Comparing the International and Internationalized Models — a Response to Labuda

Comparing the International and Internationalized Models — a Response to Labuda

I had hoped not to write any more posts about the international vs. internationalized tribunal debate. I have written extensively on the topic already, and the prospects for an international tribunal grow dimmer with each passing day. Alas, Patryk Labuda’s most recent entry on the topic at Just Security requires a response: although the arguments are the same unpersuasive ones we have been hearing for the past 18 months, Labuda makes them with his usual erudition and eloquence. (I mean that sincerely.) So it is important for his version of those arguments to not stand unchallenged.

I am a bit short of time, so I will proceed in classic fisking style — quoting Labuda’s various points and then responding.

[T]he question of how to prosecute aggression may have consequences as far-reaching as whether to seek punishment for Russia’s behavior at all.

This is a curious argument. It suggests that Labuda believes no aggression tribunal would be better than an internationalized aggression tribunal, although he seems to disclaim that position later in his post. Regardless, it’s worth noting that Ukraine disagrees, as its rhetoric concerning an internationalized tribunal has softened considerably as of late (see here and here, for examples) — almost certainly in response to the worsening diplomatic prospects of an international tribunal. Indeed, later Labuda himself acknowledges that, for Ukrainian diplomats, “the special tribunal’s institutional design became more pressing as negotiations shifted from whether to how the tribunal should proceed.”

Although Ukraine and its allies, especially States from Eastern Europe, embraced an international tribunal in the months after Russia’s full-scale invasion, the main Western powers hedged their views.

Note how Labuda subtly suggests that the “main Western powers” are not allies of Ukraine. (Because “Ukraine and its allies… embraced an international tribunal.”) Tens of billions of euros in military and other forms of assistance to the war effort beg to differ. Indeed, the only significant daylight between Ukraine and the “main Western powers” concerns the form of an aggression tribunal.

Ukraine’s clear preference for an international tribunal has faced resistance, with recent statements by Ukrainian diplomats (see herehere and here) pointing to an entrenched split between Western powers in the G7 and a host of other States forming the Core Group (31 others in total, including a cross-regional panoply of members from Western States, Eastern Europe and Latin America).

This is profoundly misleading, because it suggests that the only members of the Core Group that favour an internationalized tribunal are the G7 states — with the 31 others in favour of an international tribunal. That is simply not the case. I have spoken with numerous individuals involved in the Core Group negotiations on both sides of the international/internationalized divide, and it is clear that states supporting an international tribunal are increasingly in the minority, essentially limited to Ukraine and much of Eastern Europe. That is why, after months of Ukrainian efforts to whip support for an international tribunal in the Core Group, states have lately been circulating written memos to flesh out what an internationalized tribunal would look like and how it would function. (This is also why Ukraine’s rhetoric concerning such a tribunal has begun to soften.)

Also note how desiccated Labuda’s “cross-regional panoply” actually is, despite the Core Group having met for nearly a year. Number of African states in that panoply: zero. Number of Asian states in that panoply: zero. Number of Middle Eastern states in that panoply: zero. As for Latin American states, there are indeed three states from that region — three out of 33 (9%). I leave readers to judge whether this is “a magnificent or impressive array” of states, as the dictionary defines “panoply.”

Given the public disagreement between Western powers and other “Friends of Accountability,” it is worth examining the main arguments for and against each model, before assessing the global stakes of this conversation.

Labuda again suggests that “Friends of Accountability” who are not “Western powers” support an international tribunal. As discussed above, that is simply not true.

[A]n international tribunal could issue arrest warrants for the presumed masterminds behind Russia’s aggression and – provided it obtains custody – put them on trial for the crime of aggression.

I return to the immunity issue below. For now, note that this claim is misleading: there is no reason why an international tribunal that did not have to recognise Putin’s personal immunity could not prosecute Putin in absentia. Indeed, Ukraine has made inordinately clear that it favours using in absentia trials for the crime of aggression. Andriy Kostin, for example, has said that an international tribunal should go after “the highest political and military leadership, including Putin, for the crime of aggression” and claimed that such trials “could be in absentia, because it’s important to deliver a matter of justice for international crimes even if perpetrators are not in the dock.” Labuda himself is obviously uncomfortable with in absentia trials, as he indicates in the introduction to his post. But such trials are not unlawful, so it is important for readers to be aware that creating an international tribunal almost certainly means Putin (and others) being tried in absentia.

Given the long history of imperial and colonial exploitation that underpins this war, international prosecutors and judges would be seen as more impartial than their Ukrainian counterparts who would be asked to sit as judge and jury in a case over the invasion of their own country.

I never cease to be amazed by this argument. Supporters of the international model, as well as Ukraine itself, have made clear that Nuremberg provides the inspiration for an international tribunal for Russia’s aggression. To quote Zelensky: “Anyone who has given criminal orders and carried out them by killing our people will be brought before the tribunal which should be similar to the Nuremberg tribunals.” But therein lies the rub: the Nuremberg trial was presided over by judges from states that had been the victims of Nazi aggression. This is particularly obvious for the judges from the UK, France, and the Soviet Union. They were asked “to sit as judge and jury in a case over the invasion of their own country” — yet we continue to revere their work and the seminal judgment they produced. Does Labuda believe the IMT judgment was not impartial and thus not legitimate?

It is also worth noting that no one has suggested an internationalized tribunal would involve only Ukrainian judges (or prosecutors). As Labuda well knows, every hybrid tribunal to date (I don’t consider the Iraqi High Tribunal a hybrid) has relied on mixed benches of international and national judges. Do we question the legitimacy of each and every one of those tribunals? Should we devalue the jurisprudence they have produced? That would be a strange position to take, given that international-tribunal supporters invariably cite Taylor as the key decision supporting the “internationality” of a tribunal endorsed by the UNGA. The Taylor decision was issued by the Appeals Chamber of the SCSL, which included a judge (George Gelaga King) from Sierra Leone. Should we question the impartiality and legitimacy of the decision because of King’s involvement?

Equally important, an international tribunal set up by a significant number of States would create a precedent, deterring great power intervention in the future and, if such cases do occur, facilitating a coordinated response.

This is true! But so would an internationalized tribunal — which even supporters of an international tribunal acknowledge could be replicated more easily. The real question, of course, is which kind of tribunal would enjoy greater state support and thus greater legitimacy, more on which below.

[H]ow many States would have to vote in favor of such a tribunal to give it sufficient legitimacy and set aside immunities… Some commentators set the legitimacy threshold as high as a two-thirds majority of voting States, but the better view is that Ukraine should leverage its anti-imperial and post-colonial credentials to build a cross-regional coalition and that a simple majority of voting States would suffice.

This argument is flawed in numerous respects. To begin with, it’s worth noting that Labuda provides only one link to the supposedly “better view” — an earlier blog post that he wrote. That post does not actually offer a legal argument for why a UNGA resolution adopted by a “simple majority of voting States” from a “cross-regional coalition” would suffice to make a tribunal international. It simply says international-tribunal advocates rely on international jurisprudence for their argument.

The link Labuda provides in his earlier blog post is broken, so I don’t know whether he is citing himself again or one of the other scholars who support an international tribunal. There is no need to rehash the debate, though, as the various positions are clear at this point. The only new aspect of Labuda’s argument is his suggestion that a UNGA resolution endorsing an international tribunal must not only be adopted (which could happen even without a bare majority of the membership voting in favour of it, given that both ordinary procedure and Uniting for Peace votes exclude states that abstain or do not vote at all), but also must reflect a “cross-regional coalition.” Labuda’s position, while still insufficient to guarantee a tribunal’s legitimacy, at least vaguely echoes the ICJ’s famous statement in North Sea Continental Shelf that state practice must be “very widespread and representative” to create a new rule of customary international law. Scholars such as Trahan and Coracini, by contrast, have claimed that a UNGA resolution adopted with 60 positive votes — any 60, barely 30% of the UN’s membership — would be enough to create an international tribunal that could set aside personal immunity. Why the other 130+ states would perceive such an “international” tribunal as legitimate is hard to fathom.

The problem with Labuda’s (better) position is that there is no evidence such a “cross-regional coalition” is possible. As I noted earlier, three of the main regions in the world — Africa, Asia, and the Middle East — are completely absent from the Core Group’s negotiations over an aggression tribunal, while a fourth, Latin America, is barely represented. Could that change? Sure, anything is possible. But I am continually struck by the willingness of international-tribunal supporters to disregard anything that calls their sunny optimism into question: previous UNGA votes, with resolutions calling for consequences for Russia far less dramatic then the prosecution of a sitting Head of State being adopted by less than a majority of the UN’s membership; the almost total absence of non-European states from the Core Group; active diplomacy by Ukraine and like-minded states for nearly a year (at least) failing to attract even a handful of statements by “smaller and weaker States” (Labuda’s expression) in favour of an international tribunal; an international organization that speaks for one important region, Africa, explicitly rejecting the right of even the ICC to ignore personal immunity; the collective opposition of the G7; the gradual softening of Ukraine’s opposition to an internationalized tribunal; and so on. Surely those facts are at least relevant to whether we can expect support for an international tribunal to not only grow, but grow into a “cross-regional coalition” capable of adopting a UNGA resolution.

[T]he working assumption is that such a hybrid… Special Tribunal would be acting on the basis of Ukraine’s delegated jurisdiction or, more controversially, pursuant to a third States’ universal jurisdiction to prosecute the crime of aggression (only a few States recognize universal jurisdiction over this crime, including Poland and the Baltic States).

I have not heard any state that favours an internationalized tribunal suggest universal jurisdiction as its basis. Which is not surprising, given that the small number of states with universal jurisdiction over aggression generally support the international model. The idea states are discussing would involve Ukraine agreeing to transfer its territorial jurisdiction to another state. Labuda is right to point out that such delegation is “untested at other international criminal tribunals” (kind of like the idea that the UNGA can create an international tribunal with the power to set aside personal immunity!), but there is precedent for the idea in the MH17 trial. As far as I know, states did not challenge the legal validity of Ukraine’s transfer of jurisdiction to the Netherlands in that trial.

 The bottom line is that, led by the United States and Germany, the G7 support a hybrid model less on grounds of principle rooted in the tribunal’s purported benefits, and more out of a fear that an international model might not receive sufficient votes to make it international. What explains this fear of the unknown?

I’ve addressed this above, as well. I would just add that it’s safe to say the US and Germany have a much better idea of what is going on behind the scenes, in the Core Group and at the UN, than Labuda or I do. So if both are skeptical, their skepticism at least needs to be taken seriously — not casually dismissed as idle speculation.

[G]iven that an investigative body, the International Centre for the Prosecution of Aggression, is now up and running, advocates of hybridity must still answer the following question: what is the value added of their tribunal today?

This is a fair question — one that we should equally ask of an international tribunal. The only difference between an international tribunal and an internationalized one is the former’s purported ability to set aside the personal immunity of three individuals who are exceedingly unlikely to be captured or surrendered while still in power. So what is the “value added” of an international tribunal today, given that “a factual pre-requisite for [such a] tribunal to exercise its powers is missing” (to quote Labuda) — namely, a defendant with personal immunity whom it can actually prosecute?

Unlike a hybrid tribunal, which by its sponsors own admission would lack the power to pierce Putin’s immunities, an international tribunal could issue an arrest warrant for Putin without waiting for regime change in Russia. So why does an arrest warrant matter even if the Russian leadership cannot be (immediately) arrested? In realpolitik terms, a warrant issued by an international tribunal, created with the General Assembly’s approval, further delegitimizes Putin and increases the likelihood of his eventual fall from power.

There is some truth to this, but Labuda’s argument is overstated. Most obviously, an undeniably international court, the ICC, has already issued an arrest warrant for Putin, with further charges almost certain to follow. Will aggression charges really further delegitimize Putin? The argument assumes there are states that do not view the ICC’s charges and arrest warrant as legitimate but wold be willing to credit a new and legally-untested international tribunal charging Putin with aggression and calling for him to be arrested. I think that’s likely to be a null set. And how exactly would aggression charges on top of ICC charges “increase the likelihood of his eventual fall from power”? Labuda never tells us.

[T]he very fact of issuing an arrest warrant for Putin creates a momentous legal precedent by confirming that the troika enjoy no personal immunities for the crime of aggression before a tribunal with jurisdiction over such a crime.

Such an arrest warrant would “confirm” only that the judges themselves believe the tribunal has the power to set aside Putin’s personal immunity. The precedential value of their decision would be determined by how states reacted to an arrest warrant being issued. That reaction, in turn, would largely be a function of whether states viewed the tribunal as legitimate — and as I’ve argued above, a significant number would not view the tribunal as legitimate if its purported “internationality” resulted from a UNGA resolution adopted by less than a bare majority of the UN’s members. (And nearly all African states would reject the arrest warrant regardless.)

In fact, the value of an arrest warrant for aggression would likely be greater than an in absentia trial of Russia’s leadership. While Ukraine appears to favor such a trial – where the accused would be prosecuted in their absence – in absentia proceedings are widely seen as contentious under international law, and should be avoided when possible.

I completely agree. The problem is that Labuda has no way to prevent an international tribunal from trying Putin (and others) in absentia. And such a trial seems overwhelmingly likely. As noted earlier, Ukraine openly advocates in absentia aggression trials. Moreover, if Labuda is correct that “it is not clear why States would establish a tribunal that, by its own advocates’ admission, lacks the legal powers to do the main thing it is purportedly established to accomplish,” the same reasoning applies just as strongly to trying Putin in absentia. If prosecuting Putin is the raison d’etre of an international tribunal — which it obviously is, given supporters’ obsession with personal immunity — why would an international tribunal issue an arrest warrant for Putin but then not try him in absentia if the arrest warrant remained unexecuted? The idea beggars belief — especially if states have gone to all the trouble to create an international tribunal and the tribunal doesn’t have anyone to prosecute in person, as is highly likely. Do we really believe the judges and prosecutors are just going to sit around waiting for someone, anyone, who qualifies as a leader to be captured when they have the power to prosecute in absentia the man most responsible for the criminal invasion of Ukraine? Again, belief beggared.

[C]ontrary to suggestions by hybridity advocates, this negative precedent would be exacerbated by a hybrid tribunal issuing warrants for senior Russian officials other than the troika, for instance the minister of defense, as this could constitute customary law in favor of the troika’s immunities.

This is simply incorrect. By themselves, such warrants would not indicate that states reject the power of the UNGA to create an international tribunal, much less that states reject the idea that personal immunity does not apply before international tribunals. (Although, again, that is the already-existing position of the African Union.) The warrants would prove only that there was not enough state support to create a genuinely international tribunal for Ukraine.

To be sure, if states justified their refusal to support a UNGA-endorsed international tribunal by claiming that international law does not permit an international tribunal to be created in that way, their statements would constitute opinio juris. But even then the statements would not help establish a customary rule that personal immunity does not apply before any international tribunal. They would at most count toward a rule that says the UNGA cannot create an international tribunal — no matter how widely supported.

[A] remarkable aspect of the ongoing diplomatic negotiations is how Western government officials increasingly leverage critiques of “Western double standards” to accomplish this regressive development.

As I’ve been saying for nearly two years, it is a mistake for Western powers like the US, the UK, and France, with their unclean hands, to lead the charge for an aggression tribunal — any aggression tribunal. And that is true even when one of those states has a superb war-crimes ambassador like Beth Van Schaack, whose commitment to international criminal law, including the crime of aggression, is unimpeachable. What Labuda doesn’t explain is why the other G7 states — Canada, Germany, Italy, and Japan — are equally opposed to an international tribunal. Is Germany really worried that its head of state or foreign minister will one day commit aggression? Are the others? It is, of course, possible that Canada, Germany, Italy, and Japan support an internationalized tribunal purely for venal reasons. But supporters of the international model have yet to identify what those reasons might be — and it is also possible that, rightly or wrongly, the other G7 states do so out purely out of principle.

By making the perfect the enemy of good, these types of arguments play into the hands of Western powers.

I will end with this quote, because I find it profoundly ironic. Labuda once asked me on Twitter whether I would ever be willing to support an international tribunal. I replied (as I have often said) that I would prefer an international tribunal to an internationalized one as long as that tribunal was endorsed by a UNGA resolution that enjoyed at least the amount of state support necessary for the creation of custom — support far greater than either Trahan/Coracini or Labuda have argued is enough. I stand by that position.

I have also asked, both here and on Twitter, whether any scholar in the international camp would be willing to support an internationalized tribunal if an international one proves impossible to create. Ukraine is close to adopting that position, even if it is not quite there. But I have not seen even one scholar state unequivocally (Labuda himself comes close) that an internationalized tribunal would be better than no tribunal at all. So who, exactly, is “making the perfect the enemy of the good”?

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Courts & Tribunals, Featured, International Criminal Law, Organizations, Public International Law, United Nations Reform, United Nations Security Council, Use of Force
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