The Need for Pragmatism, or, Don’t Let the Immunity Tail Wag the Tribunal Dog

A remarkable amount of ink has been spilled concerning the ability of various types of aggression tribunals to set aside Vladimir Putin’s personal immunity. I have contributed to the blot, most recently arguing that there would be no legal difference in that regard between a Special Tribunal for the Crime of Aggression (STCoA) and an internationalized tribunal, as the hybrid option is now increasingly being called. Without overwhelming UNGA endorsement, both tribunals would have to recognize personal immunity. With it, either could set that immunity aside.

I think it is a mistake, though, to overemphasise the personal-immunity issue when deciding which type of aggression tribunal to support. And that is because the likelihood of personal immunity ever being an issue in an actual trial is effectively zero. For a tribunal’s ability to disregard personal immunity to matter, Putin must not only be captured, he must be captured while still holding office. It is difficult enough to imagine Putin being captured at all, and it is even more difficult to imagine him being captured while in power. If he does ever fall into a tribunal’s hands, it will almost certainly be because he no longer holds office — after a coup, say. At which point personal immunity would be a non-issue.

To be sure, a tribunal’s ability to disregard personal immunity would matter if Putin was tried in absentia. Despite Ukraine’s Prosecutor-General saying that he believes such prosecutions are warranted, however, I think the cautionary tale of the Special Tribunal for Lebanon (STL) makes it is unlikely that any internationally-supported aggression tribunal will permit in absentia trials.. After 14 years and more than 1 billion euros, the STL has managed to convict a grand total of three suspects, all in absentia and each very unlikely to ever be captured. The STL’s legacy of underachievement (being generous) hangs heavily over a tribunal for Russian aggression.

It is also important to emphasise — as I have done a number of times on Twitter — that personal immunity and aggression’s leadership requirement are not the same thing. Personal immunity is a jurisdictional bar that applies to three and only three Russian officials: Putin, Lavrov, and Mishustin (whom no one seems to care about). The leadership requirement is an essential element of the crime of aggression, limiting the range of prosecutable individuals to those who are (quoting the Rome Statute) “in a position effectively to exercise control over or to direct the political or military action of a State.” It is not clear at this point which Russian government officials and military officers qualify as “leaders” for purposes of aggression, but the group of potential suspects extends well beyond Putin and Lavrov. (A couple of days ago at Just Security, members of the Public International Law and Policy Group (PILPG) plausibly suggested that the group might include “certain members of the Russian parliament, the Minister of Defense, and the Chiefs of the General Staff.”) In weighing up the various options for prosecuting Russian aggression, we need to consider these suspects, as well — not put all of our legal eggs in whatever tribunal basket we think will be able to prosecute Putin in the unlikely event he is ever captured while still in power.

These considerations lead me to the recent announcement by the US’s Ambassador for Global Criminal Justice, Beth Van Schaack, that the American government supports an internationalized tribunal instead of an international one. It is fair to say that Amb. Van Schaack’s announcement has not been well received by the human-rights community. Ken Roth, the former Executive Director of Human Rights Watch, offered a typical response on Twitter: “The U.S. government opposes an international tribunal to prosecute the crime of aggression in Ukraine, preferring a Ukraine-based option even though Putin might evade it, because Washington prioritizes avoiding possible future prosecution of its own acts.”

I have great respect for Roth, but this argument is unconvincing. To begin with, it is difficult to understand why an international tribunal would set a better precedent than an internationalized tribunal for future prosecution of American acts of aggression. Just as the victim of a future American act of aggression could enter into a treaty with other states or an agreement with the UN to create a new “international” tribunal, that state could equally enlist the international community in helping it create a new internationalized tribunal. (Which, if the history of internationalized tribunals is any guide, would also involve an agreement between the UN and the victim state.) In fact, given that it is easier to create an internationalized tribunal than an international one, a successful internationalized tribunal in Ukraine would seem to pose a greater threat to the US. After all, even an STCoA supporter like Rebecca Hamilton acknowledges that “[u]nlike a truly international tribunal, an ‘internationalized national court’ is endlessly replicable.”

Roth’s criticism, then, is probably not about replicability. Instead, he is likely arguing that the US prefers an internationalized tribunal to an international one because only an international tribunal can disregard personal immunity. If that view is correct, the argument goes, a successful international tribunal for Ukraine would set a more dangerous precedent for the prosecution of future American presidents and secretaries of state than a successful internationalized one.

I disagree with the premise of the argument, because I don’t believe there is a difference between an international and an internationalized tribunal in terms of the availability of personal immunity. But even if I’m wrong about that, it is unlikely the US’s support for an internationalized tribunal is being driven by fear of the precedent a successful international tribunal would set. After all, personal immunity would only protect the American president and secretary of state. Every other American political or military leader would still be fair game for an internationalized tribunal. Moreover, the threat of a future international tribunal prosecuting a sitting president or secretary of state is largely academic, because there is essentially no chance that such a tribunal would ever get its hands on one. Legally, states would have no obligation to cooperate with a UNGA-endorsed international tribunal (unlike one created by the Security Council) and personal immunity would prohibit states from making arrests. Politically, it would be very difficult (to put it mildly…) for a state to surrender a sitting American president or secretary of state to an international tribunal.

Because personal immunity is essentially a non-issue, there is no reason not to take Ambassador Van Schaack at her word when she says the US believes that the internationalized model provides “the clearest path to establishing a new Tribunal and maximizing our chances of achieving meaningful accountability.” I agree, for reasons I’ve explained at length here at Opinio Juris (such as this post) and in the pages of the Journal of Genocide Research. Others disagree. And that’s fine! Debate is healthy and productive.

What is not healthy and not productive is seeing enemies around every corner. If efforts to hold Russia accountable for its aggression against Ukraine are to succeed, we have to be pragmatic. Part of that pragmatism is, as the title of the post says, not letting the personal immunity tail wag the tribunal dog. Given that the debate is entirely academic, the availability or non-availability of personal immunity should be one of the least important considerations when we decide what kind of tribunal to support, not one of the most important. But another aspect of that pragmatism — one that I think is even more critical — is the willingness to take our allies where we can find them. Creating a new aggression tribunal, international or internationalized, will require a great deal of diplomatic work and a considerable investment of money and resources. That work and those resources will not come from scholars or NGOs. They will come from states — particularly powerful ones, however much we might regret that fact. So those of us who believe in Russian accountability have nothing to gain from alienating the US, especially when the evidence indicates that — for once — it is trying to do the right thing.

I understand the frustration supporters of an international tribunal feel as powerful states throw their weight behind an internationalized tribunal. (A group that includes the US, UK, and Germany, and probably France and Italy as well.) It’s the same frustration I feel when states come out in favour of an international tribunal. The bottom line, though, is — or at least should be — that any kind of aggression tribunal is better than no aggression tribunal. If states ultimately decide to create an international tribunal, I will support that choice. Will supporters of an STCoA do the same if states decide to create an internationalized one instead?