There is a difference between two competing groups as to the nature of the institution that should be set up – on the one side led by Ukraine but with strong support from Baltic countries and Poland and various other countries, a full on international criminal tribunal with exclusive competence in relation to the crime of aggression to be set up in The Hague à la Nuremberg – and on the other side the G7 led in particular (by no particular order), the UK, the US, and France who have sort of given a thumbs up to the idea but want uh an institution which is sort of more hybrid and in particular which is not going to set a clear precedent in relation to future tribunals of this kind being set up for other P5 members, their minds having been concentrated by the prospect that if you create a special criminal tribunal for one permanent member of the Security Council today why can’t you do it for another one tomorrow.
On 1 February 2024, the London-based independent human rights NGO Justice and Accountability for Ukraine (JAFUA) – “which seeks to establish legal channels of accountability for violations of international law in Ukraine” – hosted a conference on establishing a special international tribunal for the crime of aggression. As argued, given the International Criminal Court’s (ICC) lack of jurisdiction over the crime of aggression with respect to the Russo-Ukrainian war, resulting in a supposed impunity gap, this special tribunal would be empowered to charge only this crime. Ostensibly, it would only try three individuals – Russia’s President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergey Lavrov. Other crimes that may have been committed by them could be tried by the ICC – assuming, of course, they are ever arrested.
The conference (which can be viewed in its entirety here) was interesting, informative, and insightful. Interesting in that it is always good to hear views and discussions on pressing legal issues. Informative in that it addressed the divide among the two camps on what sort of international tribunal should be established. Insightful in that there is a realization that the possibility of arresting and trying the three targeted suspects is virtually nil (though hope springs eternal) and therefore, in this special instance, for the sake of accountability, trials in absentia should be pursued.
Having spent the better part of a day carefully viewing and occasionally replaying segments of the conference, I am even more convinced that my previously and deeply held position – against the establishment of a special international tribunal for aggression against Ukraine – is correct. No equivocation. It is not that I am opposed to charging the crime of aggression when appropriate; quite the contrary. I think it is shameful that after all these years, and conferences, and papers, and diplomatic maneuverings, the ICC has yet to have in its quiver of core crimes a crime of aggression that has teeth – one that is applicable to all falling under the ICC’s jurisdiction with no exceptions or privileges. Regrettably, a crime of aggression applicable and enforceable across the board to all – irrespective of size, wealth, power, or permanent membership in the UN Security Council (P-5) is lacking. Purposely.
Bluntly, whether the crime of aggression is applicable against the Russian leadership before the ICC is, in my view, of minor consequence – despite what has played out and continues to play out in open view for all mankind to witness. So what if the Russian troika will not be charged and tried for the crime of aggression? There are plenty of crimes on the books to charge. Also, nothing prevents the ICC Prosecutor from drafting a historical background section in the charging documents that establishes the factual predicate for the crime of aggression, even if not charged. Finally, even though it is unlikely for the Russian troika to be arrested and brought to The Hague, if the Kony confirmation of charges proceedings go ahead despite Kony being at large (similar to what was done at the International Criminal Tribunal for the former Yugoslavia with Karadžić), the ICC Prosecutor can showcase the quality, reliability, and persuasiveness of the evidence, even if it is not comprehensively challenged and confronted as in normal circumstances with the accused being present and represented by counsel of choice. Incidentally, this is about all we can pragmatically expect.
Euphoria and exuberance and exhortations aside, a reality check is warranted on the validity and viability of a special international tribunal for the crime of aggression against Ukraine. No amount of spin or grandiloquent rhetoric on the virtues of plugging in the supposed impunity gap (not a zero-sum game, hence the feebleness of this argument) can justify the establishment of this special international tribunal – not if the inescapable realities and shortcoming and fatal defects are confronted with brutal honesty and cold logic. Simply because the Ukrainian government and its eloquent agents are calling for such a tribunal – as they are entitled to do given what the Ukrainians have endured – does not mean that it must or should be done. Aside from the enormous costs which donor countries (not Ukraine) will have to shoulder, what little this boutique tribunal will yield will be tainted, virtually from the outset.
Legitimacy and acceptability of results at international criminal tribunals depend not only on procedural and substantive justice being done (and being seen to be done), but also whether the approaches taken, the law applied, and the findings and holdings have precedential value. Why is that? Well, for starters, how about uniformity, consistency, and predictability?
All international tribunals operate within a malleable margin of political interests and whims. This is particularly pronounced at the international criminal tribunals. Who gets prosecuted or not, what charges are lodged or not, which side of a conflict is more heavily charged (justifiably or not), where the jurisdictional contours are drawn, and how the procedural rules and internal directives are drafted (and continually amended as the process plays out) dictate the extent to which an international criminal tribunal is susceptible to and influenced by politics and predetermined expectations. Yet, despite all these variables, and despite criticisms that surface in no short supply because of the specter of politics, international criminal tribunals, as imperfect as they may be (and many are, including the ICC), generally have the potential for their proceedings and decisions to enjoy widespread approval and acceptance. Parenthetically, that is how international criminal law is developed and refined.
So, let’s look at what JAFUA is pursing. Can we, will we, say the same thing about its prospects? Is the urgency of now – to borrow a phrase heard during the conference – such that we should overlook the inherent obstacles and discernable flaws that should otherwise give pause to any informed observer looking at the facts objectively? I think not.
It all started with Philippe Sands’s article in the Financial Times where he proposed the creation of a special international criminal tribunal that would have only one crime, aggression, and effectively prosecute one presumed criminal, Putin. His reasoning was based on the need to pierce immunity, hence why an international boutique tribunal. Only the crime of aggression would be tried because: (a) there is a supposed impunity gap; and (b) based on the depth of his professional experience, getting a conviction (the inevitable predetermined result) would be achieved relatively easily and quickly.
He claims (as seen from his remarks at the conference) that his concerns were that years down the road, low level soldiers and officers would be prosecuted but not the architects, and in particular, the chief architect of the Russo-Ukrainian war – Putin. That is nonsensical. Were Putin or any of his coterie arrested, they would face prosecution. There may be a gap in the law related to the application of the crime of aggression in this instance despite it being one of the core crimes at the ICC, but there is no impunity gap. Also, concerning immunity – of any kind – that is not an issue at the ICC. So why all the fuss, and why the fiction that but for the establishment of his conceptualization of a special international tribunal, Putin & Co. are exempted?
As for the crime of aggression, might it be worthwhile to consider why it does not apply in this instance at the ICC, despite it having jurisdiction over all other core crimes alleged to have been (and continue to be) committed in Ukraine by all sides and their proxies to this conflict? Which states were opposed to having the crime of aggression – as ultimately defined at the Kampala Review Conference in 2010 – applied at the ICC without reservations, qualifications, and op in/out prerogatives? Unsurprisingly, some of the usual suspects are the ones that want to have it both ways, as Sands points out.
The US sent a highly qualified legal team, led by the esteemed Harold Hongju Koh, to shape the definition and contours of the applicability of the crime of aggression, even though the US had no intention then or in the future of signing the Rome Statute. It just wanted to curtail and constrain any future possibilities of this crime – as adopted by the ICC – being used against US presidents and the highest military echelon (the crime of aggression being a leadership crime). Neither the UK nor France, both big players at the ICC, were prepared to accept the crime of aggression being applicable to their leadership. There were other states as well, but I highlight these two, because, as with the US, they talk a good game, but when push comes to shove on the crime of aggression, i.e., when their ox might potentially (and perhaps rightly) be gored, they opt for justice à la carte.
So should we be astonished that these three states (among others) are pushing for a special international tribunal for the crime of aggression to prosecute the Russian leadership, BUT with the proviso that it does not set precedents for any potential future prosecutions of their leadership. If indeed the crime of aggression is so essential to plugging in a supposed impunity gap against Russia, why would this impunity gap not continue to exist for other states who might engage in the sort of conduct falling within the definition of the crime of aggression? How hypocritical of the US, the UK, and France to be pushing for a limited ad hoc (hybrid or not) international criminal tribunal to prosecute and convict the Russian leadership (this is inevitable, at least so it is presumed by Sands and others), yet at the same time, effectively, maintain the position that the crime of aggression does not apply to their leadership. Where is the consistency? Why should these states be above and beyond the very type of an international criminal tribunal they want to create to prosecute the Russian leadership?
By pushing this contorted notion of double-standard justice à la carte the US Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack – who I hold in the highest esteem – risks tarnishing her credibility. The official US State Department site does not reveal the US’s position other than that it supports “a range of international efforts to document human rights violations, including atrocities, preserve potential evidence, identify suspects, and prepare cases for prosecution.” Nor does Ambassador Van Schaack overtly articulate what Sands transparently noted as one of the elephants in the room. Rather, in opaque diplomatic speak, she notes that the US believes “an internationalized court that is rooted in Ukraine’s judicial system, but that also includes international elements, will provide the clearest path to establishing a new Tribunal and maximizing our chances of achieving meaningful accountability.” If I am wrong, I welcome to be corrected with a clear, unequivocal, and binding statement from the US State Department to the contrary. What a refreshing thought!
Presumably, Ukraine wants a different and perhaps more intellectually honest model that would eliminate the non‑precedential escape-hatch advocated by the three liberal-democratic P-5 members of the UN Security Council. Acts of aggression should be punished. But at what costs? Putin & Co. can and will be prosecuted before the ICC if ever arrested. The sentences are not going to be any different if convicted of one additional crime. The costs of establishing the tribunal Ukraine wants will be high – assuming that there is a high enough and broad enough group of states to support such a tribunal at the UN General Assembly. Currently the number is around 40 states. Not enough. Not if you want this tribunal to be more than just a tool to go after Putin et al. I do not know what the magic number should be, but if the major states (especially none of the P-5) will not be supporting it, how can such a tribunal claim to be truly international? The ICC has the support of 123 states. Still a ways to go to including all UN member states, but a significant number of states the globe over.
My thoughts on trials in absentia are clear. To create a tribunal at enormous costs knowing from the get-go that it will hold one, potentially two trials in absentia, is a waste of precious resources that could be used for other purposes including supporting the ongoing efforts of the ICC in investigating and gathering evidence for future prosecutions (see my posts here and here on the Special Tribunal for Lebanon boondoggle to the tune of a billion USD). But imagine that this boutique tribunal is established. And imagine that Putin is arrested. The proposal is for Putin to be tried for the crime of aggression in one tribunal, and then turned over to the ICC to be tried for whatever else he may be charged with, in addition to the current charges against him. Seriously?
Donor fatigue sets in quickly. Results are never as expeditiously forthcoming as initially envisaged when designing ad hoc tribunals. Costs generally skyrocket. The quality of the process and results seldom meet expectations. I could go on, but the point is that it is not such a cake walk as Sands and others would have us believe.
Is the ICC perfect? No. Is the ICC Office of the Prosecutor (OTP) capable of prosecuting all the cases that are likely to be generated by the Russo-Ukrainian war? Of course not. Is it, however, capable of prosecuting the leadership and those most responsible for crimes committed by Russia against Ukraine and its civilians? The answer is a guarded yes. I say guarded because if past is prologue, the OTP will need to up its game – significantly. ICC Prosecutor Karim A. A. Khan KC has thus far demonstrated a brilliant knack for publicity and public relations and policy-announcements, but I remain unconvinced that he has significantly increased the professionalism and quality of his office – from investigations to trials. To be fair, he inherited an underperforming office in disarray and near dysfunctionality. His predecessor, Fatou Bensouda (see here, here, here, and here) could have done more to undo the mess created by Luis Moreno Ocampo, the first ICC Prosecutor (see here, here, and here).
Undeniably, Khan has made some strides in improving how the OTP functions. But, with the deepest respect and sympathy (his is the most challenging position at the ICC), he seems more interested in headlines and speechifying than rolling up his sleeves in getting his office to function as it should (consider the source, I am a life-long defence counsel). Yes, the situation in Gaza is consuming much of his time. He also needs to deal with all sorts of other hot spots. Yet, if he is going to stave off efforts to create a special international tribunal for the crime of aggression against Ukraine (which, in my opinion, might be necessary), he needs to be more engaging and more transparent and more forthcoming on how his office intends to pursue prosecutions of Russian leaders, and he must explain why diverting resources and efforts into creating a special international tribunal is not a sound use of the precious resources needed by the ICC to carry out its mandate given Ukraine’s voluntary subordination to the ICC’s jurisdiction.
Where to next? Despite my fixed position, I have learned over the years to keep an open mind since no firmly held position or presumed orthodoxy is beyond challenge, reflection, and even reversal. So, my proposal would be to hash out all of this, publicly, at a real symposium where voices pro and con can be heard. Include folks with actual experience from the various international criminal tribunals. And don’t forget to invite voices from the defence.
In parting, I allow for the possibility that my takeaway and views from what I gathered from the conference might be off. So, please indulge in listening to the presentations and Q&A of the panel discussion and make up your own minds.
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Bravo, Michael! Recall what I said in Berlin last year,
Wolfgang
Congratulations Michael, yet another masterpiece from a brilliant attorney. My utmost respect for you Michael, as it were when we first met in 1997 in the Akayesu trial.