(Ця стаття також доступна українською мовою тут. This article is also available in Ukrainian here.)
It is welcome news that the U.K. Government and Germany’s Minister of Foreign Affairs recently endorsed the creation of an ad hoc aggression tribunal for the situation in Ukraine. The United Kingdom, however, takes the view that the tribunal should not be an international one, but instead “integrated into Ukraine’s national justice system with international elements,” and the German Foreign Minister appears to endorse a hybrid tribunal “deriving its jurisdiction from Ukrainian criminal law.” While the German formulation contains some ambiguity as to what type of tribunal is intended, the U.K. formulation is more problematic. It could place diplomatic efforts on the wrong track with a tribunal that risks being a nullity or worse.
The tribunal that is established needs to be fully international. Otherwise, it could be handicapped ab initio (hobbled at the knees) and unable to prosecute the very leaders who are allegedly most responsible for the commission of the crime. Beyond immunizing high-level leaders, prosecution of the crime of aggression by a hybrid tribunal within Ukraine’s court system would also suffer from other defects due, in part, to Ukraine’s constitutional law and other factors elaborated below.
A diplomatic solution is in the offing. The Parliamentary Assembly of the Council of Europe has the correct approach in calling for a “special international criminal tribunal for the crime of aggression” in its recent Resolution 2482 (2023). That institutional model would avoid the risks outlined below.
A hybrid tribunal within the Ukrainian court system would likely immunize top Russian leaders from accountability
Under the Rome Statute of the International Criminal Court (ICC), the crime of aggression is a “leadership crime” (Article 8bis, para. 1). That is, the offense covers only leaders who are “in a position effectively to exercise control over or to direct the political or military action of a State.” The reason for this firm limitation is that ordinary soldiers, even mid-level commanders, are not the ones who make the decision for a country to wage war.
Accordingly, to be able to prosecute such leaders, it is imperative that personal immunities from prosecution do not attach. As Professor Reisinger Coracini and I explained in our earlier article, in its 2002 “Yerodia” Judgment, the International Court of Justice made clear that personal immunities of a sitting head of state, head of government, and minister of foreign affairs apply to a national court system even in proceedings for international crimes. But the Court went on to say (para. 61) that the situation is different before international tribunals with jurisdiction over such crimes.
Subsequently, in the Decision on Immunity from Jurisdiction, Prosecutor v. Taylor, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) affirmed that no personal immunity attaches for a sitting head of state (Charles Taylor in that case) before an internationally established court such as the SCSL. In reaching its decision, the Appeals Chamber examined what is an “international tribunal” before which personal immunities would not attach. It held that the SCSL fit that category because its creation through the United Nations represented “an expression of the will of the international community” as a whole (para. 38), and therefore the court was “truly international” (para. 38). The Appeals Chamber further clarified that “the Special Court is not a national court of Sierra Leone and is not part of the judicial system of Sierra Leone exercising judicial powers of Sierra Leone” (para. 40). In 2019, a unanimous Appeals Chamber of the ICC decided in the same vein in the Jordan Referral re Al-Bashir Appeal and found that “there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court (emphasis added).”
Immunities would thus attach before a tribunal, including before a hybrid tribunal, within a single state’s national court system—what the U.K. apparently proposes, and what Germany may be proposing too. This means that if diplomatic efforts end up with a hybrid tribunal, established under national law and placed within a domestic court system that cannot overcome immunities for senior leaders, they will have ended up leaving the most glaring accountability loophole in place.
There’s a clear and optimal alternative. As Reisinger Coracini and I explained, the best way to avoid immunities attaching is a tribunal created by the international community as a whole. The Special Tribunal on the Crime of Aggression (STCoA), detailed extensively in a series on Just Security, is exactly the kind of international tribunal before which immunities would not attach (i.e., top level leaders would not be immune from prosecution). The proposed STCoA would be created: (1) after a request by the Government of Ukraine; (2) upon a resolution of the U.N. General Assembly; (3) which would recommend the creation of the tribunal and request the U.N. Secretary-General to initiate negotiations between the Government of Ukraine and the United Nations; (4) with the STCoA ultimately created by a bilateral treaty concluded between the Government of Ukraine and the United Nations. An increasing number of States (including Ukraine) rightly support the establishment of such a special tribunal as does a unanimous Parliamentary Assembly of the Council of Europe in its resolution late last month.
Aside from the issue of immunities, the U.K. proposal (which appears to be what Germany is also proposing) is defective or problematic for several other reasons.
A hybrid tribunal within the Ukrainian court system would likely run afoul of Ukraine’s Constitution
It is difficult to see how the U.K. model (a Ukrainian tribunal with international elements) could comply with Ukraine’s Constitution, which legal experts have been poring over. Article 125 of the Ukrainian Constitution states: “The establishment of extraordinary and special courts shall not be permitted.” Ukraine’s Constitution cannot be amended while the country is under martial law or a state of emergency (Art. 157) as it is presently. Thus, as Professor Oona Hathaway and Ukrainian lawyer Alexander Komarov explained in an earlier article at Just Security (English version; Ukrainian version), Ukraine’s Constitution prohibits it from creating any hybrid tribunal within the Ukrainian court system.
Judgments by a hybrid tribunal within the Ukrainian court system would carry nowhere near the authoritative weight as judgments by an international tribunal
Second, the verdicts of Ukrainian judges (and, to a lesser extent, a mixed bench of Ukrainian and international judges) will carry nowhere near the authoritative weight as judgments rendered by a fully international tribunal created through the U.N. system. To the contrary, however skillfully and fairly the proceedings would in fact be conducted, they would become an easy target for a propaganda campaign denying the impartiality of the Ukrainian lawyers involved. This would be even more so, if Ukraine holds crime of aggression trials in absentia, which its laws permit (Criminal Procedural Code of Ukraine, chapter 24-1). If States want to convey a powerful message about the aggression committed against Ukraine—and to help rebalance the global legal order against such violations of the U.N. Charter—it is imperative that the tribunal, through its institutional design, directly mirror the conviction that the prosecution of those allegedly most responsible for the crime of aggression in the Ukraine war is in the interest of the international community as a whole.
Belarussian leaders would dodge responsibility
An additional reason to avoid a hybrid tribunal within Ukraine’s court system is that Belarus’ most senior leadership would most likely be let off the hook. None of the cases of the ICC—which will cover war crimes, crimes against humanity, and, to the extent applicable, genocide—will involve Belarus’ senior leadership because they are, from all appearances, not involved in those crimes. Thus, absent an aggression tribunal able to prosecute Belorussian leadership (i.e., without their acquiring immunity), there will be no accountability for Belarusian leaders, creating an additional impunity gap for their crimes.
Ukrainian warrants are likely not to carry the same weight as warrants issued by an international tribunal
Warrants issued by a Ukrainian court will likely not carry the same weight as warrants issued by an international tribunal. Admittedly, a tribunal that is formed by agreement between the U.N. and Ukraine (as the STCoA would be) cannot compel other States to cooperate. Yet, if the STCoA is formed through the U.N. system, it can be expected that the States voting in favor of its creation, and particularly those States leading in funding it, will have a sense of ownership regarding the tribunal and work toward the execution of its arrest warrants. In fact, third States might even enter into separate voluntary cooperation agreements with the STCoA whereby they actually owe cooperation obligations to the tribunal. While the enforcement of warrants has admittedly sometimes been problematic at the international level (e.g., for the ICC itself), warrants of an international tribunal still are likely to carry greater weight than warrants issued by a Ukrainian tribunal.
Ukrainian law only allows insufficient sentences for the crime of aggression
Finally, under Ukraine’s Criminal Code, the crime of aggression carries a sentence of between seven to fifteen years. Specifically, it provides in Article 437:
(1) Planning, preparation or waging of an aggressive war or armed conﬂict, or conspiring for any such purposes shall be punishable by imprisonment for a term of seven to twelve years.
(2) Conducting an aggressive war or aggressive military operations shall be punishable by imprisonment for a term of ten to ﬁfteen years.
Those sentences, which a hybrid tribunal within the Ukrainian court system would need to apply, are extremely short if one considers responsibility for the decision to initiate the invasion of Ukraine, from which all the other crimes and casualties and harms of the war flowed. That is, absent the initial aggression, there would have been none of the other crimes committed, nor any civilian or military fatalities, or any of the massive destruction of property. That’s the very reason the Nuremberg tribunal gave for elevating the importance of the crime of aggression above all others. (The harms in the present circumstance arguably even include higher famine rates in many parts of the world, which would not be occurring absent the war and blockage of Ukrainian grain exports.)
While a tribunal created through the U.N. system would (appropriately) not utilize the death penalty, penalties would range up to life in prison.
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Ultimately, it would be mistaken to have a court or tribunal—as the U.K. apparently proposes—that is unable to prosecute those who actually decided to commit the aggression, letting lower-level officials take the blame. While the ICC’s work in investigating and prosecuting war crimes, crimes against humanity, and, potentially, genocide, is critically important, justice for the crime of aggression (the supreme crime) is not the same as justice for these other crimes. This is why a STCoA is needed even if the ICC prosecutes Russian leadership for other core crimes—and it is too soon to know if the ICC will have the linkage evidence to be able to do so. When nothing less than the stability of the world order is at stake—the sanctity of the borders of all States, no matter from which region they hail—one needs a multilateral solution, endorsed through the U.N. system, that is able to prosecute at the leadership level.
By pressing for a solution within the Ukrainian legal system and not a special international tribunal, one would (a) rely on Ukraine’s definition of the crime of aggression (rather than the internationally agreed definition codified in Article 8bis of the ICC’s Rome Statute) and (b) fail to overcome immunities enjoyed by the senior leaders. That’s a perfect combination if a country were trying to avoid setting precedent for an effective and legitimate international tribunal for the crime of aggression, which could simultaneously embolden efforts to amend the Rome Statute’s jurisdiction over the crime of aggression. Are some States willing to weaken prosecutions of senior Russian and Belarusian leadership to avoid setting such precedent?
Lastly, two points on timing. First, contrary to the suggestion of former ICC Prosecutor Luis Moreno Ocampo, endorsing an ad hoc tribunal does not mean endorsing selectivity. The STCoA must be part of a two-step process of an ad hoc solution now and fixing the ICC’s jurisdiction over the crime in the future (a process that takes much more time than the urgency of the current situation allows). And, second, the President of the European Commission just announced the establishment in The Hague of an International Centre for the Prosecution of the Crime of Aggression in Ukraine to collect and preserve evidence. Such an office, while important for the preservation of evidence, is absolutely no substitute for an international tribunal. States must not use the existence of this office to delay the creation of the STCoA. The existence of this office might serve the interests of those who prefer to hold off on the creation of the STCoA until after the end of the conflict. As we near the first anniversary of the invasion, the international community needs to harness momentum to act and create the special tribunal for the crime of aggression, soon not later.