April 19, 2023

CGA Professor Trahan — A Special Tribunal on the Crime of Aggression for Ukraine Should be Created

CGA’s Professor Jennifer Trahan has become a regular feature on high-level international law panels and in the media regarding the crime of aggression Russia is committing against Ukraine. Trahan has been particularly outspoken on the need to create an international tribunal on the crime of aggression through the United Nations General Assembly. The International Criminal Court (ICC), while generally empowered to prosecute the crime, cannot do so in the situation of Ukraine, creating a jurisdictional gap.

Trahan also serves as an advisor to states and others at the United Nations on the topic.


Trahan speaking in December 2022 during the annual meeting of the ICC’s Assembly of States Parties in The Hague, Netherlands

Trahan speaking in December 2022 during the annual meeting of the ICC’s Assembly of States Parties in The Hague, Netherlands

Twenty Years of Experience in the Negotiations

Trahan has written and worked on issues related to the crime of aggression since the early 2000s, when negotiations focused on finalizing the definition of the crime in the Rome Statute of the ICC. She was a civil society representative and individual expert to the negotiations of the Special Working Group on the Crime of Aggression; the ICC Review Conference in Kampala, Uganda; and the International Criminal Court’s Assembly of States Parties (ASP) meeting in 2017 where states activated the ICC’s jurisdiction over the crime.

High-Level Speaking Engagements

This past year, Professor Trahan has been working with a small group of experts on a proposal to create a Special Tribunal on the Crime of Aggression (STCoA) by bilateral treaty between the UN and Ukraine. She first presented on the idea to states at the Yale Club in New York City in June 2022 (see Chair’s summary, circulated to all UN Member States).

Trahan speaking with Professor Charles Jalloh at Harvard Law School March 2023.

She has since spoken on the topic over 40 times, including at the University of Maryland School of Law, Harvard Law School (pictured), Columbia Law School, and a side-meeting of the ICC’s ASP in December in The Hague, Netherlands. She was also able to present on the topic during a March 30, 2023, panel at the United Nations hosted by the Permanent Mission of Japan to the United Nations, entitled “Promotion of the Rule of Law through International Judicial Institutions.”

Recently she addressed the topic as well as Security Council paralysis, including the need to challenge the legality of permanent member veto use in the face of atrocity crimes, at the Annual Meeting of the American Society of International Law in Washington D.C., March 29, 2023 (pictured remotely). The latter topic is the subject of Trahan’s 2020 book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge U. Press).

Trahan has recently been quoted on the topic of an aggression tribunal in The New York Times, with TV appearances on Voice of America (Ukraine) as well as Al Jazeera.

Writing on the Crime of Aggression

Trahan has a lengthy list of scholarship to her credit, including on the crime of aggression. Her ideas on the STCoA have been featured extensively this past year on the website of Just Security. They include:

· Don’t be Fooled by U.S. Smoke and Mirrors on the Crime of Aggression: Weak Proposals Carry the Risk of Weak Results

· Why a “Hybrid” Ukrainian Tribunal on the Crime of Aggression is Not the Answer

· Special Tribunal to Prosecute the Crime of Aggression Against Ukraine (Part VI): on the Non-Applicability of Personal Immunities (co-authored with Professor Astrid Reisinger Coracini), and

· The Case for Creating a Special Tribunal to Prosecute the Crime of Aggression Against Ukraine (Part III)

(For the blog series of which her posts are a part, see here.)

Trahan’s recent scholarly articles on the topic include: “Legal Issues Surrounding Veto Use and Aggression” in Case Western Reserve Journal of International Law, and articles on the STCoA being published in Fordham Journal of International Law and Baltimore Journal of International Law.

Trahan is additionally writing on, and advocating for, the need to amend the ICC’s Rome Statute to expand the Court’s jurisdiction over the crime of aggression so that the crime may be prosecuted more broadly before the court in the future. This approached has been endorsed in a Statement by The Global Institute for the Prevention of Aggression — a group of experts of which Trahan serves as Convenor — as well as by Parliamentarian for Global Action.

Upcoming Conference at the Nuremberg Courthouse

Trahan’s upcoming presentations include speaking at a conference to be held in the courthouse of the former International Military Tribunal in Nuremberg, Germany (May 4–5) (on the crime of aggression); the International Humanitarian Law Roundtables on Lake Chautauqua, N.Y. (late August) (on cyber-attacks and international criminal law); as well as a conference in Vienna, Austria (early October) (on amending the ICC’s Rome Statute to expand the Court’s jurisdiction over the crime of aggression).

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