An Aggression Chamber for Ukraine Supported by the Council of Europe

[Owiso Owiso is a Lecturer in Public International Law at the University of Groningen.]

Introduction

Since Russia’s invasion of Ukraine commenced in February 2022, there have been increased calls for criminal accountability for crimes allegedly (being) committed in the context of the invasion. Following Ukraine’s declarations of February 2014 and February 2015 accepting the jurisdiction of the International Criminal Court (ICC) and the referral of the situation in Ukraine by 41 state parties to the Rome Statute of the ICC, the Prosecutor of the ICC has opened an investigation into war crimes and crimes against humanity. Notably, however, the ICC does not have jurisdiction over the crime of aggression in the specific situation of Ukraine, thanks to complex jurisdictional requirements whereby both the aggressor and the victim state must both be state parties to the Rome Statute, must both ratify the aggression amendments, and must not opt-out of the Court’s jurisdiction over aggression. Neither Ukraine nor Russia is a state party to the Rome Statute. As a result, there have been discussions about how criminal accountability for the crime of aggression can be pursued, with a number of suggestions being made for the establishment of a special tribunal. (See Combined Statement, Sands, Vasiliev, Johnson, Trahan, Dannenbaum, Heller1, McDougall1, McDougall2, McDougall3, Heller2.) One of the actors identified as a potential partner to Ukraine in the establishment of a criminal accountability mechanism is the Council of Europe, a suggestion first made by Heller. This post argues in favour of such a mechanism by briefly highlighting what would be the legal basis and procedure for its establishment.

Ukraine’s Invitation to the CoE

The Council of Europe (CoE) does not have pre-existing and permanent legal authority to intervene in Ukraine on its own initiative. In fact, the only regional inter-governmental organisation that so far has such authority in respect of its member states is the African Union, which is empowered under Article 4(h) of the Constitutive Act to intervene in a member state in the event of genocide, crimes against humanity and war crimes. As such, and in order to avoid intractable contestation over the political and legal legitimacy of the tribunal’s origins, the proposed tribunal can only be established upon the invitation or request of Ukraine, a member state of the CoE.

As a sovereign state, Ukraine is competent to invite intervention or assistance from other subjects of international law such as inter-governmental organisations. This is a logical consequence of and exercise of sovereignty, which is only procedurally regulated by domestic law. Ukraine can exercise this sovereign prerogative by formally inviting the CoE to assist in the establishment and operation of a tribunal. Precedent exists for states exercising their sovereign prerogative to invite international organisations to assist in the establishment and operation of (international) criminal accountability mechanisms. In relation to a global inter-governmental organisation, these include Sierra Leone’s request to the UN which resulted in the establishment of the Special Court for Sierra Leone; Cambodia’s request to the UN which resulted in the establishment of the Extraordinary Chambers in the Courts of Cambodia; and Lebanon’s request to the UN which resulted in the establishment of the Special Tribunal for Lebanon. Specific to regional inter-governmental organisations, Kosovo’s invitation to the European Union which led to the establishment of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office and South Sudan’s invitation to the African Union to establish the proposed Hybrid Court for South Sudan are instructive.

For the avoidance of doubt, Ukraine would neither be delegating the exercise of its territorial jurisdiction to the CoE nor calling upon the CoE to intervene. Rather, Ukraine would be inviting the CoE to assist Ukraine in its efforts to effectively exercise its territorial jurisdiction in respect of the crime of aggression. The invitation would therefore not seek to bestow upon the CoE the power to intervene in Ukraine, but rather the authority to assist in the establishment and operation of the tribunal. The proposed tribunal would be part of the ordinary judicial system of Ukraine – preferably a chamber of one of Ukraine’s Higher Specialised Courts – and would not be a special or extraordinary court the establishment of which is in any case prohibited under Article 125 of Ukraine’s Constitution. This is important especially considering Article 92(14) of Ukraine’s Constitution, which demands that ‘the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise’ be determined ‘exclusively by the laws of Ukraine’. As will become apparent from the discussion below, the tribunal would remain part of Ukraine’s legal system and be governed by Ukrainian law and as such would not fall afoul of the Constitution.

Acceptance by the CoE of Ukraine’s Invitation

Having established Ukraine’s competence to invite or request the CoE’s assistance in the establishment and operation of the tribunal, the question then arises as to whether the CoE is competent to accept Ukraine’s invitation. This question is answered by considering the position of (general) international law and of CoE law.

As a matter of general international law, it is trite that inter-governmental organisations have international legal personality, and from this personality flows the legal capacity to engage with other actors on the international plane, including through the conclusion of treaties. With the notable exception of the European Union (see Article 47 of Treaty on European Union), the constituent instruments of most inter-governmental organisations are silent on the question of legal personality. Despite this silence, however, contemporary international law adopts a presumptive approach to legal personality of international organisations which entails inductively analysing the organisation’s object and purpose, objectively analysing the nature of the organisation including its structural aspects, and considering the (legal) acts that the organisation actually performs (Okeke 183–185, Brölmann 68–94, Klabbers 49–50). As such, where the constituent instrument of an international organisation is silent or ambiguous on the organisation’s legal personality and capacity, such personality and capacity are inferred from the organisations’ nature as an international organisation and from its actual performance of acts. This position is supported by the jurisprudence of international courts including the International Court of Justice (Reparations for Injuries Suffered in the Service of the United Nations, 177–184; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 56–57), the African Court on Human and Peoples’ Rights (Femi Falana v. The African Union, § 68) and the East African Court of Justice (Margaret Zziwa v The Secretary General of the East African Community § 36).

Therefore, as an international organisation (specifically an inter-governmental organisation) established a such by treaty, the CoE has, as a matter of general international law, the legal capacity to engage with (member) states within its areas of competence, including through the conclusion of treaties. This, however, is a statement of general legal capacity, and does not reveal much about the CoE’s capacity to engage in the specific area of criminal accountability. To conclusively answer this question, the CoE’s specific competence as provided in its constituent instrument must be analysed.

Implied Competence of the CoE

The Statute of the Council of Europe (CoE Statute) does not expressly bestow upon the CoE the competence to engage in (international) criminal accountability. Absence of an express conferral of specific authority does not, however, necessarily preclude the CoE’s competence. This specific competence can still be implied from the express provisions of the CoE Statute. The doctrine of implied powers is a recognised doctrine in international law for determining the nature and full extent of an international organisation’s powers where these powers are not sufficiently or exhaustively expressed in relevant legal instruments (see for example Reparations for Injuries Suffered in the Service of the United Nations 177–184; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal 56–57). By this doctrine, clarity on the nature and scope of an international organisation’s powers is attained by considering those powers that are essential to and indispensable for the performance of the organisation’s expressed mandate. In other words, the organisation is considered to have those powers that are essential to the attainment of its expressed object and purpose. These powers must strictly be understood to derive from and be traceable to the express provisions of the constituent instrument.

Pursuant to Article 15(a) of the CoE Statute, the Committee of Ministers’ is empowered to ‘consider the action required to further the aim of the Council of Europe, including the conclusion of conventions or agreements’. Whatever action contemplated by this provision must, strictly speaking, be necessary to achieve an expressly stated aim of the CoE. In other words, the aim being furthered must either be expressly provided for in the Statute, or it must be capable of being implied from the express aims in the Statute. The establishment and operation of an aggression tribunal is, of course, not expressly provided for in the Statute. Nevertheless, this competence can logically be implied from the Statute’s express provisions. As expressed in Article 1 of the CoE Statute, the CoE’s aim is to safeguard, through unified and common action, the block’s common ideals and principles which include ‘the maintenance and further realisation of human rights and fundamental freedoms’. If Russia’s aggression against Ukraine is understood to be a threat to human rights and fundamental freedoms in Ukraine in particular and in the CoE region in general, then the CoE is competent to conclude a treaty with Ukraine whose purpose is to ensure common action to respond to this threat. Consequently, and acting upon Ukraine’s formal request/invitation, the Committee can conclude that accepting Ukraine’s invitation would be an appropriate action to further and give full effect to the CoE’s expressed aim of maintaining and realising human rights and fundamental freedoms and adopt a treaty to this effect.

Express Common Policy Approach

Admittedly, deriving the CoE’s competence to engage in accountability for the crime of aggression in Ukraine (even by invitation) in the manner suggested above is largely a question of how the express provisions of the CoE Statute are interpreted. As such, it can be anticipated that some may argue that the competence to assist in the establishment and operation of an aggression tribunal cannot logically be implied from the Statute’s express provisions. In this case, Article 15 nonetheless provides another avenue for such engagement by empowering the Committee to recommend to member governments to adopt ‘a common policy with regard to particular matters’. Specifically, the Committee can recommend to member states the adoption of a common policy for supporting member states who request assistance to prosecute crimes allegedly committed on their territories. With the exit of Russia from the CoE, it is reasonable to expect that the Committee can easily attain the unanimity required under Article 20 of the Statute to make the above recommendation, and that the governments of the 46 member states will adopt such policy expeditiously. If member states adopt such common policy, then the CoE would have express authority to accept Ukraine’s invitation and conclude a treaty with Ukraine on the establishment of the tribunal. Upon adoption of such policy by governments, the Committee can embark on the process of adopting a treaty with Ukraine and opening it up for signature by member states. Notably, this is a longer route than the implied powers approach discussed above, which dispenses with the need for the adoption of a common policy. However, with the exit of Russia from the CoE and going by the strong condemnation of Russia’s aggression by the CoE, it is reasonable to anticipate that this process would be expedited.

Conclusion

In conclusion, the CoE has – or can have – the legal competence to conclude a treaty with Ukraine for assistance in establishing and operating a tribunal on Russia’s aggression. For legal validity within the domestic legal system, and as provided in Article 9 of Ukraine’s Constitution, the treaty so concluded would be considered part of Ukraine’s national legislation once ‘agreed to be binding by the Verkhovna Rada of Ukraine’ (Ukraine’s parliament). The tribunal would not be a CoE creation, but rather a CoE-supported mechanism which nonetheless remains part of Ukraine’s judicial system.

Moments of crisis call for legal imagination and creativity. This post argues that to ensure accountability for the crime of aggression in the Ukraine situation, stakeholders must imagine the CoE beyond its traditional functions and exploit its untapped potential.