No more crimes without punishment

Andriy Kostin, Prosecutor General of UkraineMonday 20 March 2023

People visit the graves of their relatives, Ukrainian service members killed in fights against Russian troops, ahead of the first anniversary of Russia's attack on Ukraine, at a military cemetery in Lviv, Ukraine February 23, 2023. REUTERS/Pavlo Palamarchuk

In this column, written exclusively for Global Insight, Ukraine’s Prosecutor-General, Andriy Kostin asserts the importance of holding Russian leaders accountable for the crime of aggression against Ukraine via a special ad hoc tribunal.

On 24 February 2022, the Russian Federation’s unprecedented and unilateral decision to launch a full-scale invasion of Ukraine shocked the world. As Russia has continued to deploy armed force against Ukraine’s territorial integrity and political independence, legal scholars and practitioners are re-visiting the crime of aggression and the practical realities of prosecuting the leaders of a P5 nation for this flagrant violation of the UN Charter.

For the Ukrainians, however, the current invasion is the continuation of a prior act of aggression which began in 2014 with Russia’s invasion and annexation of Crimea. Despite Ukraine’s recognition of the jurisdiction of the International Criminal Court (ICC or the Court) in 2014 – to investigate international crimes committed on its territory since 2014 – the Court cannot investigate the crime of aggression and bring culprits to justice since neither Russia nor Ukraine are States Parties to the Rome Statute. Furthermore, Russia’s permanent member status of the UN Security Council (the Security Council) precludes any referral by the Security Council of the Ukraine Situation to the ICC. The creation of a special ad hoc tribunal is, therefore, vital to ensure that aggression – the crime of all crimes – does not go unpunished.

Criminalising the act of aggression

Erected on the ruins of the Second World War, the UN Charter adopted in 1945 espoused the aspiration of world leaders to ‘save succeeding generations from the scourge of war…’ and maintain peace and security by enshrining the prohibition of the use of force. The criminality of acts of aggression (then termed as the crime against peace) was recognised by the London Conference establishing the Nuremberg Tribunal, but the crime remained largely undefined. In fact, because of the absence of a clear definition of the crime of aggression, its criminalisation during the Nuremberg trials led to controversy. Notwithstanding, the Tokyo and Nuremberg Tribunals tried and prosecuted individuals for such acts.

Finally, in 1974, the UN General Assembly adopted a resolution defining the crime of aggression and provided a non-exhaustive list of acts qualifying as such crimes. But it was not until 11 June 2010, with the adoption of this definition and the activation of the ICC’s jurisdiction over such crime on 17 July 2018, that the 1974 definition was to become a clear basis for investigations and prosecutions of individuals for acts of aggression.

Sovereign immunity

Aggression is considered a ‘leadership crime’ as it requires that the perpetrator be a person in a position that allows them to effectively exercise control over, or to direct, the political or military action of a state.

However, investigating and prosecuting the top Russian leadership – that has planned, prepared, initiated and executed acts of aggression since 2014 – before the ICC is unattainable at this juncture. Personal and functional immunity derived from state sovereignty is most likely to bar investigations – let alone prosecutions – of individuals suspected of this crime before national courts. However, these immunities do not stand as insurmountable hurdles for prosecuting heads of state for international crimes before international jurisdictions.

Drawing from the International Court of Justice’s finding in the Arrest Warrant case that ‘the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances’, the Special Court for Sierra Leone (SCSL) Appeals Chamber determined that Charles Taylor’s head of state immunity was not applicable before international courts. The SCSL concluded: ‘the principle seems now established that the sovereign equality of states does not prevent a head of state from being prosecuted before an international criminal tribunal or state’.

In the Jordan Referral re Al-Bashir appeal judgment, the ICC Appeals Chamber reaffirmed the proposition that ‘there is no rule of customary international law which provides personal immunities vis-à-vis an international court’. The Chamber went on to say that ‘such immunity has never been recognised in international law as a bar to the jurisdiction of an international court’, nor does a ‘head of state immunity present a bar to the court opening an investigation in relation to or issuing a warrant of arrest against a head of state’. The Chamber further noted that ‘the absence of a rule of customary international law recognising head of state immunity vis-à-vis international courts, […][was also] relevant in the horizontal relationship between states when a state is requested by an international court to arrest and surrender the head of state of another state’.

Therefore, the Chamber concluded ‘[no] immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction’.

A special tribunal for Ukraine

To fill the legal vacuum in international criminal justice for prosecuting acts of aggression, on 26 September 2022 Ukrainian President Volodymyr Zelensky announced a plan to set up a special international tribunal to establish Russia’s top officials’ responsibility for a crime of aggression.

Given the legal and jurisdictional challenges to prosecuting the Russian political and military leadership for the crime of aggression, ‘the European Commission presented alternative options to ensure that justice is served: (1) a special independent international court based on a multilateral treaty or (2) a specialised court integrated into a national justice system with international judges – a hybrid court – could be put in place. For both options [the Commission stressed] strong backing of the United Nations would be essential’.

European instances have further expressed support for a mechanism dedicated to ensuring that those most responsible for the crime of aggression against Ukraine could be held accountable. For instance, in its conclusions of 15 December 2022, the European Council encouraged ‘further efforts to ensure full accountability for war crimes and the other most serious crimes in connection with Russia’s war of aggression against Ukraine, including ways to secure accountability for the crime of aggression’. Most recently, on 18 January 2023 the European Parliament issued a resolution on the establishment of a tribunal on the crime of aggression against Ukraine.

How to render a special tribunal for Ukraine an international judicial body

Since 1994 there has been a general consensus within the international community to have those most responsible for international crimes tried by international judicial bodies in case of inefficiency of domestic legal frameworks. These bodies (tribunals, courts and chambers) have varied in the origins of their constitutive texts, as well as in their compositions and jurisdictions.

Legal and political constraints currently existing relating to the creation of a special international tribunal for Ukraine call for a ‘sui generis solution adapted to a sui generis situation’. Such a tribunal will be set up to complement the work of the ICC and will borrow many norms and approaches from the Rome Statute.

If – albeit significant – UN support is necessary to legitimise the international nature of such a new mechanism, the involvement of the Security Council in its creation is regrettably precluded. Therefore, an international tribunal for Ukraine cannot be modeled after the 1994 ad hoc tribunals created by the Council or other criminal jurisdictions like the SCSL or the Special Tribunal for Lebanon, which were based on treaties between the UN (mandated by Security Council resolutions) and governments.

The origin of the Extraordinary Chambers in the Courts of Cambodia (the Extraordinary Chambers), however, provides a pertinent alternative for the creation of an international tribunal under the auspices of the UN but without the express and direct involvement of the Security Council. The Extraordinary Chambers were recognised under an agreement between the UN and Cambodia, concluded pursuant to the request of the UN General Assembly. Although the General Assembly’s support is not comparable to the binding nature of Security Council resolutions, its involvement was decisive in the creation of the Extraordinary Chambers.

Despite the obvious distinct geopolitical, military and temporal context in which Ukraine is currently promoting an international tribunal, the genesis of the Extraordinary Chambers, based on the UN General Assembly’s impetus, undoubtedly deserves careful consideration.

The Kosovo Specialist Chambers, based on an agreement between the EU and the Government of the Republic of Kosovo, is another model upon which the special tribunal for Ukraine could draw from.

This tribunal, created under the auspices of the EU framework, would rest on a multilateral agreement with other states. A resolution from the UN General Assembly recommending its establishment would further legitimise the international nature of such a new forum.

The need for a specific forum to ensure the accountability of Russian leadership is recognised and supported by the main actors in Ukraine’s geopolitical landscape. Commitment to this idea is expressed by the Czech Republic, Denmark, Estonia, Germany, Latvia, Lithuania, the Netherlands, Poland and other states. The importance of such a tribunal has also been the subject of wide-ranging discussions of international bodies, including: the Parliamentary Assembly and the Committee of Ministers of the Council of Europe; the NATO Parliamentary Assembly; the European Council; the European Parliament; and the Organization for Security and Co-operation in Europe. The breadth of support for the special tribunal is exemplified by the recently adopted resolution of the European Parliament, urging the EU to immediately start its preparatory work on the special tribunal.

In fact, the emergence of such a special tribunal is one of the key issues raised by the Ukrainian President, the Ukrainian Minister for Foreign Affairs, Members of Parliament and the Prosecutor General in the course of international conferences, consultations, negotiations etc.

To this end, the Ukrainian Prosecutor General’s Office has already taken steps to investigate the legal and factual elements of the crime of aggression, as well as the full range of international crimes arising from the Russian aggression in accordance with international due process and standards. Ukrainian authorities are taking decisive steps for the preparation of the launch of the tribunal. This work focused on drafting of statutory documents as well as the promotion of the establishment of a tribunal among international organisations and foreign states.

Functional immunities cannot bar prosecution of Troika members (Minister for Foreign Affairs, Head of State, Head of Government) for the crime of aggression before the Special Tribunal, provided that it is created in a proper manner.

Therefore, the Special Tribunal for the crime of aggression against Ukraine shall be established based on a UN General Assembly Resolution authorizing the UN Secretary-General to negotiate an appropriate treaty between the United Nations and Ukraine. Thus, the Special Tribunal shall be an international judicial organ.

The jurisdiction and functions of the Special Tribunal are to be defined in the Statute of the Special Tribunal, which will be an annex to the multilateral treaty/agreement establishing the Special Tribunal. The Statute of the Special Tribunal will be an integral part of the treaty/agreement establishing the Special Tribunal.

The hurdles facing the special tribunal

Questions have been raised with respect to the legitimacy of a special tribunal for the crime of aggression, as well as the ability of such a tribunal to overcome the personal and functional immunity of Vladimir Putin, Sergey Lavrov and other high-level Russian state officials. However, neither of these hurdles is insurmountable.

In response to legitimacy concerns, it is not unreasonable to conclude that the notable political will for the establishment of a special tribunal for aggression could give rise to a body based upon a wide-ranging multi-lateral agreement. As a result of the emergence of this jurisdiction prompted by the international community, the enforceability of its arrest warrants, orders and judgments by States Parties to the treaty establishing the tribunal, member states to the organisation’s multi-lateral body (that created the tribunal) and any other states endorsing the work of the tribunal cannot be doubted. In this instance, the backing of the UN General Assembly should be sought. Based on its firm and consistent condemnation of Russia’s unilateral and unjustified attack on Ukraine, the General Assembly’s support can reasonably be expected.

In sum, both the necessary legal mechanisms and political readiness of the international community are present to set up an ad hoc tribunal on aggression against Ukraine. Although prima facie there are legal obstaсles – notably the individual immunity of high officials of the Russian Federation and the potential difficulties in securing authorisation from the necessary international actors – these can be overcome with political and legal support. In any event, all efforts invested to launch and secure the work of this tribunal are justified, necessary and timely and should be enhanced. The Russian leadership’s impunity for its continued commission of acts of aggression against Ukraine since 2014 should not be allowed to persist. Justice demands no less.