The New STCoA: The Good, the Bad, the Curious, and the Terrible

On June 25, the Secretary General of the Council of Europe (CoE) and the President of Ukraine signed an agreement to create a Special Tribunal for the Crime of Aggression Against Ukraine (STCoA). The tribunal, which will be based on Ukraine’s territorial jurisdiction but will have a number of international elements — and is thus properly categorised as a hybrid or internationalised tribunal, as opposed to an international one — is slated to become operational sometime in 2026.

My basic reaction to the new STCoA will come as no surprise to readers of my many posts on the topic. relief. On 16 March 2022, barely three weeks after Russia’s criminal invasion of Ukraine, I suggested (with Sam Zarifi as silent partner) that the CoE and Ukraine should join forces to create an internationalised tribunal. I then watched as a small number of states and scholars spent the next three years fruitlessly trying to get the UN to create the kind of truly international STCoA that Philippe Sands had called for the day after the invasion. Those efforts predictably floundered; state will to create an international STCoA was simply lacking, both in the North and in the South, and no amount of clever diplomacy was going to change that. So states eventually turned toward the internationalised model, and the result is the STCoA that came into being on June 25.

I don’t want to rehash the arguments for and against an internationalised STCoA. Instead, I want to offer some thoughts on specific provisions of the STCoA Statute. Some provisions are good. Some are bad. Some are curious. And one is truly terrible.

The Good

Art. 1 specifies the STCoA’s jurisdiction, providing that “[w]he Special Tribunal shall have the power to investigate, prosecute and try persons who bear the greatest responsibility for the crime of aggression against Ukraine.” Notably, Art. 1 does not contain any temporal limitation. That absence is critical, because it means the STCoA will be able to prosecute not only the Russian political and military leaders responsible for the 2022 invasion, but also those responsible for, inter alia, the unlawful invasion and annexation of Crimea in 2014. That is a welcome development — and one that contrasts with the CoE-created Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, which is regrettably limited to damage caused “on or after 24 February 2022.”

Art. 2, which defines the crime of aggression, basically cut-and-pastes Art. 8bis of the Rome Statute. That’s good, because there was speculation — supported by options in earlier drafts of the STCoA Statute — that some powerful Western states wanted a different definition, one that could not be seen as somehow legitimising the ICC’s aggression jurisdiction.

To be sure, as ably catalogued by Giulia Pecorella here, there are some minor differences between the STCoA definition and the Rome Statute definition, such as the former referring not only to the UN Definition of Aggression (Res. 3314), but also to various General Assembly resolutions concerning Russia’s invasion of Ukraine. In my view, none of those differences are likely to have any substantive effect — and I respectfully disagree with Pecorella concerning the importance of the Statute’s curious statement in Art. 2(4) that “an act of aggression which is determined by its character, gravity and scale to constitute a manifest violation of the Charter of the United Nations, shall also be deemed to constitute a war of aggression.” Pecorella suggests that the reference to a “war” of aggression “may well constitute a regression to the Nuremberg time.” I don’t see why that would be the case, because the operative parts of Art. 2 are taken verbatim from the Rome Statute. Indeed, if anything, the curious language expands what we mean by a war of aggression, because Art. 2(4) deems any manifest violation of the UN Charter a war of aggression, which would seem to go well beyond both Nuremberg jurisprudence and Res. 3314.

Art. 23(5) provides that “[w]here the indictment concerns a head of State, head of government or minister of foreign affairs, the Pre-Trial Judge shall not confirm the indictment and shall order the proceedings be suspended until that person no longer holds that office or an appropriate waiver has been presented to the Special Tribunal.” Most scholars will put this provision, which means that personal immunity applies at the STCoA, in the “bad” category. I’m putting it in the “good” category for two reasons. First, given that there is no argument that an STCoA created by the CoE and Ukraine qualifies as “international” within the meaning of Arrest Warrant, denying personal immunity to the so-called “troika” would violate international law. And second, I think the provision is actually pretty clever, going right up to the Arrest Warrant line without actually crossing it. The Arrest Warrant judgment basically prohibits any national exercise of enforcement jurisdiction, such as issuing an arrest warrant for a member of the troika. (Hence the name of the case.) In my view, merely drawing up an indictment does not qualify as an exercise in enforcement jurisdiction — that line is only crossed by judicial action confirming the indictment, because that is when the suspect faces genuine legal jeopardy.

Art. 35(6) provides that “[t]he written decision under this article shall be delivered within ten months from the date the closing statements end, unless special circumstances justify a delivery within fifteen months.” I believe this is the first time the statute of any criminal tribunal — international or hybrid/internationalised — has imposed a time-limit on judgments. It’s not the most important development, but it is nevertheless a welcome one given how long it has taken for some ICTs to issue judgments. If only the drafters had seen fit to impose a word-limit as well… (I’m looking at you, SCSL.)

The Bad

Art. 8 concerns the qualifications and election of STCoA judges and essentially replicates the relevant provisions in the Rome Statute. Personally, I would have liked the Statute to require Ukrainian judges to serve on trial and appellate STCoA panels; hybrid/internationalised tribunals have traditionally relied on a mix of international and national judges. (Usually ensuring that international judges are in the majority on every panel — see the SCSL and STL.) Instead, all the judges at the STCoA will be international, following the KSC model, and must all have different nationalities. So although Ukrainian judges can be elected to the STCoA, there will never be more than one at any given time. I think that’s a missed opportunity to build judicial capacity in Ukraine, one of the primary reasons for the international and national mix at most of the hybrid/internationalised tribunals.

Art. 28(1) permits the STCoA to hold trials in absentia. I know this provision was important to Ukraine, and international law doesn’t prohibit in absentia trials. But I still think the provision is a mistake. As I’ve written before, the STL should serve as a cautionary tale for the STCoA, with nothing to show for its 14 years of efforts other than the conviction of three suspects in absentia who will probably never be captured. Given that the STCoA is unlikely to have a Russian suspect in the dock anytime soon — certainly not while the war is ongoing — it seems highly likely that the STCoA will hold nothing other than in absentia trials in the near future. And even if a Russian political or military leader convicted in absentia does eventually fall into Ukraine’s hands, Art. 28(3) will (rightly) require the STCoA to retry him or her. On balance, then, Art. 28 seems to exist solely to give the STCoA something to justify its existence.

The Curious

Art. 22 provides that “[w]here groups of victims are identified by the Special Tribunal as specially affected by conduct which formed the basis of the crime as specified in the indictment, the Special Tribunal shall allow them to be collectively represented by legal counsel.” This provision, which is based on the Rome Statute, is odd in the context of the STCoA. I realise that the justification for criminalising aggression has become more human-centric over time, moving away from the traditional emphasis on state sovereignty. Even so, it is still not obvious which individuals in Ukraine should be considered “specially affected” by Russia’s aggression. I presume the drafters were thinking of individuals killed and injured by Russia during the invasion. But will the category of “specially affected victims” be limited to civilians — or will it include soldiers? There is no evident reason for a more restrictive interpretation, given that Ukrainian soldiers have been killed or injured only because Russia chose to criminally invade their country. The less restrictive interpretation, however, would mean that there are hundreds of thousands of military victims — probably more than 500,000 — on top of the nearly 50,000 civilians ones. It would not be impossible to provide legal counsel to such a large number of victims, but it wouldn’t be easy.

Art. 36(1) provides that “[t]he Trial Chamber may impose the following penalties for the crime of aggression: (a) imprisonment for a specified number of years, which may not exceed a maximum of thirty years; or (b) a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” This provision, which is also borrowed from the Rome Statute, makes sense in the context of “ordinary” international crimes. But it seems ill-suited to the crime of aggression, which applies only to the most important political and military leaders and has traditionally been seen, following the IMT, as the “supreme international crime.” How will the STCoA judges determine which defendants deserve less than a life sentence even though they were important enough to satisfy the leadership requirement and were knowingly involved in the “planning, preparation, initiation or execution” of a crime as grave as the invasion of Ukraine?

The Terrible

Finally, there is Article 23(1): “[t]he Prosecutor General of Ukraine refers to the Prosecutor of the Special Tribunal criminal proceedings, information or evidence related to a crime within the jurisdiction of the Special Tribunal requesting the Prosecutor of the Special Tribunal to investigate whether one or more specific persons should be charged with such a crime irrespective of the procedural status of the person concerned in Ukrainian proceedings.” This seemingly innocuous provision actually means that the STCoA’s docket will be completely controlled by Ukraine: unless a particular Russian suspect is referred by Ukraine’s Prosecutor General, the STCoA Prosecutor will be powerless to investigate or prosecute. In other words, under the STCoA Statute, the Prosecutor has no proprio motu power whatsoever.

The STCoA’s dependence on Ukraine for suspects may not be problematic in the short term, when the interests of the STCoA and Ukraine are likely to fully align. But what if there is a change of government in Ukraine and the new Prosecutor General is hostile to the tribunal? He or she could effectively force the STCoA to shutter by not referring any new cases. Or what if a new Prosecutor General is corrupt and takes bribes not to refer certain Russian suspects to the STCoA? Those suspects would effectively be immune from investigation and prosecution.

To be sure, neither scenario is particularly likely. But they aren’t impossible either. So I think it’s a serious mistake for the STCoA Statute to deny the Prosecutor proprio motu power full stop — regardless of why Ukraine might not refer a particular suspect to the tribunal. I also believe that giving a state complete primacy over an ICT is unprecedented (for a reason) in the history of international criminal law. Not even the ICC is so subordinated, despite the principle of complementarity, because the Court’s own judges have the final say over whether a case is admissible.

Conclusion

For too long — more than three years — too many states and scholars let the perfect be the enemy of the good. It was always obvious that the General Assembly was never going to endorse an STCoA in the numbers necessary for it to plausibly qualify as a genuinely international tribunal, one with the power to set aside personal immunity. The choice was always between no tribunal or the kind of internationalised tribunal that the CoE and Ukraine have now created. The STCoA is not perfect; far from it. But it’s the only tribunal we have — and it deserves our support.

Coda

In its Frequently Asked Questions document, the CoE answers the question “Whose idea was this in the first place?” by saying that Ukraine endorsed the idea “following, in particular, the publication of an article by renowned international lawyer and professor Philippe Sands, soon after the full-scale invasion in February 2022.” That answer makes me chuckle: Sands was not only the most prominent supporter of a fully international STCoA, he bitterly rejected suggestions by me, Sam Zarifi, Owiso Owiso, and others that an internationalised STCoA was a better idea. Yet he still gets the credit for the tribunal. We clearly need better PR people!