Your Excellency President Zelenskyy, distinguished lawyers, ladies and gentlemen,
I thank the Prosecutor General Andriy Kostin for inviting me to this crucial conference.
Ukraine continues the military fight on the battlefield. Ukraine must and will win.
Russia will lose and be held accountable for the crime of aggression. The gravest crime in international law. The mother crime.
Our task at this conference is to prepare for bringing Russia to account. We will discuss the various options and why one is better than the other.
I have 24 years of experience as a judge in international courts, and I can say that they are all better than doing nothing. Silence from the international community, from the international law would be a ‘green light’ to every dictator in the world, to every tyrant. It would be a wrong signal.
I also have experience as a Latvian, whose country experienced occupation, killings, deportations, dictatorship by Russia for 50 years. Justice never came for our victims. It never came also for the victims of Ukraine’s Holodomor.
So today we can change that pattern. We must finally hold Russia accountable for its crimes.
From the Russian leadership to every Russian soldier who kills, rapes, loots, destroys.
Later we will discuss the appropriate mechanisms for bringing Russia to account. The legal community is creative. We not only refer to precedents, we create them.
We created special international tribunals for Rwanda, for Lebanon, for former Yugoslavia, among others. We created the Nuremberg tribunal by only four states, but with huge impact to the development of international law.
This is legally possible. All that is now required is political will.
I am encouraged by the growing political will, by the growing momentum to create a special international tribunal.
For example, by the European Parliament in its resolution of 19 January and the Parliamentary Assembly of the Council of Europe in its resolution of 26 January this year.
Both institutions, which represent the democratic states in Europe and their peoples, clearly support such a special tribunal.
There is a growing political will in Europe, in the West.
Outside Europe, outside the West, we, politicians still have work to do. The so-called Global South is quite diverse.
Some are under political and economic pressure from Russia. Some see this war as a local European problem, with an element of ‘Schadenfreude’.
However, there is a hope, as the recent votes in the United Nations General Assembly show.
The world is slowly losing its fear of Russia.
Ukraine has lost all fear.
Now Russia must be afraid for the crimes it has committed.
Dear friends and colleagues,
The next Panel would examine the various global accountability mechanisms in place or under consideration to ensure justice for atrocity crimes.
The war of aggression started by Russia presents existential threats to international peace and security and the rules-based international order.
Such behaviour must be met with the most determined response so that the signal is clear – aggression towards or military invasion of another sovereign State is not tolerated.
We commend Ukraine for its skills in using all available mechanisms under international law to respond to Russia’s aggression and ensure State responsibility and individual liability.
The use of these mechanisms reaffirms their relevance and proves that international law has tools to respond to the breaches of international law.
At present, three international mechanisms have already started to evaluate Russia's state responsibility.
First, Ukraine is seeking a determination by the International Court of Justice (ICJ) that Russia has distorted the so-called Genocide Convention (1948 Convention on the Prevention and Punishment of the Crime of Genocide) and used the false claims of genocide being committed in Ukraine as a pretext for military invasion.
Latvia is a State Party to the Genocide Convention, and has a genuine interest in the interpretation of this Convention regarding abusive allegations of genocide. For this reason, Latvia has submitted to the ICJ a declaration intervening as a third party in this case.
Second, Ukraine has submitted an inter-State application to the European Court of Human Rights (ECHR) and seeks a determination by the ECHR that Russia has violated the European Convention on Human Rights.
Latvia is intervening as a third party in this case as well.
And third, the issue of compensation of damages inflicted by Russia. We note the work on the creation of the register of damages, as well as efforts to establish a legal basis for the use of frozen and immobilised Russian assets for the reconstruction of Ukraine and for reparations.
Now turning to individual liability.
In parallel to State responsibility, individual liability for the most serious crimes of international concern must also be ensured.
The international community has conferred the jurisdiction over these crimes – crime of aggression, war crimes, crimes against humanity, and genocide – to the International Criminal Court (ICC) in Hague.
We consider the International Criminal Court a major achievement in international law, and we pledge our full support to the ICC.
Latvia has provided voluntary financial contribution to the ICC, has seconded experts, and is looking for other ways to assist the ICC.
However, we must admit that because of the way the amendments to the ICC Statute regarding the crime of aggression are drafted, the ICC cannot exercise its jurisdiction over this crime if committed by Russian nationals.
Therefore, currently no international mechanism can exercise jurisdiction over the crime of aggression committed against Ukraine.
This is unacceptable.
The crime of aggression is the source of other core international crimes currently being investigated by the ICC.
This gap must be closed.
Two conclusions follow.
Firstly, we must close this gap for the future, and therefore think of amending the Rome Statute to this effect.
Second, and most importantly, we must close this gap with respect to the crime committed against Ukraine.
Already on 2 March 2022, the United Nations General Assembly condemned Russia’s aggression against Ukraine, thus determining that there has been an aggression.
Therefore, we must create a legitimate mechanism to ensure accountability for the crime of aggression against Ukraine.
Throughout history, the international community has found creative and innovative ways to address atrocity crimes, in order to ensure accountability and the rule of law.
Together we have created international tribunals for crimes committed during WWII, in former Yugoslavia, Rwanda, Sierra Leone, Cambodia, etc.
These tribunals did great work by investigating and adjudicating war crimes, crimes against humanity, genocide, and crimes against peace.
In some ways our current task is easier – we need a new solution for addressing only one crime, we already have an internationally agreed definition of that crime. In other ways, the task is more complex, both legally and politically.
Historically, two types of special tribunals can be identified – international tribunals and hybrid tribunals.
The Criminal Tribunal for the former Yugoslavia was the International Tribunal, and The Extraordinary Chambers in the Courts of Cambodia are considered as hybrid tribunals.
We cannot copy these precedents, but we can certainly draw inspiration from them. We should create something new, we should develop international law. And this is a time for developing the international law in the case of Russia’s aggression against Ukraine.
It must also be recalled that the crime of aggression is a leadership crime. Therefore, any mechanism we create for the crime of aggression must be able to ensure accountability of the Russian leadership.
This inevitably raises the questions of immunities, and whether there are ways to create a legal basis for legitimate exceptions to the personal immunities of the top state leadership.
In this regard, the conclusions of the International Court of Justice in the Arrest Warrant case regarding possible exceptions from personal immunities, serve as guidance.
Latvia alongside other like-minded States believes that an ad hoc international tribunal under the auspices of the UN can ensure accountability of top Russian leadership.
Drawing from precedents, we suggest to establish the ad hoc international tribunal by concluding an agreement between the UN Secretary General and Ukraine, based on a UN General Assembly resolution, as it was done in the case of Cambodia.
We consider that it would be possible since the UN General Assembly has determined that there has been an act of aggression by Russia, and the International Court of Justice in its case law has previously concluded that the UN General Assembly has certain competence regarding the maintenance of peace and security.
Nevertheless, we should not forget also other possibilities.
An international tribunal created under the auspices of the UN would provide the strongest international legitimacy, and would allow exemptions from personal immunities in line with International Court of Justice and International Criminal Court case law.
All we need for the creation of such a tribunal and for ensuring full accountability, is determination and political will.
Finally, we must bear in mind that Belarus has allowed Russia to use its territory to perpetrate an act of aggression against Ukraine. We therefore must also address the accountability of Belarus.
Dear friends and colleagues,
The establishment of such a special tribunal is needed for two reasons.
Firstly, it is necessary in order to do justice to Ukraine.
And secondly, this is necessary in order not to damage the standard of international law already reached in 1945 by UN Charter, which forbids aggressive wars.
In such a case, the world would fall back into military anarchy. No one would want to live in such a world.
Therefore, establishing such a tribunal is in the interest not only of Ukraine but of the whole international community.