I have read with great interest the intervention of Louis Moreno Ocampo, the first Chief Prosecutor of the International Criminal Court (ICC), in the debate concerning the proposal to establish a special tribunal for the crime of aggression against Ukraine (STAU).

There is one point on which I entirely agree with Ocampo. It is that the Assembly of States Parties to the Rome Statute should remove the restriction in article 15bis(5) that precludes the Court from exercising jurisdiction when the crime of aggression is committed in the territory of a State party. I have already said so many times before now, in speeches and lectures. The politics that produced that provision is highly regrettable, indeed, as it has left the world without a legal framework already in place to bring accountability to bear on the apparent crime of aggression in Ukraine. It is for that reason that the Assembly of State Parties must – I repeat – delete without further delay the restriction in article 15bis(5) of the Rome Statute for future application.

That said, I could not agree with Ocampo’s primary assertion, which is that to establish the STAU is to “consecrate selective justice.” In my view, the very opposite is true in the long run.

In the minds of many, Ocampo’s argument may seem arresting in the moment. However, taking a long-term view of international law reform, that proposition does not stand the test of time. Indeed, history amply teaches us that lesson. Let us remember that the same arguments were heard in 1945 and the following years, about the establishment of the Nuremberg and Tokyo Tribunals. Those were arguments made by sensible people driven by a certain view of purity of principles – in the moment. But they were unconcerned, or not sufficiently concerned, that their arguments might have – in the moment – resulted in impunity, let alone serious injustice for victims of the grave atrocities that had been committed.

Now looking back, those precedents of 1945 and 1946 – reproached by some then as “flawed” – have been celebrated by most (including Ocampo, I’m sure) as worthy precedents for the ICC and the earlier ad hoc tribunals for Rwanda and the former Yugoslavia.

So, too, it will be for the Special Tribunal for the Crime of Aggression against Ukraine. I strongly support its establishment. Years from now, it would have correctly earned its place as one of the building blocks in the never-ending construction project of international law.

IMAGE: The twenty-first session of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) opens at the World Forum Convention Center in The Hague, The Netherlands. (Photo via International Criminal Court)