Report: Ukraine Willing to “Compromise” on a Non-Ukrainian Internationalized Tribunal

Evropeyska Pravda is reporting that, although clearly not its first choice, Ukraine would be willing to accept an internationalized tribunal for the crime of aggression as long as it is based in another state’s judicial system. Here are the relevant paragraphs, quoting the Deputy Head of the Office of the President:

Ukraine decided on these concessions, Andriy Smirnov admitted for the first time.

According to him, Kyiv no longer rejects the possibility of creating a so-called “internationalized” or hybrid tribunal, which the USA, in particular, insists on. The only demand of Ukraine is that in the event of the creation of a hybrid tribunal, its basis should not be the Ukrainian judicial system, as the partners proposed from the beginning.

Kyiv found convincing arguments in this regard. In particular, the fact that the Ukrainian Constitution does not provide for the creation of such a judicial body, does not allow foreign judges (who were supposed to join the Ukrainians) to issue decisions in the name of Ukraine, and in general expressly prohibits the creation of special courts (for the investigation of a single crime, such as the aggression of the Russian Federation) . And Ukraine not only does not want to change the Constitution for this, but also cannot: it is forbidden to do this during a state of war and emergency.

And society demands justice now, without waiting for the final end of the war.

Therefore, according to Smirnov, at the negotiations with the partners, such an option of a hybrid tribunal is “floating in the air”, which both Ukraine and the partners consider possible. So this is an achievable compromise.

“This (hybrid tribunal based on Ukrainian legislation — EP) is an unacceptable model for Ukraine. But the creation of an internationalized tribunal does not necessarily mean the creation of a tribunal in the Ukrainian legal system… Therefore, a compromise can be the creation of an internationalized tribunal as part of the judicial system of another country, whose judicial system inspires confidence,” the official said, adding that he was saying this “as an announcement.”

Smirnov reacted angrily to the Evropeyska Pravda report, writing on Facebook that Ukraine still believes an international tribunal is a better choice, that it will not accept an internationalized tribunal based in Ukraine’s own judicial system, and that states are simply considering “the option of internationalized tribunal when it is established in another country whose legal system deserves trust with a further vote in the UNGA in favor of an established internationalized tribunal.” That is, of course, something of a non-denial denial, because Evropeyska Pravda acknowledged Ukraine’s preference for an international tribunal and its objection to a Ukraine-based internationalized one. And Smirnov neither denied he made the quoted statements nor claimed he was misquoted. It seems likely, then, that Evropeyska Pravda‘s reporting regarding Ukraine’s willingness to compromise is accurate, even if Ukraine desperately hopes a compromise won’t be necessary.

Interestingly, the Evropeyska Pravda report goes well beyond Ukraine being (reluctantly) willing to compromise, suggesting that, in fact, specific plans have been mooted to base an internationalized tribunal in the Netherlands:

The Special Tribunal for the Crime of Aggression is being established in The Hague and will operate under Dutch law. The Dutch government has already given its prior consent; The Hague is also convenient due to the fact that other international courts operate there, as well as the register of crimes of the Russian Federation, where evidence of the scale of aggression will be collected. Finally, there was already the experience of conducting a trial of an international crime by the forces of the national justice system — it is about the trial of those involved in the downing of MH17. For that process, the Dutch parliament even had to make changes to the legislation (for example, to allow the process in English).

And there is an acceptable definition of the crime of aggression in Dutch law, transferred from the Kampala document mentioned at the beginning, lawyers emphasize (the Dutch, unlike the USA and some EU states, ratified this treaty on punishment for the crime of aggression).

Obviously, Ukrainian and other judges will also join the work, and in general, the composition of this internationalized court will have to be formed — and here there is an agreement with the Council of Europe that it will help with organizational issues, sources say.

On Monday, this was emphatically confirmed by the legal advisor of the Regional Council (head of the relevant department) Yorg Polyakevich, who specially came to the conference in Kyiv. “The Council of Europe can help in launching the tribunal – for example, in the selection of judges,” he explained.

I am reluctant to assume this is accurate based on one source. I imagine the backroom conversation was more “if we go this route, the Dutch would be willing to host an internationalized tribunal.” My own preference would be for a state with more “skin in the game” to serve as host — one of the Baltic states, Finland, Poland, etc. There are already enough international tribunals in The Hague, and the closer the tribunal is located to the affected community, the better. In general, though, the idea of an internationalized tribunal based in another state makes sense. Creating such a tribunal would avoid the (political) problem of Ukraine needing to temporarily suspend martial law in order to amend its Constitution, and there is — as the report mentions — precedent in the MH17 trial for a state transferring its jurisdiction to another state instead of to an international tribunal.

The Evropeyska Pravda also discusses debates over how a non-Ukrainian internationalized tribunal would be created:

Whether the court will be approved by the decision of the Council, exposed to the involvement of other parties, as we have seen recently  in another “anti-Russian” initiative; whether it will be an intergovernmental agreement between Ukraine and the Netherlands, or whether it will be a wider circle…

But for the Ukrainian side, it is important that after the “Hague Tribunal” is established,  it receives the “blessing” of the UN General Assembly , approval of its action by a separate decision. And if, say, 100 states support the work of such a court and its tasks, then this body will de facto become international.

Much of the discussion to date, whether about an international or internationalized tribunal, has been based on the idea that a tribunal would be created by UN/Ukraine agreement following UNGA endorsement, along the lines of the ECCC and SCSL. The statement above suggests that an internationalized tribunal would be created by an agreement between Ukraine and the state to which Ukraine was transferring its jurisdiction. The role of the international community would then be to support the tribunal, whether via the Council of Europe or UNGA resolution. Both routes work, and it is not necessarily an either/or. Owiso Owiso has already explained here how the CoE could support an internationalized tribunal, and I think far more states — both West and South — would be willing to support an internationalized tribunal than an international one. (Some for principled reasons, such as minimising selectivity and maximising replicability; others for more venal ones, such as minimising the precedent for prosecuting sitting heads of state.) So such ex post UNGA “blessing” seems eminently possible, particularly if the powerful G7 states whip support for an already-existing internationalized tribunal.

Finally, it is interesting to note what Evropeyska Pravda says about reactions to the possibility of a tribunal that would overtly lack the power to prosecute Putin (and the two other Russian officials with personal immunity):

At Monday’s conference, all non-governmental Ukrainian speakers without exception were categorical: if Putin will not be the object of this criminal process, then what is the point of creating a tribunal? “Bringing Putin to justice will be an indicator of whether the desire to create a tribunal is sincere,” explained, in particular, Nobel Peace Prize laureate Oleksandra Matviychuk.

However, none of the government representatives was so categorical, and everything was reduced to the fact that this option is more desirable than existential.

And Smirnov also reminded that it is necessary to be realistic. “We must honestly admit: physically, we will not see Putin on the dock.”

I understand expressivist opposition to creating a tribunal that has no power to prosecute Putin. But I don’t understand reactions like Matviychuk’s. As Smirnov is quoted as saying, Putin is not going to be in the dock of any tribunal, internationalized or international, as long as he is in power. And if he is not in power, the internationalized/international distinction will be irrelevant because Putin will no longer have personal immunity. So unless your goal is to create an international tribunal that will prosecute Putin in absentia — a debate for another day — it seems to me that some tribunal is better than no tribunal. The “government representatives,” in other words, are spot-on: the ability of a tribunal to set aside personal immunity “is more desirable than existential.”

It remains to be seen whether Evropeyska Pravda‘s report is accurate. My best guess is that it generally is, even if it perhaps underplays how desperate Ukraine is to avoid “compromising” with a non-Ukrainian internationalized tribunal. Regardless, it has become increasingly clear that an internationalized tribunal of some sort is the only way forward. An international tribunal was always unlikely, given its limited support — essentially Ukraine, a small handful of states that are mostly in Eastern Europe, and academics — and whatever possibility did exist was effectively snuffed out by the G7’s collective opposition. The sooner supporters of an international tribunal reconcile themselves to that fact, the sooner efforts to create an internationalized tribunal can get underway.

UPDATE 1: Anton Korynevych has his own post on Facebook. He quite strenuously denies that the Netherlands or any state has offered to host an internationalized tribunal. He also reiterates Ukraine’s support for an international tribunal and says that “at the moment no other model for the creation of the Special Tribunal has [been] agreed.” Critically, though, Korynevych then adds that “[c]olleagues working on this issue on a daily basis do not have the appropriate powers to agree or disagree with the format of the Special Tribunal.” I read this as diplomat-speak, indicating that although Ukrainian officials involved in day-to-day negotiations (such as Smirnov) might have indicated Ukraine’s willingness to reluctantly accept an internationalized tribunal, that willingness cannot be considered Ukraine’s official position because Zelensky himself hasn’t approved the compromise. But as with all behind-the-scenes negotiations, it’s difficult to know where the truth lies.

UPDATE 2: A couple of astute readers have called my attention to a July 18 press release from the Office of the President indicating that Ukraine does indeed consider an internationalized tribunal based in another state to be a possible compromise:

According to [Smyrnov], the Core Group on the establishment of a special tribunal for the crime of Russian aggression against Ukraine will meet again in September in The Hague. The Deputy Head of the Presidential Office noted that among the new options to be considered during the Core Group meeting is the possibility of creating an “internationalized court.”

“One of the compromises we are considering is the possibility of creating an “internationalized tribunal”, but not in Ukraine and not as part of the Ukrainian judicial system. This is necessary in order to find a way to establish the tribunal supported by all partners,” emphasized Andriy Smyrnov.

The Deputy Head of the President’s Office noted that the establishment of an internationalized tribunal could later be supported by the UN General Assembly.

“In this case, the UN General Assembly will support the establishment of a tribunal in an internationally reputable jurisdiction,” added Smyrnov.

We will obviously know more after the September meeting in The Hague.