Eliska Hauferova
Edited by Norpell Wilberforce
10/11/2022
Ever since the invasion of Ukraine by Russia in February 2022, the international community has been concerned with how to hold the aggressor accountable under international law. Ukraine has concluded an agreement with the International Criminal Court (ICC) which extended its jurisdiction over the Ukrainian territory. This allows ICC to prosecute all war crimes and crimes against humanity that are committed in Ukraine, even though the state isn’t party to the founding document – the Rome Statute.[1] However, while its authority applies to atrocities perpetrated by the soldiers on the ground, it cannot prosecute the Crime of Aggression, which is the invasion itself. Despite the strong appeal of the theoretical case for a tribunal, there are important practical obstacles in creating such an institution, and this article will engage with both, presenting its own conclusion on the best course of action.
Despite being “the international crime from which all others flow”[2], as the executive editor of Just Security Oona A. Hathaway puts it in an article series defending the establishment of a special tribunal, it is different from all others in an important way. Exception reached at the Kampala conference review of the Rome Statute in 2010 states that ICC cannot prosecute this crime in countries that aren’t a) party to the Statute or b) referred by the Security Council for prosecution.[3] This renders indictment of Russia virtually impossible, as the state does not recognize the ICC and holds a veto power in the Security Council at the UN. Thus, de facto immunity against existing international justice mechanisms has led a number of experts in the field, international organizations, and state officials to call for the creation of a special criminal tribunal for the prosecution of the crime of aggression against Ukraine, modelled after similar institutions in Yugoslavia, Rwanda or Sierra Leone[4]. The idea has gained even more popularity as Ukraine successfully defends itself, making proceedings against the aggressor feasible. However, not everyone considers a new special tribunal to be an adequate and effective measure to hold Russia to account.
What about the ICC?
The International Criminal Court (ICC) was established on the 1st of July 2002 resulting from the Rome Statute passed in 1998 by 121 out of 148 present states. [5] It is the first permanent international criminal tribunal of its kind. Its jurisdiction includes the prosecution of genocide, crimes against humanity, and war crimes[6], holding the most responsible individuals accountable. The court also has the power to prosecute the Crime of Aggression defined as “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity, and scale, constitutes a manifest violation of the Charter of the United Nations”[7]. This definition clearly applies to Russia’s actions in Ukraine, which violate the terms of the UN Charter. So, what is the problem? As has already been hinted, ICC concerns itself with individuals, not states. Hence, it is meant to punish those with the greatest share of responsibility for perpetrating atrocities described in Article 5[8] of the Statute. The first review conference of the Rome Statute in Kampala in 2010 introduced an exception regarding ICC’s jurisdiction over the Crime of Aggression: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory”. [9] Because ICC prosecutes individuals with the greatest responsibility (in this case Russian nationals in leadership positions that have planned the invasion on Russian territory), the court has no default authority in the matter. Understandably, Russia will not refer its most senior officials to an ICC investigation, nor will it let the Security Council do so. Thus, the argument is that a novel international law mechanism must be established to prosecute this serious crime.
The Argument of Principle
The tribunal has been proposed in multiple forums, including the European Parliament, Council of Europe, and the Parliamentary Assembly of NATO. [10] Ministers of various countries, Ukrainian international lawyers[11], and senior officials within the EU have voiced their individual support for the idea, including foreign policy chief Joseph Borrell: “I know it is difficult but what we cannot afford is for this to happen and nobody being accountable for it.”[12] The central principle is clear: Russia shouldn’t be able to get away with a serious breach of international security because ICC’s jurisdiction is insufficient. The article series by Just Security emphasises the symbolic power of the international community’s rebuke of violent behaviour through a court manned by judges and officials from around the world. This would demonstrate that Russia hasn’t only harmed Ukraine, but the whole international community and its legal foundation.[13] Furthermore, the article argues that the tribunal should be established between the UN General Assembly and Ukraine, to emphasise the international nature of the proceedings.
However, many countries would be content to leave the prosecution of the crime of aggression to Ukraine’s domestic courts. After all, as Professor of international law Kevin Heller notes in his opinion piece against the special tribunal[14], 143 states have already passed a resolution in the UN General Assembly which condemns the crime. Therefore, nobody is left questioning that Russia’s actions are unacceptable. [15] In opposition, I would argue that UN Resolution isn’t as compelling as a criminal prosecution. While international investigation could not bar states from cooperating with Russia, economically or otherwise, it would bring out the extent of Russia’s guilt in full detail, making it harder to defend by nebulous statements about shared responsibility for the situation. This benefit would remain even if the court didn’t manage to prosecute anyone and is in my opinion one of the chief reasons to establish it. Moreover, official condemnation in the UN doesn’t produce tangible consequences for the offender, which is a central condition of administering punitive justice that states universally implement in their domestic judiciary. Thus, whatever a UN resolution might deliver, it cannot deliver justice as we understand it.
A further interesting argument for the internationalization of the process brought up by Just Security is Ukraine’s constitution, which states in Article 125, “The establishment of extraordinary and special courts shall not be permitted.”[16] However, other proposals such as the one by Public International Law & Policy Group, of creating a High Court for War Crimes in Ukraine, similar to the existing High Anti-Corruption Court, evades this constitutional problem by stating the court could become a permanent element of the Ukrainian judiciary codified by the criminal law, and thus would not be “extraordinary and special”. This clearly shows that an international tribunal isn’t necessitated by the limitations of Ukraine’s domestic court system. Ukrainian courts can play an important role in administering justice by processing the large volume of atrocities that have happened on Ukraine’s territory, which do not concern highly placed officials and therefore cannot be taken up by the ICC. Still, because the prosecution of the crime of aggression would result in assigning blame for the entire conflict to one party, it is more important than with the other crimes that a court is considered impartial, otherwise, it would be discredited as Ukraine formalizing its opinion in terms of international justice. This demonstrates a good reason to create a special criminal tribunal along with the ICC and the potential High Court for War Crimes, specifically for the crime of aggression.
The Issue of Effectiveness
Another key argument for prosecuting Crimes of Aggression internationally is that, unlike Ukraine’s domestic courts, such a court could disregard the immunity of senior Russian officials. Just Security writer Jennifer Trahan argues that the tribunal would explicitly include that immunity of office doesn’t prevent prosecution, just as has been stated in the ICC Statute and practiced in other ad hoc criminal tribunals. The issue, again pointed out in the article by Professor Kevin Heller, is that none of these cases is analogous to that of Russia. Either officials indicted by previous tribunals were stripped of their immunity by the new government of their country, such as in Sierra Leone, or their cases have been referred to the ICC by the Security Council, like the 2009 prosecution of Sudanese president Omar al-Bashir[EH1] . The ICC ruling in this instance stated: “As Sudan is obliged to ‘cooperate fully’ with the Court, the effect of article 27(2) arises also in the horizontal relationship – Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir”[17]. Alternatively, special courts such as ICTY and ICTR were established according to the Chapter VII of the UN Charter by the Security Council itself.
Russian officials aren’t in any of these situations. ICC cannot waive their immunity because it doesn’t have jurisdiction, Russia won’t surrender them for prosecution, and the Security Council won’t create a special tribunal against one of its members with veto power. Thus, there is actually no precedent that would show they are not immune to international prosecution because “states cannot delegate to the Court powers that they do not themselves possess.” [18] Since no state possesses the power to prosecute foreign officials, a special tribunal might have as much difficulty indicting individuals as Ukraine’s domestic judiciary.[19]
A further issue with effectiveness lies in gathering witnesses for the crime of aggression. Jennifer Trahan notes that witnesses of the crime of aggression must have been “personally close to the high-level decision-making”[20] to be able to provide evidence for the trial. Such people would not only need a high level of protection for an extended period of time, as the article considers, but they would also be exceedingly difficult to find. Being this close to the planning of the invasion likely renders them potential defendants and indicates personal ties to the regime that would discourage them to come forward. This also leads to perhaps the most serious drawback of prosecuting the crime of aggression, which is bringing the defendants to court. As long as top Russian officials refrain from leaving Russian territory, they are safe from prosecution even if a special tribunal were established. Trials in absentia have been rejected by most international criminal tribunals because of concerns about due process. Therefore, effective work of the tribunal would require regime change in Russia, which at the present seems rather unlikely. [21] As Kevin Heller notes, creating a special tribunal that would never manage to prosecute anyone would send the exact opposite message than its proponents wish to articulate, that is, countries can transgress international law with impunity because there are no effective mechanisms to hold them to account.
While these practical drawbacks of prosecution should not be overlooked, in my opinion, the simple creation of a tribunal would already be an improvement on past inaction against powerful states’ transgressions of international justice. Opponents of the special criminal tribunal decry the selectiveness of international justice, which refrained from investigating the 2003 invasion of Iraq but would now give special treatment to the Ukraine-Russia conflict.[22] Even though it could indeed be read this way, proceedings against a permanent member of the Security Council could also signal a new determination of the international community to eradicate double standards in international justice, following other unprecedented forms of backlash to the war e.g., enduring and severe economic sanctions. Additionally, to reiterate the point previously made about the symbolic power of a special tribunal, even if Russian officials aren’t prosecuted, the process of collecting evidence may prove very damning to the state and affect their international position.
Conclusion
These are only some of the points raised in the debate about establishing a Special Criminal Tribunal to prosecute the crime of aggression against Ukraine. The idea has an undisputable theoretical merit as a remedy to Russia’s immunity from international law; the ICC cannot prosecute the crime because Russia does not recognize Rome Statute, and the UN Security Council is paralyzed by Russia’s veto power. Yet, the tribunal faces serious practical problems, as it is unclear how Russian officials might be prosecuted; no countries have the power to waive the immunity of foreign officials and thus cannot delegate this power to a court. Furthermore, obtaining witnesses could also be complicated by the restricted access of the court to Russian nationals. However, since there has not yet been a special criminal tribunal established by an agreement between UN General Assembly and a member state against a third country, this justice mechanism might have completely novel implications. Furthermore, most of the difficulties rest on the assumptions generated by current state of the war, and as it progresses, the military and political situation in both states shifts, which suggests that international prosecution might be a much more feasible option in the future. Meanwhile, a clear need for legal action against Russia’s act of invasion remains and the idea of Special Criminal Tribunal should not be discarded.
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[1] Oona Hathaway, The case for creating an international tribunal to prosecute the crime of aggression against Ukraine (Part I). Just Security. (20 Sept. 2022)
[2] Oona Hathaway, The case for creating an international tribunal to prosecute the crime of aggression against Ukraine (Part I). Just Security. (20 Sept. 2022)
[3] Reisinger Coracini, The International Criminal Court's Exercise of Jurisdiction Over the Crime of Aggression – at Last … in Reach … Over Some. Goettingen Journal of International Law. (2010). Abstract
[4] Oona Hathaway, The case for creating an international tribunal to prosecute the crime of aggression against Ukraine (Part I). Just Security. (20 Sept. 2022)
[5] Tim Allen, Trial Justice. London: Zed Books. (2006), pg. 1
[6] Tim Allen, Trial Justice. London: Zed Books. (2006), pg. 18
[7] UN General Assembly, Rome Statute. Kampala (2010). Art. 8 bis
[8] UN General Assembly, Rome Statute. Kampala (2010). Art. 5
[9] UN General Assembly, Rome Statute. Kampala (2010). Art. 15 bis
[10] JURIST Staff, Ukraine Dispatch: Calls Grow for the Creation of a Special Tribunal to Adjudicate Russian War Crimes. JURIST (14 Oc. 2022).
[11] Sergiy Sydorekno, Proving Genocide Committed by Putin, Lavrov, and the Russian Army. Interview of Ukrainian Lawyer. European Pravda (18 May 2022).
[12]Suzanne Lynch, UN General Assembly – Russian escalation – EU reaction. POLITICO (22 Sep 2022).
[13] Oona Hathaway, The case for creating an international tribunal to prosecute the crime of aggression against Ukraine (Part I). Just Security. (20 Sept. 2022).
[14] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).
[15] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).
[16] Verkhovna Rada of Ukraine, Constitution of Ukraine. Refworld (28 June 1996). Art. 125
[17] Claus Kreß, Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral Re Al-Bashir Appeal. Torkel Opsahl Academic EPublisher (2019).
[18] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).
[19] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).
[20] Jennifer Tahran, The case for creating an international tribunal to prosecute the crime of aggression against Ukraine (Part III). Just Security. (17 Oc. 2022).
[21] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).
[22] Kevin John Heller, Creating a Special Tribunal for Aggression against Ukraine Is a Bad Idea. Opinio Juris (7 Mar. 2022).