The spring session of the Parliamentary Assembly of the Council of Europe (PACE) took place in Strasbourg last week.

Since February 24, members of this body have finally realized the threat posed by Russia to the entire continent. Russia's unprovoked aggression triggered the unanimous decision of the assembly at an emergency session in March to expel Russia from the Council of Europe.

Now, Ukraine is on the agenda again. 

Among provisions of new Resolutions on the Russian aggression adopted by PACE, two points deserve particular attention.

First, the PACE called on all member states of the Council of Europe to "urgently set up an ad hoc international criminal tribunal" to "prosecute the crime of aggression" allegedly committed by the leadership of the Russian Federation and urge the UN General Assembly to support its creation.

Second, the PACE called on the UN General Assembly to "request an Advisory Opinion from the International Court of Justice on possible limits to the veto rights of permanent members of the United Nations Security Council." This move is aimed at depriving Russia of the key leverage it uses to block any reaction of the Security Council to its aggression against Ukraine.

International Tribunal

Experts are actively discussing the idea of ​​prosecuting the top leadership of the Russian Federation for the crime of aggression against Ukraine. As the crime of aggression has a special jurisdictional regime under the Statute of the International Criminal Court, it is necessary to establish a separate tribunal to prosecute it.

One of the first such initiatives was the Statement calling for the establishment of a special tribunal by Ukrainian and foreign international lawyers and politicians. Dmytro Kuleba, the Minister of Foreign Affairs, endorsed this initiative.

However, it received some criticism as well. There are concerns that due to the immunity of heads of states, governments, and state officials, such a tribunal will not be able to prosecute the leadership of Russia i.e., Putin, Lavrov, and others.

Admittedly, such immunity exists.

The International Court of Justice established that only a few international tribunals could try those protected by such immunity, for instance the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.

The last two tribunals received this privilege because they were set up by the UN Security Council, whose decisions are binding according to the UN Charter.

Here comes the question: if the tribunal for Ukraine does not receive approval of the Security Council because of a Russian veto and Russia does not become a party to the treaty establishing such a tribunal, will it be able to ignore Putin's immunity as a head of state?

There is no clear answer to this question.

In one such precedent, the Special Court for Sierra Leone argued that Liberian President Charles Taylor could be prosecuted simply on the basis of the court's international character. However, this decision is ambiguous, and it is doubtful whether this outcome could be repeated.

At the same time, approval of such a tribunal by the UN General Assembly, as proposed by the PACE resolution, could strengthen the position of a future tribunal. According to the UN Charter, states must give the United Nations every assistance in any action it takes. Even though the resolutions of the General Assembly, unlike the decisions of the Security Council, are not binding.

The UN General Assembly has already opened an extraordinary session on Russian aggression under the "Unity for Peace" mechanism, which is intended precisely for the cases when the Security Council is unable to maintain international peace and security. If such a session of the UN General Assembly approves an agreement to establish an international tribunal to prosecute those responsible for the crime of aggression, with a provision waiving immunity for heads of state and other state officials, then this tribunal is likely to be able to bring Putin to justice.

And the PACE resolution will facilitate the General Assembly's decision-making in this respect.

Change the rules of the game in the Security Council

An even more interesting aspect of the resolution is the call for the General Assembly to request the International Court of Justice to issue an advisory opinion on restricting Russia's power to veto Security Council decisions.

The advisory opinion is a special legal mechanism provided by the UN Charter. It is made at the request of the UN bodies, in particular UN General Assembly, and a simple majority is enough to reach a decision.

The Court's decision is not formally binding, but it is highly authoritative.

This tool is often used when a conventional interstate procedure is not possible due to a lack of consent.

In theory, Ukraine could ask the International Court of Justice to confirm that the annexation of Crimea is a violation of international law or that Russia violated the UN Charter by attacking Ukraine on February 24. However, these infringements of legal rules by the Russian Federation are so obvious to the international community that even if we receive an opinion from the Court in a few years, it will only confirm the truth already known to everyone.

It is much more important to get an opinion of the Court on restrictions of Russia's veto in the Security Council. It is known that the Russian Federation acts as a permanent member of the Security Council (albeit legitimacy of its place on the Council is doubtful) and can veto any decision of the Security Council.

As a result, instead of a functioning and influential organ, we have a completely blocked body unable to stop Russian aggression.

Russia was even allowed to overtly violate the UN Charter by exceeding its powers in the Security Council. The Charter (Article 27) obliges a "party to a dispute" to abstain from voting on Security Council decisions adopted under the Chapter entitled "Pacific Settlement of Disputes", but Russia vetoed these decisions on Ukraine.

However, Article 27 in any way does not apply to Russia's right to block any concrete action of the Security Council to counter the aggression. But there is another rule that could be used to stop Russia.

Article 2 of the UN Charter stipulates that UN member states "shall fulfill in good faith the obligations assumed by them in accordance with the present Charter" "in order to ensure to all of them the rights and benefits resulting from membership".

Is the Russian Federation fulfilling its obligations in good faith? The answer is obvious - no. 

And this should affect the ability of Russia to use its rights and privileges of the UN membership, including its right to veto.

Of course, there are risks. The ICJ is very conservative. It will not be able to reform the UN Charter or radically change unfair rules existing today. But even if the Court simply confirms that Art. 2 of the UN Charter does not allow permanent members of the UN Security Council to use the right to veto arbitrarily, it will be one of the deepest tectonic shifts in almost 77 years of the Organization's existence and promote future reform of the UN system.

PACE session matters

The fact that such creative, but quite realistic legal constructions found its way into a resolution of the Parliamentary Assembly of the Council of Europe marks the beginning of profound changes in international law.

Changes catalyzed by Ukraine's strong resistance to the Russian aggression.

Participating in discussions in March on possible actions by the Ukrainian government within the UN system, Ukrainian international lawyers, including the author of this text, carefully considered these two options and assessed them as quite promising. However, the promotion of these ideas by the Polish rapporteur and almost unanimous support of the Parliamentary Assembly of the Council of Europe are really impressive and demonstrate that the world is building a consensus on bringing the aggressor to justice and overcoming the impunity of permanent members of the UN Security Council.

Ukraine is now at the forefront of changes in global security architecture. In fact, these changes are starting right now.

Therefore, it is in support of these historic initiatives that the spring session of the Parliamentary Assembly of the Council of Europe 2022 will be most remembered.

Author: Erik Kucherenko,

Expert in International Law,

Assistant to Ukrainian MP Lesia Vasylenko