06 Feb The Jordan Appeal Supports a Hybrid Tribunal Denying Personal Immunity
Support has been growing in recent weeks for creating a hybrid tribunal to address Russia’s criminal act of aggression against Ukraine instead of an ad hoc Special Tribunal for the Crime of Aggression (STCoA). The German Minister of Foreign Affairs has endorsed a hybrid tribunal over an STCoA, as has the United Kingdom’s Foreign Secretary. Even the US War Crimes Ambassador, Beth van Schaack, recently suggested that the US prefers a hybrid tribunal.
The most common criticism of a hybrid tribunal is that, because it would be a Ukrainian court, it would be unable to set aside the personal immunity of Vladimir Putin and Sergey Lavrov. Earlier today, for example, Jennifer Trahan made precisely that claim at Just Security:
Immunities would 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.
By itself, a hybrid tribunal established as part of the Ukrainian judicial system with the support of the Council of Europe (what I’ve previously recommended) would not be sufficiently international to set aside Putin and Lavrov’s personal immunity. But there is another, more promising option that Ukraine and other states should consider: a hybrid tribunal created by an agreement between the UN and Ukraine at the behest of the UN General Assembly.
Numerous scholars and NGOs have argued that an ad hoc tribunal created in such a manner would not have to recognize personal immunity because it would be a genuinely international court. Just last week, for example, the Open Society Justice Institute released a report entitled “Immunities and a Special Tribunal for the Crime of Aggression against Ukraine.” Here is what the report concludes (p. 16):
If the Special Tribunal follows the UNGA Model and, thus, is established following an UNGA resolution, it would have the strongest claim to the status of being an international tribunal. This is not because the UNGA has specific legal authority to create an international tribunal (unlike the UN Security Council), but because the UNGA with 193 UN Member States has a wide membership. A resolution passed by the UNGA would indicate that many States, across the world, support the establishment of the Special Tribunal. This endorsement would bolster the legitimacy of the Special Tribunal as an international tribunal before which troika members would not benefit from personal immunity.
I agree with OSJI’s legal argument insofar as the General Assembly resolution in question was overwhelmingly supported by states (OSJI is vague about how many states it believes must support a resolution). But if the argument works for an STCoA, it works for a hybrid tribunal as well. A hybrid tribunal created by a UN/Ukraine agreement at the behest of the General Assembly would no less “act on behalf of the international community” than an STCoA created by a UN/Ukraine agreement at the behest of the General Assembly.
Supporters of an STCoA will no doubt try to distinguish it from a hybrid tribunal by invoking what OSJI calls the “second criterion of an international court” — namely, “that it exercises jurisdiction on behalf of multiple States” (pp. 11-12):
An international court clearly cannot exercise jurisdiction on behalf of only one State. Thus, a single State cannot establish an international court. The SCSL Appeals Chamber emphasized this point, stressing 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.” It also reasoned, as cited above, that the par in parem principle has “no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community” (emphasis added). Thus, the fact that the SCSL was not a State organ and not exercising jurisdiction on behalf of Sierra Leone was relevant in determining that it was an international court. Judges Eboe-Osuji, Morrison, Hofmański, and Bossa in their Joint Concurring Opinion to the ICC Appeals Chamber’s decision also explicitly stated that an international criminal court is “a court that exercises no national jurisdiction.”
This is Trahan’s argument, and it is also the argument Alexandre Skander Galand made when I first tweeted about the possibility of the General Assembly endorsing a hybrid tribunal: “[i]t is implicit in the Judgment in the Jordan Referral re: the Al-Bashir Appeal (especially the Joint Concurring Opinion) [that] ‘an international court exercises the jurisdiction of no one sovereign’. A hybrid tribunal operating within Ukraine’s judicial system would not have separate legal personality (ex. EAC or ECCC).”
Trahan and Galand, however, overlook a critical paragraph in the Joint Concurring Opinion filed by Judges Eboe-Osuji, Morrison, Hofmański and Bossa — four out of the five judges on the appeal panel. Here is Paragraph 56 (emphasis mine):
But what is an ‘international court’? An ‘international court’ or an ‘international tribunal’ or an ‘international commission’ (in the context of administration of justice)—nothing turns on the choice of nomenclature—is an adjudicatory body that exercises jurisdiction at the behest of two or more states. Its jurisdiction may be conferred in one of a variety of ways: such as by treaty; by instrument of promulgation, referral or adhesion made by an international body or functionary empowered to do so; or, indeed, by adhesion or referral through an arbitral clause in a treaty. A court that operates physically or in principle within a domestic realm exercises international jurisdiction where such jurisdiction results in any manner described above.
The final sentence makes clear that a hybrid tribunal could be international even if it was part of Ukraine’s judicial system. Two things would be required for internationalization: (1) a General Assembly resolution asking the UN to create a hybrid tribunal with Ukraine; and (2) an agreement between the UN and Ukraine to create that tribunal. The resulting hybrid tribunal would be “an adjudicatory body that exercises jurisdiction at the behest of two or more states” with its jurisdiction being conferred “by treaty” or “by instrument of promulgation, referral or adhesion made by an international body or functionary empowered to do so.” It would thus be an “international court” for purposes of personal immunity despite “operat[ing] physically or in principle within a domestic realm.”
As I have said many times, I am skeptical that a significant majority of the General Assembly will be willing to endorse an STCoA that does not have to recognise personal immunity. States may be similarly skeptical of a hybrid tribunal with that power. But if the UN agreement/endorsement argument works for an STCoA, it works for a hybrid tribunal as well. Either both an STCoA and hybrid tribunal created that way can set aside personal immunity or neither of them can.
Yet another reason to pursue a hybrid tribunal — not an STCoA.