(Ця стаття також доступна українською мовою тут.)
Last week, the international community condemned Russian aggression against Ukraine in resolutions adopted with overwhelming support in the United Nations General Assembly and the Human Rights Council. The threat or use of force contrary to the U.N. Charter is illegal under international law, and international criminal responsibility may arise from decisions to commit an act of aggression. Now, the same international community must act to ensure accountability for this grave violation of international law, to reinforce the UN Charter and uphold the rules-based international order.
In light of the lack of jurisdiction of the International Criminal Court (ICC) to prosecute the crime of aggression committed by nationals of States that are not parties to the Rome Statute of the ICC, various proposals have surfaced for how one might be able to exercise jurisdiction in the Ukraine situation. There is one proposal—also suggested in the article by Larry Johnson—that stands heads and shoulders above the others: the General Assembly must recommend the creation of a hybrid criminal tribunal for the crime of aggression to be negotiated and agreed to between the United Nations and the Government of Ukraine.
A hybrid tribunal created upon the recommendation of the UN General Assembly, based on an agreement between the UN and Ukraine
A tribunal created upon the recommendation of the General Assembly has a number of distinct advantages. First, it would be the most multilateral approach, coming from the General Assembly, which, given its resounding support for the resolution on aggression against Ukraine last week (141 member states in favor and only 5 voting against), is well positioned to take further steps. The General Assembly is also the most appropriate body to go to when the Security Council is paralyzed by the veto power of the Russian Federation, as it is currently.
Second, this has been done before: there is both the Special Court for Sierra Leone (SCSL) precedent, formed by agreement between Sierra Leone and the United Nations, and the precedent of the Extraordinary Chambers in the Courts of Cambodia (ECCC), formed by agreement between Cambodia and the United Nations. When States reach the point of drafting the tribunal statute, it is the SCSL Statute that should be followed, as the ECCC’s having co-investigative judges and co-prosecutors led to logjams that the SCSL, albeit in a different context, did not encounter. Whenever the co-investigative judges and co-prosecutors did not reach agreement (which did happen largely due to pushback by the Government of Cambodia in trying to control the ECCC and limit prosecutions), the court was deadlocked until a resolution process could be pursued.
While there was a Security Council resolution (resolution 1315 of August 14, 2000 (notably not invoking Chapter VII)) requesting the Secretary-General to negotiate an agreement between the UN and the Government of Sierra Leone, the SCSL was not created by the Security Council (as the Yugoslav and Rwanda tribunals had been), but created, as mentioned, by agreement between Sierra Leone and the UN. As to the ECCC, as noted in Larry Johnson’s article, a resolution recommending the establishment of the ECCC was approved by the General Assembly (resolution 57/228 of May 13, 2003.) Both instances illustrate the ability to create a tribunal without going through the Security Council where the government at issue (Ukraine) is willing to consent to it.
Third, as Larry Johnson also agrees, a hybrid (or international) tribunal avoids certain immunities issues that one reaches at either the national level, or which might be encountered if the jurisdictions of national countries were pooled. The Special Court for Sierra Leone held that a sitting Head of State (Liberian President Charles Taylor) could be tried before that court, and he ultimately was tried. That ruling would be a useful precedent in the current situation.
Expanding the ICC’s jurisdiction
Of course, simply amending one or two sentences of the jurisdictional provisions of the Rome Statute would be much better, one would think, than having to create an entirely new tribunal. However, the crime of aggression negotiations were lengthy and contentious (negotiation of the definition was open to all States—Russia attended—and ICC States Parties had vastly different positions regarding jurisdiction). While an amendment would be the ideal route, the political will is likely not there to expand crime of aggression jurisdiction to all non-States Parties. Such negotiations would involve going to the ICC Assembly of States Parties’ (ASP) Working Group on Amendments, negotiating an acceptable amendment, then putting it to a vote before the ASP (next set to meet in December 2022). This is a cumbersome and time-consuming process with no great prospect of success—and time is not on our side in the current situation.
In the long run, to be sure, all states should join the currently amended Rome Statute, and all States Parties that have not done so should ratify the crime of aggression amendment. Only then will there truly be enforcement of Article 2(4) of the UN Charter, when all states have the courage to agree that their nationals will not commit the crime of aggression or be subject to investigation and/or prosecution if they do.
Creating a Nuremberg-style tribunal
In recent days, proposals have been floated to create a Nuremberg-style tribunal to prosecute the crime of aggression in the situation in Ukraine. This was innovative in 1945. However, the International Military Tribunal at Nuremberg was accused of being victor’s justice (as was the Tokyo tribunal even more). We have come a long way in the field of international justice since then. While the initiative has been useful to spark discussion, setting modern precedent for a handful of states to create a tribunal denominated as “international”—much as it could be appealing in the current situation—sets a poor precedent. It is selective justice, much like the UN Investigative Team to Promote Accountability for Crimes Committed by Da-esh (UNITAD), which has the mandate only to investigate crimes by the so-called Islamic State (ISIL) in Iraq. Next time Russia, Belarus and other states might design such a tribunal. Such selective (if expeditious) attempts at justice or evidence-gathering should be rejected for ones that carry more multilateral support. Kevin Jon Heller’s post today is largely critical of an “aggression specific” tribunal, although most of his critiques relate to the proposal for a Nuremberg-style tribunal; his point that any tribunal would have difficulty apprehending Russian nationals is true, but one does not give up on justice only when it becomes difficult.
The urgency of the situation
Lastly, let’s address the imperative of swift action. The General Assembly recommendation for the creation of the tribunal, and an agreement between the United Nations and the Government of Ukraine on the establishment of a crime of aggression tribunal should be concluded expeditiously. We must ensure accountability for the violation of the UN Charter’s core norm on which the entire international order is anchored—the prohibition against the use of force in the UN Charter and its most extreme manifestation in the crime of aggression.