A Special Justice Mechanism for the Crime of Aggression Against Ukraine – For Who, By Who, Against Who?

[Alexandre Skander Galand is a Post-Doctoral Researcher at the Centre for Fundamental Rights at the Hertie School, Berlin.]

On 3 April 2022, President Zelenski announced that he ‘approved a decision to create a special justice mechanism in Ukraine for the investigation and judicial examination of every crime of the occupiers. The essence of it is the joint work of national and international experts: investigators, prosecutors and judges.’ It is still unclear whether this ‘special justice mechanism’ will be in the form of, as proposed by Heller and Owiso, a hybrid tribunal, mixing national and international staff, but remaining part of Ukraine’s judicial system.  Or, a tribunal to be created on the basis of a treaty with other States and endowing this body with independent legal personality, as proposed by Gordon Brown, UK’s former Prime Minister.  What seems to be clear however is that the ‘special justice mechanism’ would have jurisdiction over the crime of aggression (or as the Presidential announcement framed it, ‘those who unleashed […] terrible war).’

This post argues that to provide an accurate picture of the crime of aggression perpetrated against Ukraine the planned ‘special justice mechanism’ should be truly international and provide for victims’ right to representation and reparations.

A Truly International Tribunal

As the crime of aggression is by definition a leadership crime, immunities are enormous potential bar to any attempt to prosecute all those who bear responsibility for this crime, except if such trials were to take place in the aggressor’s State or with its consent.  The President, Prime Minister, and Minister of Foreign Affairs (and possibly the Minister of Defense) are entitled under international law to (absolute) personal immunity from foreign jurisdiction. There are moreover doubts whether functional immunity, which covers the acts of any State officials, is inapplicable to the crime of aggression (See Draft Article 7 on Immunities of State Officials from Foreign Jurisdiction and its Annex, provisionally adopted by the International Law Commission). Accordingly, the creation of a hybrid tribunal – in the form of a Special Chamber within Ukraine’s judicial system – would be unable to exercise jurisdiction over these individuals, unless Russia consents to such proceedings.

Akande has suggested that immunities would arguably be unapplicable between parties to an armed conflict (at 41:20). Dannembaum has also hypothesized that such claim makes sense, given both parties may indeed detained each other’s head of States, or if you prefer, Commander-in Chief, as Prisoners of War. Yet, this proposition, as Dannenbaum acknowledges, is obviously limited by the time frame in which it applies: leaders who are still in office after the conflict would regain their absolute immunity from each other’s jurisdiction. 

McDougall and  Dannenbaum argue that a venue where immunities of Russian State officials would not be an obstacle is before ‘certain international criminal courts’, as vaguely alluded to by the International Court of Justice in the Arrest Warrant Case. (para. 61) Drawing from the Arrest Warrant Case, the ICC Appeals Chamber found in the Jordan Appeals Judgment that there is no rule of customary international law which provides personal immunities vis-à-vis international courts (para. 113). No doubt the Jordan Appeals Judgment is controversial (see Jacobs, Akande, Batros and myself). I, for instance, had hitherto argued that there were insufficient state practice and opinio juris to support the proposition that there was an exception to personal immunity for international criminal courts and tribunals. However, I must admit that the Appeals Chamber ingeniously reframed the question by shifting the burden of proof. Indeed, there is also little State practice and opinio juris for the proposition that immunities apply before international criminal courts and tribunals.

That being said, I have reserves with the Appeals Chamber’s explanation of why immunities do not apply before international courts, and how the majority defined ‘international courts’. The Appeals Chamber took the position that immunities do not apply before international courts because, in contrast to States, they exercise their jurisdiction on behalf of the international community (para. 115).  As Kress notes, this reasoning undermines the important work done by States exercising universal jurisdiction on the premise that they are acting on behalf of the international community (p. 15). As I elaborate in a forthcoming article, what distinguishes international criminal courts from domestic criminal courts is that the former do not only act on behalf of the international community (like States), but also at its behest.

In what hitherto appeared as the most controversial issue emerging from the Jordan Appeals Chamber, it is affirmed by the majority of the appeals judges that an international court ‘is an adjudicatory body that exercises jurisdiction at the behest of two or more states.’ (para. 56) This passage needs to be contrasted with the holding of the Special Court of Sierra Leone (SCSL) in Decision on Taylor Immunity, the only case which prior to the Jordan Appeals Judgment unambiguously  affirmed that immunities do not apply before international courts – and which contrary to the Jordan Appeals Judgment has not been widely denounced by States.  Before discarding the relevance of President Charles Taylor’s immunity from its jurisdiction, the SCSL Appeals Chamber famously took great pain in emphasizing that the Special Court had been called for by the Security Council, which entailed that its founding agreement ‘was an expression of the will of the international community’. (para. 38) Being established ‘in such circumstances’, the Chamber said, means that the SCSL ‘is truly international’. (para. 38) According to this precedent, a treaty-based tribunal would qualify as truly (or if you prefer, objectively) international and, as such, not be concerned with immunities, only when it is endorsed by an institution that is able to speak on behalf of the international community. While the Council of Europe does not qualify as such institution, the UN General Assembly (GA) with its universal membership does. The UN Security Council (SC) of course, also has such voice, but the reason why the GA endorsement is sought here, is exactly because the former is unable to assume its primary responsibilities.  

There are further important points to seeking a GA endorsement and limiting our understanding of the international community to a number of States, or institutions, that represent at least a two third of all States: it not only ensures that the purported ad hoc tribunal is not entirely a Western venture but also that any future similar projects would not be dependent on the prerogatives and selectivity the SC is infamous for.   Larry Johnson has already proposed that the GA could help establish under a ‘Uniting for Peace’ resolution an ad hoc tribunal for the crime of aggression (See also and Makarov and Hathaway). My take is that the tribunal does not need to be with the UN as a founding party, it could be established by a group of States, including Ukraine, and then endorsed by the GA through a ‘Uniting for Peace’ Resolution. Proceeding this way might accelerate the negotiation  necessary to the establishment of the tribunal, which some view as a weakness of Johnson’s proposal. The Statute of the tribunal would nonetheless have to provide that the invitation to join remains open to all interested States, that the tribunal has independent legal personality and will apply the highest standards of due process.

Providing for Victims’ Representations and Reparations

Providing the special justice mechanism with a framework for victims’ participation and reparations would create a site where the important developments that have occurred regarding victim’s right to justice could be applied to the crime of aggression.  This would offer an exceptional opportunity for finally recognizing that the victims of the crime of aggression are not only the States attacked but also the individuals who bear the consequences of this core international crime.

Aggression has long been considered as a crime against another State. GA Resolution 3314 (XXIX) and Article 8bis(2) Rome Statute suggests so, indeed, when they declare that ‘“act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.’ Moreover, it is somehow telling that during the Kampala Conference, States were referring to the territorial State as the victim State rather than the victims’ State.

Considering the attacked State as a victim does not however need to lead to the conclusion that those who are harmed as a result of the war are merely witness. As Pobje observed, ‘the universe of victims of the crime of aggression is potentially massive.’ (p. 843) The process of being recognized as a victim of a crime has essential vindicative functions: it acknowledges not only that the individual has suffered a harm but also that that harm resulted from a wrong. This is particularly important in the context of the crime of aggression for two main reasons. First, it involves leaders who pathetically deny the existence of such wrong, to the extent of justifying their aggressive war by claiming that the victims and their collectivities brought this upon them. Second, aggression is an act which by itself causes harms which in the contemporary legal discourse are generally not recognized as wrongs, but as measures contemplated by the principle of necessity.

The Nuremberg Judgment famously held that the crime against peace ‘differs only from other war crimes in that it contains within itself the accumulated evil of the whole.’  This passage  has taken as entailing that victims of other international crimes committed in the course of aggression should qualify as victims of the crime of aggression. But, what about the victims, whose harm is not due to war crimes, crimes against humanity or genocide, but to conduct that are solely permitted during armed conflicts?  After all, by initiating a war of aggression, the aggressor State leaders willingly trigger international humanitarian law, the very legal regime which will legalize a wide amount of death and destruction.

An important view has emerged — coined as the ‘humanization of jus ad bellum by Lieblich — that the killings entailed in an act of aggression are ‘arbitrary’ deprivations of the right to life. (see Haque) This is most clearly reflected in the Human Right Committee’s General Comment No. 36: ‘States parties engaged in acts of aggression, as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’ (para. 70) From that perspective, the death of a civilian brought about by aggression, could be in accordance with IHL (i.e. collateral damage) but still constitute violation of IHRL (See Mégret and Darcy). This proposition applies mutatis mutandis to all other conduct, which would be impermissible during peace time, but are permitted during armed conflict, including combatants of the defending state (see Dannenbaum).

Mégret and Redaelli further claim that States also have a positive obligation towards their own population not to engage in a war of aggression. They draw this interpretation from General Comment No. 36, where it is affirmed that ‘States parties that fail to take all reasonable measures to settle their international disputes by peaceful means might fall short of complying with their positive obligation to ensure the right to life.’ (para. 70) In their view, this entails that aggressors States are also responsible for the harm inflicted upon their soldiers and populace.

These propositions, which consider that even combatants are victims of the crime of aggression, may be considered as radical twists of the jus ad bellum and jus in bello relationship. But blurring the line between these domains is necessary when one begin thinking of which individuals should be recognized as victims of the crime of aggression and for which harms should the perpetrator be held accountable. After all, what else could the criminalization of aggression be for, if not about, as Ohlin argues, holding criminally accountable a State leader for having forcefully created – ‘bootstrapped itself into’ – a situation where killings are lawful.