A Special Tribunal for the Russian Crime of Aggression in Ukraine

Renowned international lawyer Philippe Sands was one of the first to lend support to the idea, in a column co-written with former British Prime Minister Gordon Brown. Philippe Sands is also the author of East West Street, an outstanding book that retraces the origins of the concept of “crimes against peace” that germinated in Nuremberg.

Devising a Nuremberg trial for the 21st century

Where should Russia’s leaders face trial for the crime of aggression against Ukraine? The crime of aggression is certainly within the ICC’s jurisdiction ever since the Kampala amendments (2010) came into force in 2018 - but only if the nation(s) in question are signatories to the Rome Statute (the treaty that established the ICC). That’s neither the case for Russia (which withdrew its signature from the founding treaty in 2016) nor for Ukraine (which granted the ICC authority to investigate war crimes on its soil without signing on to the Statute).

That leaves two other options:

• An ad hoc international tribunal formed by resolution of the United Nations General Assembly, since going through the Security Council is off the table due to Russia’s right of veto.
• A “hybrid” court that is integrated into Ukraine’s justice system but with the addition of international judges and foreign funding. The European Union would be an ideal partner for Ukraine, with Ursula von der Leyen and member states such as France already expressing willingness to work with Kyiv on this kind of initiative. Another option could be a “core group” of countries forming a “coalition of the willing”.

Of course, the international sheen of a UN-established tribunal would lend more authority. That’s what inspired Ukraine and the three Western permanent members of the Security Council (the United States, France and the United Kingdom) to circulate a draft resolution in New York, designed to “test the waters".

But it is a concern not as many UN member states are willing to vote in favor of a decision that would ostracize Russia’s president, as opposed to condemnation in principle. As we’ve already seen, when it comes to the practical consequences of such a condemnation - paying war reparations for instance - the votes in favor are not as numerous (94 in favor). And experience shows that setting up a UN international court under the authority of the Secretary-General would mean lengthy negotiations. Who knows how long it would take until it’s actually up and running?

From a legal standpoint, it’s unclear whether a tribunal established by resolution of the UN General Assembly would not be binding for Russia. Previous tribunals set up to try UN member states - Rwanda and the former Yugoslavia - were established by the Security Council under Chapter VII of the United Nations Charter.

And so in terms of feasibility, a hybrid court seems more realistic. And in fact, the two options could be made compatible. An agreement could be signed between Ukraine, the EU or a group of countries on a voluntary basis to set up a court, which could then seek UN approval (or even cooperation). Proponents of an international tribunal argue that their solution would make it easier to overcome hurdles such as immunity for heads of state under international criminal law. But that’s also not a given. And there are other challenges that shouldn’t be underestimated. For one, we can’t realistically expect Russia’s top brass to ever be arrested - a stark contrast to the victor’s justice of the Nuremberg trials. That would mean a trial and conviction in absentia, which raises a major issue of principle about the rights of defendants, one to which the English-speaking world is particularly sensitive to.

It would give the court an undisputable legal basis, and not without some irony: the crime of aggression is defined in both Ukrainian and Russian law, as a holdover from the Soviet Union where it was introduced after… Operation Barbarossa!

To what end?

So far we’ve taken for granted that Russia’s crime of aggression should not go unpunished. Yet that idea has plenty of skeptics among both policymakers and the public. With all the uncertainty and risk involved, would it really be worth it? Is it not ultimately a quixotic undertaking? One of the substantive arguments against this is that if the goal is a peace agreement, it would be inconsistent to treat our potential negotiating partner as a criminal. The counterargument - that noble idea that there can be “no peace without justice” - doesn’t seem to carry much weight. Maybe the way out of this dilemma lies in the fact that an agreement not to pursue prosecution can be an instrument used for peace talks.

Other objections have to do with what you might call the “pedigree” of the other major powers. It won’t have eluded the United States that some of the charges against Russia could also apply to its 2003 invasion of Iraq. The powers like the United States, but also France, the United Kingdom and others that believe they  have a duty to become militarily involved in some of the world’s hotspots might fear that a “Nuremberg 2.0” could provide a precedent to be used against it by a coalition of hostile powers. The United States is not a member of the ICC and France never ratified the Kampala agreements. Furthermore, it seems clear that setting up a special tribunal for Ukraine would only fuel  accusations of  a double standard, a common refrain in the Global South: why all this severity against Russia when America has been treated with so much leniency?

We won’t debate the merits of these objections here, but we will offer at least two ends that, from a long-term political and strategic perspective, might justify seeking an international conviction for Russia’s crime of aggression against Ukraine:

First, one of the issues of our time is what political scientist Ghassan Salamé calls “deregulation of force”. It is in the interests of Western powers, and all nations, to try to reverse the current trend and restore credibility to the international prohibition on the use of force, a founding principle of the United Nations Charter. Establishing a tribunal for the crime of aggression in Ukraine, in whatever form that tribunal may take, could contribute toward that goal. And precisely because it entails risk for countries like France and the United Kingdom, it would signal their resolve to end the practice of unilateral unlawful use of force.

With both of these grounds for action, the driving motivation behind a tribunal for Ukraine must be to stigmatize the perpetrators of horrific crimes. Without holding such a trial, we have failed to disgrace Syrian dictator, Bashar al-Assad, normalizing the sense of impunity, the possibility to get away with the most brazen violation of international law.

Proposals

Our analysis leads us to conclude that there are different levels of responsibility to be assumed by different stakeholders:

• It’s first and foremost a European responsibility - that of the European Union, possibly along with other European countries - to support Ukraine in establishing a special tribunal for the crime of aggression. As outlined above, a hybrid tribunal seems to be the most practical option and the one that puts particular responsibility on Europe.
• To counter the objection that a “regional” court would lack credibility, the tribunal should seek approval or support from the United Nations. The timing of an appeal to the General Assembly could be chosen based on what’s happening on the ground; there’s the risk that going through the United Nations too early could hamstring the initiative (the challenge of drumming up a majority could lead to a watered-down resolution or delays in setting up the tribunal).
• The first step could be establishing a Provisional Special Prosecutor’s Office. The Netherlands has already volunteered the Hague as a location. To avoid a “fragmentation” of international criminal law, as experts fear, the Prosecutor of the ICC could be asked to work alongside the prosecutor of this hybrid tribunal; that would require the agreement of the parties to the Rome Statute.
• This first step of creating a Provisional Prosecutor’s Office could be done quickly (by February 24, 2023), which would then give the international community more time to study (and negotiate) the preferred format for the court itself and the associated legal complications.
• While it would be understandable for the United States not to take the lead, for the reasons outlined above, it can be expected to not interfere with an initiative led by Ukraine and Europe.

Copyright image : Andrea RENAULT / AFP