Peace Consulting

Special Court for Ukraine: How to Prosecute War Crimes committed in Ukraine by Russian forces when Russia has not Accepted the Jurisdiction of the International Criminal Court

By <b><br>Dr Marta Katz-Turi</b>

Dr Marta Katz-Turi

In a resolution adopted on Thursday, January 19, 2023, Members of the European Parliament (MEPs) demanded the Russian political and military leadership be held accountable for the crime of aggression against Ukraine.

The European Parliament says the atrocities committed by Russian forces in Bucha, Irpin and many other Ukrainian towns reveal the brutality of the war and underscore the importance of coordinated international action to bring those accountable to justice under international law. MEPs urge the EU, in close cooperation with Ukraine and the international community, to push for the creation of a special international tribunal to prosecute Russia’s political and military leadership and its allies.

Establishing a tribunal would, MEPs argue, fill a vacuum in international criminal justice and complement the investigative efforts of the International Criminal Court, as it currently cannot investigate the crime of aggression when it comes to Ukraine.

Political and military leadership in Russia and Belarus must be held accountable

While noting that the exact modalities and composition of the special tribunal remain to be determined, MEPs stress that it must have jurisdiction to investigate not only Vladimir Putin and the political and military leadership of Russia, but also Aliaksandr Lukashenka and his cronies in Belarus. The European Parliament strongly believes that the establishment of a special tribunal would send a very clear signal to both Russian society and the international community that President Putin and the Russian leadership at large can be convicted for the crime of aggression in Ukraine. MEPs point out that it is no longer feasible for the Russian Federation under Putin’s leadership to return to business as usual with the west. The text was adopted by 472 votes in favour, 19 against with 33 abstentions.

Establishment of the special court for Ukraine under international law

As a general rule, the establishment of a special tribunal for the crime of aggression against Ukraine would be legally problematic. It would imply a broad and even extensive interpretation of existing positive international law. If this latter option is chosen, it is difficult to avoid a certain dilemma, which can be explained by highlighting the two following alternatives. As will readily be understood, while both are legally innovative, the second is much more legitimate than the first.

The first alternative is to favour a rigorous conception of legality, based on respect for the rule of law. Following this path, the tribunal’s creation and jurisdiction could be grounded in Ukrainian domestic law, which would open the door to prosecute Russian nationals for the crime of aggression. This legal basis could be completed by an agreement with the UN or another (regional) organisation and hence the tribunal could be considered as having been ‘established by law’ in conformity with the relevant human rights law instruments. In so far as respect for the sovereignty of Russia is concerned, it would be legally excluded to invoke any exception to immunities ratione personae, such an exception having been strongly rejected by the ILC and the ICJ on the basis of existing practice and opinio juris. The Russian President, Prime minister and Minister of Foreign Affairs are thus legally protected by immunities as long as they remain in office. However, using a broad interpretation of international law, self-defence could arguably be interpreted as justifying suspension of immunities for high-ranking Russian authorities accused of the crime of aggression. Considering the highly improbable character of this scenario, the most likely result in this case is a judgement in abstentia. Conversely, even if it is justifiable in law, this alternative would present serious flaws in terms of legitimacy. To the extent that it would be based on Ukrainian law and on individual self-defence, this tribunal would appear more as a national instrument of reaction to Russia’s armed attack than as an organ representing the international community in the fight against impunity.

To address this drawback adequately, it would be tempting to propose the second alternative, implying a broad interpretation of United Nations General Assembly’s powers, (UNGA) based on the ‘Uniting for Peace’ resolution. Given United Nations Security Council’s (UNSC) inability to discharge its duties due to the veto of one of its permanent members, namely Russia, the UNGA could exceptionally either create itself a special tribunal similar to the Interational Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) or defer the situation in Ukraine to the Internaitonal Criminal Court (ICC) according to article 13(b) of the Statute. The prosecution and judgement of the crime of aggression would then be made not by a group of States but by virtue of the decision of a body representing the international community, which would give a maximum legitimacy to the entire process. In case of a deferral to the ICC, this legitimacy would also result from the choice not to create an ad hoc special tribunal but to use the ICC as the only existing appropriate organ of the international community in the domain of international criminal law. In other words, since extending the UNGA powers opens up the door to two options (creating an ad hoc tribunal or deferring the situation to the ICC), those option would be preferable which further strengthens, instead of undermining, the existing permanent international judicial bodies available. This would also be less costly since it avoids the significant expenses resulting from the creation of a new criminal jurisdiction. However, this dynamic interpretation of international law (especially in relation to UNGA’s powers) is certainly debatable in terms of legality. A potential, additional challenging factor with respect to the deferral of the situation to the ICC may be that the Court itself must also adhere to the extensive reading of article 13(b) of its Statute.

A delicate choice must, therefore, be made taking into account the precedent-value of the present situation. First and foremost, it must be repeated that, following an orthodox conception of legality, in order to derogate from applicable immunities and to impose an obligation of cooperation on the relevant States, the creation of a special tribunal for the crime of aggression against Ukraine would require a resolution adopted by the UNSC according to Chapter VII of the Charter. All the other options mentioned here are only conceived as a means to bypass this legal requirement.

In this respect, two main extensive interpretations can be identified. The first, relevant to any court established in line with alternative (i) as presented above, concerns interpreting extensively the applicable rules on immunities. It asserts that there is an exception to immunities for international crimes, including the crime of aggression, applicable even to high-ranking State officials (Heads of State, heads of Government, Ministers of Foreign Affairs) in office, at least before international courts. This option seems problematic on several accounts, namely (i) its unilateral character; the risk of abuse it entails (any number of States can create an international tribunal by concluding a treaty among themselves which would claim to bypass immunities and exercise jurisdiction on any incumbent or past Head of State for internationals crimes allegedly committed); and even if immunities can be bypassed, the problem with the obligation of cooperation remains intact. The second extensive interpretation (related to alternative (ii) above) concerns the powers of the UNGA. This option is preferred since it entails a strong legitimacy. This legitimacy would be obtained because the creation of the tribunal would be supported by the majority of States in both the UNSC and the UNGA. Indeed, under this option, the proposal to create such a tribunal – or even better to exceptionally give jurisdiction to the ICC – would need to be presented first to the UNSC and be accepted by a clear-cut majority which would force Russia to exercise its right to veto. If, due to the Russian veto, the draft resolution cannot be adopted by the UNSC, the ‘Uniting for Peace’ resolution can be invoked and the powers of the UNGA interpreted extensively in order to allow for the creation of a tribunal which would be binding on all UN Member States. That would imply, however, to gain a support from a majority of two thirds of the voting members. This scenario is certainly difficult to accomplish. Still, a failure to obtain the requite majority in the UNGA or in the UNSC would mean a lack of support and thus of legitimacy for the creation of the special tribunal that should probably dictate to renounce its establishment. Considering the policy that would be required so as to follow this latter option, two additional recommendations can be formulated.

  • Firstly, even if the ICJ’s blessing would be preferable legally speaking, to require an advisory opinion about the legal aspects mentioned above would, in our view, prove too risky. The ICJ comprises judges who are elected by States and is traditionally rather conservative in its interpretations. Accordingly, it is therefore preferable not to ask the ICJ for its legal opinion on the tribunal’s creation through an extensive interpretation of the ‘Uniting for Peace’ resolution, especially since the procedure would be particularly long (between one and three years).
  • Secondly, in view of enhancing legitimacy, the authors strongly advocate that EU Member States propose an amendment to the ICC Statute in order to broaden its jurisdiction in relation to the crime of aggression. Triggering an exceptional procedure for aggression committed in Ukraine without accepting a structural modification of the Statute in order to allow for similar future aggressions to be tried would obviously discredit the initiative, depriving it of much needed legitimacy. Thus, to appear credible, this initiative should be coupled with a long-term will to vest the main permanent criminal jurisdiction of the international community with the jurisdiction necessary to prosecute the crime of aggression in exactly the same way as for other international crimes.

Finally, two additional elements must be highlighted.

First, as just mentioned, it will be extremely important to gain support from a large variety of States to be able to reach the two-third majority required to vote a UNGA resolution based on ‘Uniting for Peace’. This possibility will depend on diplomatic strategies lead by State representatives within the UN. However, the determination of such a strategy goes far beyond the authors’ legal expertise. Nevertheless, it should be noted that the recent resolution on reparations for the aggression against Ukraine which recognises that Russia ‘must bear the legal consequences of all its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts’, and recommends the creation ‘of an international register of damage to serve as a record, in documentary form, of evidence and claims information of damage, loss or injury to all natural and legal persons concerned, as well as the State of Ukraine […]’ 219 was adopted on 14 November 2022 with 94 votes in favour, 14 against and 73 abstentions. When compared to the voting record of the resolution condemning Russia’s aggression against Ukraine (141 in favour, 5 against, 35 abstentions), this voting record suggests that gaining the support necessary within the UNGA for the creation of the tribunal may prove challenging.

Second, a reflection should be made about the effects of the creation of a tribunal (or of a jurisdiction conferred to the ICC) on the issue of war and the perspectives of reaching a peace agreement. Would such a creation lead to an aggravation of the conflict or, on the contrary, would it lead Russian authorities to negotiate a general settlement including the scope and the limits of this judicial avenue? Here again, those questions should be addressed carefully before engaging in such a path. But this kind of problem has little to do with a strict legal analysis; it is rather closely connected with a military assessment of the situation on the battlefield and of the diplomatic dimension of the conflict.

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