CYIL vol. 14 (2023)

CYIL 14 (2023) ESTABLISHMENT OF THE REGISTER OF DAMAGE AS A RESPONSE OF THE COUNCIL … murders, but for the tax evasion. As a citizen of a State, that was the victim of aggression twice in the last century, I disagree with this pragmatic approach. In addition, if nobody is charged with the crime of aggression, how do we then achieve justice for the Ukrainian civilians and soldiers whose deaths were not a result of violation of the international humanitarian law, but of the aggression itself? Given its principled position towards the Russian aggression against Ukraine, it is not surprising that the Council of Europe has been at the forefront of the debates on the establishment of an ad hoc tribunal that would try this crime of aggression. The PACE, already on April 28, 2022, passed a resolution by which it called on all member and observer States of the Council of Europe “to urgently set up an ad hoc international criminal tribunal, which should receive a mandate to investigate and prosecute the crime of aggression allegedly committed by the political and military leadership of the Russian Federation” 10 . The subsequent developments has shown, however, that there is not enough political will to establish such ad hoc tribunal within the Council of Europe, as demonstrated by the CMD decisions from 15 September 2022, by which the Deputies just “noted with interest the Ukrainian proposals to establish an ad hoc special tribunal for the crime of aggression…” 11 . Therefore, the Ukrainian diplomacy formed the so-called “Core Group” of States that are working together on how to establish a “Special Tribunal” that would prosecute the crime of aggression against Ukraine (the first meeting of the Core Group took place in Prague on January 26, 2023 12 ). Nevertheless, the second meeting of the Core Group took place in Strasbourg upon the invitation of the Council of Europe and the recent Reykjavík Declaration from the 4th Summit of the Heads of State and Government of the Council of Europe (hereinafter, the “Reykjavík Summit”) at least requests, regarding the establishment of the Special Tribunal, that “[t]he Council of Europe should participate, as appropriate, in relevant consultations and negotiations and provide concrete expert and technical support to the process.“ 13 The second line of responsibility is that of the Russian State for any damage caused by its aggression to Ukraine under the rules of international law codified by the International Law Commission in the Articles on Responsibility of States for Internationally Wrongful Acts 14 (hereinafter, the “ARSIWA”). As a first step in invoking the responsibility of the Russian Federation, the Ukrainian diplomacy aimed at the establishment of a register of damage caused by the aggressor that would have a certain international backing. Although it would be entirely acceptable for the victim-State to make the calculation of reparations by itself – as was done by Czechoslovakia and other victims of the Nazi aggression after the Second World War at the Paris Conference – it was clear that the “internationalization” of the register of damage 10 The Resolution of the PACE 2436(2022), adopted on April 28, 2022, The Russian Federation’s aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes, para. 11.6. 11 The Decisions of the CMD CM/Del/Dec(2022)1442/2.3., adopted on September 15, 2022, Consequences of the Aggression of the Russian Federation against Ukraine – Accountability for international crimes. 12 See the website of the Ministry of Foreign Affairs of the Czech Republic: https://www.mzv.cz/jnp/en/issues_ and_press/press_releases/the_ministry_of_foreign_affairs_hosted_a.html. 13 Reykjavík Summit of the Council of Europe: United around our values – Reykjavík Declaration, p. 5: https:// rm.coe.int/4th-summit-of-heads-of-state-and-government-of-the-council-of-europe/1680ab40c1. 14 The UNGA Resolution A/RES/56/83, adopted on January 28, 2002, Responsibility of States for Internationally Wrongful Acts.

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