The Best Option: An Extraordinary Ukrainian Chamber for Aggression

In an excellent recent blog post at Just Security, Tom Dannenbaum identified four options for prosecuting Russia’s unprovoked aggression against Ukraine:

[T]he International Criminal Court, an ad hoc international tribunal (whether along the lines proposed at Chatham House or pursuant to a General Assembly resolution), a domestic court exercising territorial jurisdiction (in Russia, Belarus, or Ukraine), or a domestic court exercising universal jurisdiction.

All four options have their costs and benefits. The ICC would offer economy of scale, given that the Prosecutor has already initiated, at the request of 41 states parties, an investigation into war crimes and crimes against humanity committed in Ukraine. The ICC would also lessen (though not eliminate) selectivity problems, as it would be able to investigate other acts of aggression, as well. The problem is that an aggression investigation in Ukraine would require amending the Rome Statute to either give the Court jurisdiction over acts committed by non-states parties or permit the UN General Assembly to refer aggression situations. (As Russia would obviously veto a Security Council referral.) Neither amendment is likely — and  a General Assembly referral of a non-state party to the Court would probably be ultra vires, given the Assembly’s lack of coercive power.

An ad hoc international tribunal created pursuant to a General Assembly resolution or by a group of states concluding a treaty would have the benefit of being fit for purpose — created solely for the investigation and prosecution of Russia’s aggression against Ukraine. It would also send a powerful message concerning the international community’s revulsion toward Russia’s actions. An ad hoc tribunal would, however, be extremely vulnerable to allegations of selectivity given the international community’s failure to seriously contemplate, much less create, a similar tribunal for the invasion of Iraq in 2003. That would be particularly true of a treaty-based tribunal led by the US and UK, given that those states oversaw the coalition that illegally invaded Iraq. An ad hoc tribunal created pursuant to a General Assembly would likely be seen as more legitimate, at least if it was supported by a large cross-section of UN member-states. But it is an open question how many states would actually support such a tribunal. Some may oppose one because of selectivity concerns. Other states, as Carrie McDougall noted in her recent post at Opinio Juris, may simply be wary of endorsing an international tribunal that can prosecute leaders for aggression.

A domestic court exercising territorial (or nationality) jurisdiction would be undeniably legitimate from a jurisdictional perspective, and there has long been a preference in ICL for for holding trials as close as possible to the affected community, both for expressive reasons and because that is where suspects and evidence will generally be located. But domestic aggression prosecutions are very unlikely for the foreseeable future in Ukraine, Belarus, and Russia: Ukraine because the Russian invasion is ongoing and it is uncertain that the current government will survive; Russia and Belarus because the perpetrators are still in power and are likely to remain so, at least in the short term.

A domestic court exercising universal jurisdiction would spare the time and expense of creating a Special Tribunal essentially from scratch. Moreover, at least some states that exercise universal jurisdiction over aggression — such as Germany, which has just announced an investigation into Russian aggression against Ukraine — have resources far beyond what a Special Tribunal would ever possess. But it is debatable whether states are entitled to exercise universal jurisdiction over aggression, and the better view suggests that they are not. Only a few dozen states criminalise aggression, and far fewer make universal jurisdiction available for it — mostly former Soviet republics.

There is, however, a fifth possible option worth exploring — one that would maximise the benefits of the other four while largely (though not completely) avoiding their costs. That option would be a hybrid tribunal established as part of the Ukrainian judicial system with the support of the Council of Europe. Both Ukraine and Russia are currently members of the CoE. Although the Council does not have the power to directly establish a hybrid tribunal, Ukraine could ask the Committee of Ministers to recommend, pursuant to Art. 15(a) of the Statute, that member governments adopt “a common policy” with regard to supporting one. Adopting a common policy would require a unanimous vote of the representatives to the Committee who cast a vote — Art. 20(a)(vi) — but Russia has been suspended from the CoE (and has just announced it has started the procedure to withdraw entirely) and none of the other 46 member-states have publicly defended Russia’s invasion of Ukraine. It is thus reasonable to assume that unanimity would be possible.

Such a regionally-supported hybrid tribunal, I suggest, should be based on the Extraordinary African Chambers that successfully prosecuted the former President of Chad, Hissène Habré:

On 22 August 2012, the African Union (AU) and Senegal signed an agreement establishing a special court with international elements within the Senegalese judicial system. On 8 February 2013, these so-called Extraordinary African Chambers (EAC) were inaugurated. According to the Statute of this new mechanism, which has already been qualified as a hybrid tribunal by TRIAL, the EAC have the power to prosecute and try the person or persons most responsible for international crimes (genocide, crimes against humanity, war crimes and torture) committed in Chad between 7 June 1982 and 1 December 1990. The EAC consist of Senegalese (investigative) judges – at the Chambre africaine extraordinaire d’instruction du Tribunal Régional Hors Classe de Dakar (Investigative Chamber within the Tribunal Régional Hors Classe de Dakar) and at the Chambre africaine extraordinaire d’accusation de la Cour d’Appel de Dakar (Indicting Chamber within the Dakar Court of Appeals) – and a mix of Senegalese judges and judges from other AU countries – at the Chambre africaine extraordinaire d’assises à la Cour d’Appel de Dakar (Trial Chamber within the Dakar Court of Appeals) and the Chambre africaine extraordinaire d’assises d’Appel près la Cour d’Appel de Dakar (Appeals Chamber attached to the Dakar Court of Appeals).

This structure would work well for what we might call an Extraordinary Ukrainian Chamber for Aggression (EUCA). A treaty creating the EUCA and establishing its structure would be adopted pursuant to normal CoE processes: the text would be negotiated within the institutional framework of the CoE; the Committee of Ministers would adopt the final text of the treaty; and then the treaty would be presented to member states for their signature. The treaty would provide, inter alia, that the EUCA would be part of Ukraine’s judicial system and would have jurisdiction over aggression; that EUCA judges and prosecutors would be drawn from Ukraine and/or from various CoE member states; and that Ukraine and CoE member states would jointly finance the EUCA’s work and carry out investigations on a collaborative basis.

A EUCA would have numerous practical advantages. It could likely be established very quickly, given that it would be part of Ukraine’s (admittedly beleaguered) judicial system. It could function during the conflict as long as it was physically located outside of Ukraine. And the support and involvement of CoE members would compensate for the legal, technical, and financial limitations Ukraine would face if it acted alone. After all, a number of CoE members, such as Germany and France, have significant experience investigating, prosecuting, and judging international crimes committed in conflict situations. Moreover, given that all of the members of the EU are members of the CoE, a EUCA could take advantage of EuroJust’s Joint Investigation Teams, which — as McDougall noted in her post — played a “hugely important role” in the MH17 investigation.

A EUCA would also have legal advantages over other accountability mechanisms. The tribunal’s jurisdiction would be uncontroversial — unlike a domestic prosecution based on universal jurisdiction — because it would be based on Ukraine’s territorial jurisdiction. No Monetary Gold problem would arise because Ukraine would not be delegating its territorial jurisdiction to an international tribunal. Ukraine already criminalizes aggression, rendering any retroactivity argument moot, although Art. 437 of the Penal Code would likely need to be brought in line with the modern definition. (It doesn’t contain a leadership requirement, for example, which led to the conviction of two former Russian soldiers following Russian aggression against Ukraine in 2014.) A EUCA would also be no less international than an ad hoc tribunal, making it similarly situated with regard to the personal immunity of Russian leaders such as Putin and Lavrov. (Though I remain skeptical that either  mechanism would be sufficiently international in the sense of Arrest Warrant to ignore personal immunities.) And unlike an ad hoc international tribunal created by a number of Western states, a EUCA would almost exclusively involve states with civil law systems, minimizing the kind of disagreements between prosecutors and judges from different systems that have been commonplace at the previous ad hoc tribunals, as well as at the ICC.

Most importantly, though, a EUCA created with the CoE’s help would almost certainly be seen as more legitimate than an ad hoc international tribunal. As I noted in a recent post, an ad hoc tribunal would inevitably face allegations of selectivity, given that it would almost certainly be led by the same Western states that unlawfully and criminally invaded Iraq in 2003. A EUCA would not completely eliminate the “unclean hands” problem, given that the UK, a member of the CoE, was one of those states. But at least a EUCA would not involve the US, primus inter pares for the Iraq invasion (as well as the driving force behind excluding non-member states from the ICC’s crime of aggression). Moreover, unlike the UNGA, which has a global focus and could support a permanent international tribunal for aggression instead of one solely for Ukraine, the CoE is an explicitly regional organization that addresses regional issues. It could thus hardly be faulted for creating a tribunal focused exclusively on Russian aggression, especially if the CoE members most active in supporting Ukraine were former Soviet republics with strong judicial systems, such as Estonia, Latvia, and Lithuania. Indeed, the unacceptability of aggression is a particularly strong regional norm in Europe, given that more than 2/3 of the world’s states that criminalize aggression domestically are members of the CoE.

I share the desire of the 40 political and legal luminaries who recently called for the creation of a Special Tribunal to pursue accountability for Russia’s aggression against Ukraine. The time is now to send a message to Putin and other powerful Russian political and military leaders that, no matter how long it takes, they will eventually be held accountable for their crimes of aggression against Ukraine. I believe, though, that the next Yalta Declaration should be issued in Strasbourg, not New York. A hybrid tribunal that is part of Ukraine’s judicial system and supported by the Council of Europe stands a better chance of success than either an ad hoc international tribunal or a domestic prosecution conducted by a state acting alone. We need a regional solution for what is, first and foremost, a regional problem.