A Concerning Update About a Special Tribunal for Russian Aggression

On Tuesday, the Office of the President of Ukraine issued a press release concerning plans for creating a Special Tribunal for Russian Aggression. Most of the information in the press release was boilerplate, reaffirming the need for such a tribunal and expressing hope that the international community will get behind one. One comment, however, set off my lawdar:

As noted at the meeting, the political decisions made by the partner countries in support of the creation of an international tribunal should be transformed into practical steps. Thus, in the Netherlands, it is planned to create an Interim Prosecutor’s Office so that representatives of the Office of the Prosecutor General of Ukraine can start forming the evidence base for the crime of aggression and preparing charges.

Simply put, Ukraine creating an “Interim Prosecutor’s Office” (IPO) is a very bad idea. I understand why Ukraine wants to start building aggression cases against Russian leaders now, because we have no idea when a Special Tribunal might actually be up and running. And there is nothing wrong with Ukraine collecting evidence that might be useful for future prosecutions at a Special Tribunal. Preparing charges, however, is a very different story. Ukraine has repeatedly insisted that a Special Tribunal should be a truly international court, and an essential aspect of internationality is independence. No matter how it is created, a Special Tribunal cannot be in any way beholden to Ukraine — or to any state that supports it. And that applies to the future OTP as well as to the future judiciary. It will be for the OTP to decide which Russian defendants to charge and what charges to bring against them. Not Ukraine.

It is possible, of course, that Ukraine simply intends to provide a future OTP with suggestions concerning aggression cases. But that interpretation is difficult to reconcile with Ukraine intending to create an “Interim Prosecutor’s Office” — especially one staffed, per media reports, by actual Ukrainian prosecutors. The title and the capital letters suggest that Ukraine sees the IPO as having some kind of formal role in the Special Tribunal’s functioning — an office that would carry out prosecutorial pre-trial duties until the OTP itself is operating.

If so, Ukraine’s plan is inconsistent with the future OTP’s prosecutorial independence and threatens the overall legitimacy of the Special Tribunal. Imagine what would have happened at the ICTY if a Serbian defendant accused of genocide had discovered that a group of Bosnian prosecutors, not OTP ones, had drafted his Indictment. At best that discovery would have complicated the prosecution. At worst it might have ended it. A similar discovery at the Special Tribunal would be even more damaging. The ICTY at least had jurisdiction over international crimes committed by any of the states involved in the conflict in the Balkans, thereby minimising (though certainly not eliminating) issues of victor’s justice. The Special Tribunal will enjoy no such jurisdictional cover, because it is being created specifically and solely to deal with Russian aggression against Ukraine. That selectivity itself would undermine the Special Tribunal’s legitimacy, for reasons I have discussed elsewhere. If it ever turned out that charges against a Russian defendant were prepared by Ukrainian government officials and not by the OTP working independently, I don’t see how the Special Tribunal could ever recover.

The situation wouldn’t be much better if Ukraine sees its “Interim Prosecutor’s Office” as nothing more than an informal advisory group concerning the selection of defendants and charges. That would still call into question the independence of the OTP’s own efforts, and the problem could not be solved by the OTP insisting (as it no doubt would) that it made all charging decisions based solely on the evidence available to it. Suspicion of undue influence by a sympathetic victim state would always exist — especially if the OTP charged a defendant the IPO had “informally” encouraged it to.

Even an informal “Interim Prosecutor’s Office,” then, is a bad idea. Ukraine needs to immediately abandon its plans to create the office — and should scrupulously avoid offering any public suggestions concerning who a future OTP should charge and how. Collecting evidence that will eventually be turned over to the Special Tribunal is one thing. Getting involved in decisions that are at the heart of prosecutorial independence is quite another.