07 Mar Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea
Nearly 40 legal and political luminaries, including many people for whom I have the utmost respect — such as Dapo Akande, my Doughty Street colleague Helena Kennedy QC, and Ben Ferencz — have signed a Combined Statement and Declaration calling on the international community to create a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine. The entire Statement and Declaration is well worth a read, but here is the critical paragraph:
[We] resolve, in a spirit of international solidarity, to grant jurisdiction arising under national criminal codes and general international law to a dedicated international criminal tribunal that should be established to investigate and prosecute individuals who have committed the crime of aggression in respect of the territory of Ukraine, including those who have materially influenced or shaped the commission of that crime.
I wasn’t asked to sign the Combined Statement and Declaration, but if I had been I would have respectfully declined. I agree with the signatories’ desire to “leave no stone unturned in bringing to an end the terrible events we are now seeing, thereby ensuring that those who have unleashed such horrors are subject to personal accountability under the criminal law, so that justice can be done.” I share their (implicit) critique of the jurisdictional limitations on the prosecution of aggression at the ICC. (I have been writing for years about states’ unconscionable decision to exempt non-states parties from the crime.) And I have made clear on a number of occasions in the past two weeks (see here for a pre-invasion example) that I believe Putin and many other high-ranking Russian political and military leaders have committed the crime of aggression. But I still believe the Special Tribunal is a bad idea.
Some of my concerns are practical. The Statement says that such a tribunal “can be set up with speed,” noting that “nations met in London in 1942 to draft a resolution on German war crimes, which led, at the end of the conflict, to the creation of an International Military Tribunal and the Nuremberg trials.” It is true that the Allies were able to design the Nuremberg Tribunal relatively quickly, but the planning took place in mid-1945, not 1942, and the Allies didn’t begin to make concrete plans until it appeared likely that they were going to defeat the Nazis. No one has any idea when the invasion of Ukraine will end — and most experts believe that Russia will eventually prevail, at least militarily. So post-conflict Ukraine is likely to feature either indefinite Russian occupation or a new Ukrainian government that is a puppet of Moscow — a far more challenging situation for an international criminal tribunal than the situation the Allies faced after WW II.
The unlikelihood of a Ukrainian victory foregrounds the key practical problem a Special Tribunal would face: obtaining suspects and evidence. Nearly all of the suspects and evidence would be in Russia, because unlike other international crimes the crime of aggression focuses on decisions that are taken and plans that are made behind closed doors, not actions on the battlefield. Russia would obviously refuse to cooperate with a Special Tribunal after the conflict ends, and the one avenue that would exist for enforcing its cooperation, the Security Council, would be of no use thanks to Russia’s permanent veto. Effective investigation and prosecution would thus almost certainly require regime change in Russia — in which case, as Sergey Vasiliev has already pointed out at EJIL: Talk!, the Special Tribunal would not be necessary. If Russia wanted the architects of the Ukraine invasion to be prosecuted internationally, the new regime could ratify the Rome Statute and accept the aggression amendments. (Ukraine would presumably do likewise). And if the new regime didn’t want international involvement, it could simply prosecute former high-ranking political and military officials itself. The primary hesitation that scholars have about states prosecuting aggression — that such prosecutions require specifically condemning a state, not just particular individuals — does not apply to a state prosecuting its own aggressive acts. And a genuinely democratic Russia would have a judicial system more than capable of conducting fair and effective aggression prosecutions.
It is possible, of course, that Ukraine’s government will survive the present conflict. Thanks to the bravery and skill of the Ukrainian army and ordinary Ukrainian citizens, as well as unprecedented arms transfers from the West, a Russian victory seems less inevitable than it did a week ago. If the government does survive, the ICC would still be off the table because Russia is not a member of the Court. But nothing would prevent Ukraine from prosecuting Russian political and military officials in its domestic courts. It would no doubt need technical and financial support from the international community; its previous attempts to prosecute aggression in the wake of Russia’s intervention in Donbas and Crimea were legally problematic. (Yanukovich was prosecuted in absentia and the other two defendants were mid-level officers who could not satisfy aggression’s leadership requirement.) Ukraine would also face almost insuperable obstacles actually getting its hands on Russian defendants. But so would the Special Tribunal, as noted above. If Russian defendants did somehow fall into Western hands, wouldn’t Ukrainian prosecutions be better than international ones, in terms of both the message they would send and the positive effect they would have on Ukraine’s judicial system?
Given these considerations, it is difficult to see why the international community should create the Special Tribunal. One possible answer is that such a tribunal would send a powerful message to Russia and other-would be aggressors that the international community will not tolerate aggression. The Declaration hints at that expressive rationale when it affirms that “international solidarity is necessary to uphold the rule of law and the principles of the United Nations Charter, including the prohibition on the use of force.” There is a grain of truth to that answer — but I don’t think it justifies creating the Special Tribunal. As Alonso Gurmendi has ably documented, 143 states have already condemned Russia’s invasion of Ukraine as an act of aggression, including a number that would ordinarily be loathe to criticise a powerful state like Russia. So do we really need a Special Tribunal to remind us that aggression is not only unlawful but criminal? And what message would it send if, as seems likely, the international community created a Russia-specific aggression tribunal that never managed to prosecute anyone? Wouldn’t that simply reaffirm that powerful states can commit aggression with impunity? And even if the Special Tribunal did manage to hold successful prosecutions, would other would-be aggressors really be afraid that, if they committed aggression, the international community would go to the trouble of creating another ad hoc tribunal? (More on the selectivity problem later.)
Another possible justification for a Special Tribunal is that, as an international court, it would be able to prosecute Russian officials who would be entitled to immunity ratione personae in national courts, most notably Putin and Sergey Lavrov. (And perhaps other senior officials. As Dapo Akande and Sageeta Shah have noted, the ICJ left open the category of senior officials entitled to personal immunity in the Arrest Warrant case.) The Combined Statement and Declaration do not specifically mention the immunity issue, but another high-profile supporter of creating an special tribunal for aggression, Larry Johnson, has argued at Just Security that such a tribunal would be “clearly able to pierce the veil of head of state immunity.”
It is true that the ICJ suggested as much in the Arrest Warrant case:
[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VI1 of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention.
Unfortunately, the ICJ never explained either why international criminal tribunals do not have to respect personal immunities or what exactly makes a particular criminal tribunal international. For some tribunals, the explanation is relatively straightforward. Nazi officials did not enjoy personal immunity at the IMT because the Allied Control Council, which served as the government of Germany following the war, implicitly waived their immunity. Defendants at the ICTY and ICTR did not enjoy personal immunity because those tribunals were created pursuant to binding Chapter VII resolutions of the Security Council. And defendants who are nationals of state parties don’t enjoy personal immunity at the ICC because states implicitly waive their officials’ immunity when they ratify the Rome Statute.
It is more difficult to explain why there would be no personal immunity for ICC defendants who are nationals of states that have not ratified the Rome Statute and whose crimes were committed in a situation not referred by the Security Council. The ICC is based on states pooling their territorial and national jurisdiction; as the saying goes, what one state can do alone, many states can do together. The corollary of that saying, however, is that states cannot delegate to the Court powers that they do not themselves possess. The ICJ made clear in the Arrest Warrant case that states do not have the power to ignore the personal immunity of other states’ government officials, not even when they are credibly suspected of committing serious international crimes. A fortiori, states could not create an ICC with the power to ignore the personal immunity of government officials from non-member states.
A complete explanation of the personal immunity issue is beyond the scope of this post. I offer the above thoughts simply to counter blasé assertions that a Special Tribunal makes sense because it could prosecute individuals like Putin who would be entitled to personal immunity before a national court. As the Special Tribunal would be created by treaty, not by the Security Council acting pursuant to its Chapter VII authority, it is anything but clear that it would have the authority to set aside the personal immunity of senior Russian officials. And you don’t have to take my word for it: during the Charles Taylor case at the SCSL, Philippe Sands, one of the most fervent proponents of the Special Tribunal, took the position (in an amicus brief) that “two States may not establish an international criminal court for the purpose, or with the effect, of circumventing the jurisdictional limitations incumbent on national courts.”
Upon examination, then, the supposed benefits of creating a Special Tribunal, as opposed to a national prosecution, turn out to be largely illusory. A Special Tribunal would not find it easier to prosecute Russian officials for aggression than a national court. A Special Tribunal is not necessary to affirm the unacceptability and criminality of aggression. And a Special Tribunal would be no less obligated than a national court to honour the personal immunity of people like Putin and Lavrov.
But that is not the entirety of the case against the Special Tribunal, because its creation would also comes with significant practical and expressive costs. To begin with, there is the literal cost: creating a new tribunal requires hiring judges, prosecutors, investigators, administrators, clerical staff, etc. Tribunals need to be housed somewhere. Defence attorneys have to be paid. And so on. To be sure, with enough political support from states, these costs would hardly be prohibitive. The Special Tribunal for Lebanon, which is probably the best comparison in terms of its focused jurisdiction, operated on about €60 million per year — pocket change for states like the US and the UK. But there are many other already-existing accountability mechanisms and efforts that could benefit from a few hundred million euros. (The Special Tribunal would no doubt be around for years, given the practical obstacles it would face.) And if the Ukrainian government does survive the conflict, surely those few hundred million would be better spent helping it prosecute Russian aggression itself.
The most significant cost of the Special Tribunal, however, would be the message its creation would send about the selectivity of international criminal justice. We all know that selectivity is inherent in the system; it wouldn’t be possible to prosecute all of the international crimes committed in the world even if states were far more committed to such prosecutions than they are now. But sometimes selectivity is so obvious, and so indefensible, that international lawyers simply have to say “enough is enough.” Less than two decades ago, the US and the UK, along with a coalition of dozens of other states, invaded Iraq with massive military force, overthrew its government, and occupied its territory. And it did so based on a series of knowing and intentional lies about Iraq being involved in 9/11 and possessing weapons of mass destruction. That invasion was unlawful and criminal — the most flagrant act of aggression since the Vietnam War — and its results were predictably catastrophic: approximately 200,000 Iraqi civilians killed (30,000 by the end of April 2003 alone), nearly 5,000 coalition soldiers lost, more than 2,000,000 refugees created, trillions of dollars wasted, and the entire region destabilized. Yet not a single American or British leader has ever been prosecuted for aggression.
Nor did the war in Iraq lead to high-profile calls for creating a Special Tribunal for the Punishment of the Crime of Aggression Against Iraq. Indeed, despite the flagrant criminality of the invasion, a tribunal would have been unthinkable given the power of the states that authored it and the number of less powerful states that chose to support it. So to create a Special Tribunal now for Russia’s invasion of Ukraine would not, contrary to the Combined Statement and Declaration, “uphold the rule of law and the principles of the United Nations Charter, including the prohibition on the use of force.” It would instead send a message that the “international community” cares about some crimes of aggression more than others.
Please do not misunderstand me: as I said above, I think Russia’s invasion of Ukraine is unequivocally the crime of aggression. I want to see Russian political and military leaders prosecuted for that crime, and I don’t believe the failure to prosecute George Bush and Tony Blair is a justification for not prosecuting Putin. But how Russian officials are prosecuted, and by whom, matters. A Special Tribunal created and run by the same states that invaded Iraq would not be legitimate. The hands of those states — particularly the UK and US, but also other states involved in the invasion itself such as Australia and Spain — are simply too unclean.
It would also be a travesty if the Special Tribunal was created by the same states that were responsible for neutering the crime of aggression at the ICC. The ICC could have been given jurisdiction over acts of aggression committed by non-state parties on the territory of state parties. That is the way every other crime within the jurisdiction of the Court operates. If certain powerful states had not insisted on excluding non-state parties from the crime of aggression — the US, UK, and France foremost among them — I think it is extremely likely that Ukraine would have joined the ICC and ratified the aggression amendments a few years ago. That would not have prevented Russia from invading, but at least there would be no need now to create a brand new ad hoc tribunal for one type of international crime and one specific invasion. After all, the whole point of a permanent international criminal court is to make such piecemeal accountability efforts unnecessary. Moreover, if the ICC had jurisdiction over Russia’s aggression toward Ukraine, the hundreds of millions of euros that will be necessary to create the Special Tribunal could be given to the Court instead — precious funds that would facilitate every aspect of the OTP’s investigation in Ukraine, not just aggression.
If, despite all the drawbacks, the international community is committed to creating a new tribunal that can prosecute Russian officials for the committing aggression against Ukraine, at the very least it should create one that is permanent and that the widest jurisdiction possible. It is probably too late for such an International Criminal Tribunal for Aggression to prosecute the architects of the Iraq invasion, but a permanent tribunal might at least deter some future acts of aggression. And, of course, a permanent tribunal that could potentially investigate any act of aggression (emphasis on “potentially”) would be far less subject to allegations of selectivity than an ad hoc tribunal created specifically and solely to deal with Russia’s invasion of Ukraine.
I anticipate that the signatories of the Combined Statement and Declaration would argue that a successful Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine would serve as a powerful precedent for creating a permanent tribunal for aggression. But I don’t think that’s true. As the late and much missed Rob Cryer often pointed out, states are much more willing to create “safe” international tribunals whose rules apply only to others than “unsafe” ones whose rules also apply to them. A successful Special Tribunal might serve as a precedent for future ad hoc aggression tribunals, but it would be unlikely to encourage powerful Western states to create a permanent mechanism with jurisdiction over their own acts of aggression. Scholars may decry selective justice, but powerful states are generally fine with it.