position on the issue, which will be critical for the conference.
David Rutley
I understand the point that the hon. Member makes. Clearly, the asset seizures have been important. We need to work out how they could be used in the recovery. He knows—he is very astute on these matters—that there are complex issues, but we are working away on this, just as we are on the other issues that we have talked about during the debate.
The hon. Member also talked about Belarus. We are taking every opportunity to remind the Belarusian regime that there will be serious consequences if it becomes more directly involved in Russia’s war.
The UK is determined to hold Russia to account for its illegal and barbaric actions in Ukraine, and to ensure that justice prevails. That includes providing support for the Ukrainian and international justice systems, and working with the core group established by Ukraine to consider accountability, including the possibility of a special tribunal. Meanwhile, we will continue to supply aid to help the fightback and crack down on supporters of the war through sanctions, all while remaining at the centre of diplomatic efforts to secure the strongest possible support for Ukraine across the international community. We share Ukraine’s determination that Putin’s illegal invasion must fail and that justice must be done. As President Zelensky said last week in The Hague,
“there can be no peace without justice”.
12.30 pm
Richard Foord
I am grateful to hon. Members for their contributions to this interesting debate. The hon. Member for Strangford (Jim Shannon) reflected on the annexation of Crimea in 2014 and suggested that we should have been much more active in thinking about justice at that point, rather than waiting until the full-scale invasion in 2022. Perhaps the difference between those invasions is that in 2014 Russia denied the presence of its troops in Ukraine; what makes the invasion in 2022 so outrageous is that Russia did not seek to hide the enormous military presence it had put into Ukraine.
I agree with the hon. Member that we should not simply bandy about the term “special tribunal”; we should really drive it forward and seek action. I also very much liked the fact that he referred to the UN charter and to article 2(4) on the prohibition of the use of force and the importance of territorial integrity.
I am grateful to the hon. Member for Henley (John Howell) for his contributions about the Council of Europe. He pointed out that Ukraine will be high on the agenda at the Council of Europe summit meeting in two weeks’ time. He mentioned that there can be difficulty in getting agreement at the UN General Assembly. I accept that it can be difficult to get a majority or a super-majority in that body, but we proved last March, when 141 states came out and condemned aggression, that achieving these things is not impossible. I appreciate the Council of Europe’s reaffirming the need for strong accountability.
I am grateful to the hon. Member for West Dunbartonshire (Martin Docherty-Hughes) for pointing out that we have to think about how aggression can set a precedent. We have to think about how, if we leave this particular aggression to go unchecked or unaccounted for, it could encourage other states to perpetrate aggression in the future. The hon. Member will correct me if I have misunderstood him, but I think he cautioned against timidity for fear that future leaders in the UK and elsewhere might be subject to prosecution. I agree that we must not be timid in that respect. Of course, both his party and mine have opposed some invasions that this country has been involved in during the last 20 years, and one in particular.
The hon. Member for Cardiff South and Penarth (Stephen Doughty) spoke about the original sin. I very much liked the way he put that. He quoted President Zelensky on some of the shortcomings of the hybrid model. I liked the way that the hon. Member talked about “true and full justice”, and I agree that that is what is required.
The Minister talked about the Atrocity Crimes Advisory Group. It is very welcome that the UK is taking initiatives in support of prosecuting war crimes and crimes against humanity. I am also grateful to the Minister for reminding us of the additional £1 million contribution by the UK to the ICC for such things as psychosocial support for victims. That is all very noble, but I was pleased that he turned to the crime of aggression. I was particularly pleased to hear him say that the UK Government have not declared support for a particular option for a tribunal. That is welcome.
Back in January, the Foreign Secretary talked about supporting a special hybrid court so long as it did not duplicate the work of the International Criminal Court. I think that we have demonstrated today, as others have elsewhere, that there is no duplication here, and that a special tribunal will be complementary to the work of the ICC. With that in mind, I look forward to the UK Government being a strong voice in support of a special tribunal that will be as international in character as possible.
Question put and agreed to.
Resolved,
That this House has considered the potential merits of a special tribunal on Ukraine.