No, a Hybrid Tribunal Would Not Need to Apply Ukraine’s Aggression Definition

Jennifer Trahan has a new post at Just Security entitled “Why a ‘Hybrid’ Ukrainian Tribunal on the Crime of Aggression Is Not the Answer.” There are many problems with Trahan’s post, but in this response I want to focus specifically on the most glaring one: namely, her claim that a hybrid tribunal would need to apply Ukraine’s domestic crime of aggression instead of the crime of aggression in the Rome Statute.

Here is what Trahan says (emphasis mine):

By pressing for a solution within the Ukrainian legal system and not a special international tribunal, one would… 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).

[snip]

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.

Both of these claims are false. To begin with, consider precedent. Kirsten Ainley and Mark Kersten’s Hybrid Justice project identifies nine courts than can be considered hybrid tribunals: Extraordinary African Chambers; Extraordinary Chambers of the Court of Cambodia; Iraqi High Tribunal; Kosovo Specialist Chambers and Specialist Prosecutor’s Office; Special Court for Sierra Leone; Special Criminal Court in Central African Republic; Special Panels of the Dili District Court; Special Tribunal for Lebanon; War Crimes Chamber in Bosnia and Herzegovina. Most of those hybrid tribunals had or have jurisdiction over certain kinds of domestic crimes. But none of them — literally none — applied or apply a domestic definition of an international crime that deviates from the international definition. Not even the Special Tribunal for Lebanon, which exclusively applied Lebanese criminal law. (And even then the STL judges notoriously looked to international criminal law to interpret the Lebanese crime of terrorism.) Yet Trahan would have us believe that now, despite the international community’s long experience with hybrids, a hybrid tribunal in Ukraine would apply Ukraine’s definition of aggression instead of the international definition of aggression — ie, the one in the Rome Statute.

Because Trahan’s claim that a hybrid tribunal would rely on Ukraine’s domestic definition of aggression is false, her claim that a hybrid tribunal could only impose “insufficient sentences” is equally false. A hybrid tribunal would not “need to apply” the sentences in Art. 437, because it would not apply Art. 437 at all. The judges would apply the international definition of aggression and could impose whatever maximum sentence the drafters chose to include in the tribunal’s enabling statute. To be sure, there is no guarantee those sentences would be as long as sentences imposed by the ICC or by a Special Tribunal for the Crime of Aggression (STCoA). But it is unlikely the maximum sentence would be different: only one of the nine hybrid tribunals created to date has a maximum that is lower than the ICC’s basic 30 year sentence — and that hybrid, the Special Panels of the Dili District Court, had a maximum sentence of 25 years. It is also impossible to imagine Ukraine ever supporting a hybrid tribunal that couldn’t sentence a Putin or Lavrov to more than 15 years imprisonment.

To be honest, I have no idea why Trahan claims a hybrid tribunal would apply — much less “need to apply” — the Ukrainian definition of aggression or its sentencing regime. No scholar has advocated that, nor have any of the states that favour a hybrid tribunal. The United Kingdom’s statement, for example, does not say that a hybrid tribunal would apply Ukraine’s definition of aggression, and the bullet point endorsing “a specialised court integrated into Ukraine’s national justice system with international elements” comes immediately after the UK quotes the ICC ‘s definition of aggression, points out that the ICC cannot prosecute Russia’s aggression against Ukraine, and notes that Ukraine itself wants to ensure that Russia’s leadership is prosecuted for aggression.

Similarly, there is nothing in the German Foreign Minister’s statement that even suggests Germany wants a hybrid tribunal to apply Ukraine’s definition of aggression instead of the Rome Statute definition. On the contrary, Baerbock not only explicitly criticised domestic criminal laws that do not mirror the Rome Statute — in the context of sexual violence — she specifically said that the point of creating a hybrid tribunal would be to “strengthen the International Criminal Court and not weaken it” and that a hybrid tribunal is necessary for “the future of our international criminal law.” Those are not the statements of a Foreign Minister who wants the international community to support a hybrid tribunal with a flawed domestic definition of aggression and overly lenient sentences.

There is legitimate debate to be had between a Special Tribunal for the Crime of Aggression and a hybrid tribunal. Rational debate is impossible, however, when scholars who support an STCoA caricature the hybrid-tribunal option. Unfortunately, that is precisely what Trahan has done in her new post.