Ukraine’s struggle for its survival and identity continues in the aftermath of unprecedented aggression by one of the permanent members of the UN Security Council – Russia. Not only its gravity, scale and brutality make this aggression unprecedented, but so too does the character of the aggression which encompasses an extreme Russian ideology of erasure of national sovereignty. Every day we witness indiscriminate attacks on civilians, terror, torture, massive and systematic war crimes, including deportation of children, and cynical propaganda on the highest level reflecting what Putin’s Russian world imagines and brutally seeks to create. The ideology of the Russian world glorifies the Soviet past, denies the existence of the independent and sovereign state of Ukraine, claims a broader Russian sphere of exclusive interests and influence, and fails to respect the international rule of law and fundamental principles of democracy. Putin’s pursuit of this ideology had not been repelled by the international community in Chechnya, Georgia, or Crimea. Thus he kept implementing his imperial and communist Russian ambitions toward previously occupied lands and nations and denying their sovereignty and independence. Today the question remains if the international community will have courage, political will and unity to legally address the crime of aggression against Ukraine and the ideology fueling it in the most effective way: an international special tribunal on the crime of aggression against Ukraine.
Aggression against Ukraine has been recognized and condemned by the UN General Assembly and other international and regional organizations, including NATO, the Council of Europe, the African Union, and others. The crime of aggression is defined in international law, but in the case of the crime of aggression against Ukraine an impunity gap exists because the International Criminal Court does not have jurisdiction in this concrete situation and is not likely to have it in the nearest future. For this reason, discussions on the establishment of an ad hoc criminal tribunal for the crime of aggression being committed against Ukraine continue. There are high expectations among the international community that the legal path chosen is capable of accommodating international law and the manifest violation of the UN Charter being committed by Russia against Ukraine. The goal must be to condemn the Russian ideology and hold Putin and his entourage to account for the core international crime of aggression against Ukraine that continues to be planned, prepared, and brutally executed in our own times.
While perfect international law solutions are deadlocked because of Russia’s seat in the UN Security Council, politicians, experts and international lawyers keep discussing two different models for establishment of the tribunal for the crime of aggression committed against Ukraine. The first option is an international tribunal established following the recommendation of the UN General Assembly for the UN Secretary-General to negotiate an international agreement between the UN and Ukraine establishing the court (the “Special Tribunal”). The second option is a hybrid or internationalized national tribunal as it was named by U.S. Ambassador for Global Criminal Justice Beth Van Schaack, a court that would be established within the Ukrainian judicial system (see Ambasadorę Van Schaack’s Remarks on the U.S. Proposal to Prosecute Russian Crimes of Aggression – United States Department of State). In his recent address in The Hague, President of Ukraine Volodymyr Zelenskyy sent the clear message that Ukraine needs bold decisions that will correct shortcomings of the current international legal system — “not something hybrid that can formally close the topic” in terms of the diplomatic conversations, but that will not truly and fully address the problem at hand (see Speech by Volodymyr Zelenskyy to representatives of the public, political and expert circles of the Kingdom of the Netherlands and international institutions based in The Hague — Official website of the President of Ukraine).
In the end any decision on the establishment of the criminal tribunal for the crime of aggression against Ukraine will be a political decision. And even though in the enforcement, application, and development of international law the fusion of international politics and international law is inevitable, the modality of an internationalized national tribunal is more about foreign policy than legal choice. The second option compromises international law at a critical time when the legitimacy of international law must be restored to effectively confront, both militarily and judicially, the crime of aggression against Ukraine that is being committed by Russia, a permanent member of UN Security Council.
– The legitimacy of international law can only be restored by establishing a fully-fledged international tribunal for the crime of aggression under recommendation of the UN General Assembly.
The definition and establishment of the crime of aggression under international law protects fundamental values of the international community, a prominent one being international peace and security. According to the International Law Commission, the prohibition of the use of force protects not only the survival and security of individual states, but more than their sum, namely the interests of the international community as a whole (see Yearbook of the International Law Commission 2001 Volume II Part Two (un.org)).Theoretically, a national criminal trial established within the Ukrainian judicial system could implement the objective of ending impunity and ensuring accountability for the crime of aggression against Ukraine. But it could never restore the legitimacy of international law to defeat the crime of aggression being committed against Ukraine, as that is the task of institutions responsible for the restoration and maintenance of international peace and that apply international law directly. Therefore, the UN General Assembly resolution recommending establishment of an international criminal tribunal for the crime of aggression against Ukraine is of crucial importance for ensuring the continuing legitimacy of rules on the prohibition of the use of force and proving that accountability under rules of international law is inevitable for such manifest violations of the UN Charter.
According to the liberal theory of international relations, the fundamental interest of the international community, namely international peace, is served by the certainty that acts of aggression are met by the collective opposition of states. According to the realism theory of international relations, the functioning of the collective security system is considered from the sovereign policy perspective. According to scholar S. D. Krasner, the defining characteristic of the international system for realists is anarchy. The most important empirical reality is that national power, including but not limited to the ability to wage war, matters more than anything else (see S. D. Krasner “Realist views of international law” in ASIL Proceedings (2002)). Probably for realpolitik reasons, even though the UN Charter prohibits war as a means for solving political conflicts, in the current era “aggressiveness” occasionally has been easily forgiven and probably would still need to be forgiven for some states instead of being prosecuted in a special criminal tribunal or the International Criminal Court.
But international law as it stands today already includes compromises for two different forms of aggressive uses of force. Not all acts of aggression as defined by the 1974 UN General Assembly resolution on the definition of aggression can be and will be prosecuted as crimes of aggression under international law because the level of manifest violation of the UN Charter will not be found. The gravity and scale of aggression against Ukraine, framed by the character of Russian ideology holding that Ukraine as a sovereign and independent state does not exist, is the very kind of situation that international community will consider as an act of aggression constituting a manifest violation of the UN Charter. This has already been and will continue to be the case for the international community had to and must still consolidate its efforts to ensure accountability and restore faith in fundamental rules of international law concerning non-use of force in international relations.
The legitimacy of the decisions at stake depends on the international legitimacy of the tribunal that indicts and sentences political and military leaders of an aggressor state that is a permanent member of the UN Security Council. To avoid the risk of illegitimacy, the tribunal must be established under international law and have the mandate for prosecution of the crime of aggression entrusted by the whole international community. The crime of aggression has special inter-state political dimensions in comparison to other international crimes, the direct object of which is not individuals, but the whole state. In this case that means the independent sovereign state of Ukraine and the integrity of its borders and political independence that the UN Charter and international law have promised to protect and defend. The fact that the crime of aggression involves complex political judgements also was acknowledged in the Draft Code of Crimes against the Peace and Security of Mankind. Even though not corresponding to state practice, it provides that an obligation to prosecute or extradite could be applicable to all international crimes, except the crime of aggression, which because of its political dimension should be prosecuted in the international court as national courts would not be able to effectively carry out such prosecutions of the crime of aggression.
This sounds like a purely legal argument. One can argue that in the case of the crime of aggression against Ukraine, on 2 March 2022 the UN General Assembly adopted a resolution entitled, “Aggression against Ukraine,” which deplored in the strongest terms the aggression by Russia against Ukraine as being in violation of Article 2(4) of the UN Charter—prohibition of the use of force—with 141 votes in favour, 5 votes against and 35 abstentions. Thus Russia’s acts of aggression as being in violation of the UN Charter has been acknowledged by the UN General Assembly. Sentencing individuals in an internationalized national court for the crime of aggression might then be viewed as legally feasible. Maybe. But the question remains if it is legally right or legitimate to close our eyes to the extraordinary nature of the crime of aggression in comparison to other international crimes.
The Kampala resolution on the crime of aggression adopted by the ICC’s Assembly of States Parties states that the aggression amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State (see ICC-ASP-16-24-ENG.pdf (icc-cpi.int)). This means that the crime of aggression, unlike the other core crimes of the Rome Statute, should rather not be prosecuted at the national level. Yoram Dinstein in War, Aggression and Self-defence submits that the nature of crimes against peace is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judge. Any panel of judges comprised exclusively of enemy (or former enemy) nationals, for example, will be suspected of irrepressible bias.
One of the features of an internationalized national tribunal that has been suggested is incorporation of international judges. But this and other elements of so-called internationalization, such as acceptance of an international law definition of the crime of aggression or incorporation of international human rights standards, will not create the international mandate for prosecution of the crime of aggression against Ukraine. It will only reduce doubts regarding the legitimacy of the national prosecution, but it will not turn a national judicial institution into the international one which would be entrusted with the essential interest of the whole international community to ensure accountability for the crime of aggression against Ukraine.
– Making the internationalized national tribunal legal will be as difficult as making it legitimate.
Article 125 paragraph 5 of the Constitution of Ukraine explicitly prohibits the establishment of extraordinary and special courts. Besides the particular domestic legal difficulties of changing this constitutional provision while martial law applies, special national procedures will have to be drafted, discussed, considered and adopted for the appointment of international judges to become possible. Even though the argument is being made that for such a purpose martial law could be lifted, in order to change this provision of the Constitution, the approval of two consecutive parliamentary sessions and the Constitutional Court’s opinion on constitutionality would also be needed. Even in the countries not suffering from unprecedented aggression, such processes take a long period of time and are hardly predictable.
Furthermore, international support for an internationalized national accountability effort for the crime of aggression against Ukraine could help solve problems of finances and human resources for such a tribunal. But international support could not make the national process of the establishment faster or avoid being undermined by different political obstacles and configurations that could arise in the country still facing internal challenges including from Russia’s collaborators. For these reasons, the argument that an internationalized national tribunal could be established within the Ukrainian judicial system faster and in a more effective way than a favorable vote in UN General Assembly lacks credibility. International financial support for the tribunal will be needed in any modality chosen and voluntary contributions of states committed to fighting impunity and ensuring accountability for the supreme international crime of aggression against Ukraine will be crucial. But the more international legitimacy is vested in the establishment of the tribunal, the more likely that states will see it as being an international and consolidated accountability effort standing for fundamental interests of the global community as a whole. This would definitely lead to broader trust and sustained support (including financial resources and staffing) by states in comparison to leaving international support issues to bilateral agreements with separate states that Ukraine would have to negotiate.
Furthermore, as it was stated in the International Court of Justice Lotus case, jurisdiction is about the potential collision of sovereignty rights. Considering that international accountability interests in the case of aggression against Ukraine are so substantial, objective and subjective impartiality of the accountability mechanism is of crucial importance. Ambassador Van Schaack, for instance, earlier postulated that there is “little in the way of state practice or opinio juris in favor of the exercise of domestic jurisdiction over the crime of aggression.” She dismissed Nuremberg and the ensuing elements of state practice and opinio juris since they are “sui generis” and “preceded the development of modern doctrines of foreign sovereign immunity and universal jurisdiction” (see B. Van Schaack, “Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression”, Journal of International Criminal Justice, 10 (2012)).
For these reasons, one can understand why Ukraine supports establishment of a full-fledged international tribunal. The state as victim of the crime of aggression has an essential interest grounded in the fundamentals of international law and human rights development to entrust prosecution for the supreme crime of aggression with an impartial international institution that could not be accused of lacking legitimacy, independence, and authority to try the crime of aggression and, most importantly, to try political and military leaders of the aggressor state whether or not they remain in office.
In the case of crime of aggression against Ukraine, fundamental rules in relation to the protection of state sovereignty are being and will be challenged. The definition of the crime of aggression in international law and the development of the human rights agenda demand significant redefinition of the sovereignty concept. The International Criminal Court issued arrest warrants against Putin and Maria-Lvova Belova for the alleged war crime of unlawful transfer of population (children) from occupied areas of Ukraine to Russia. The arrest warrants reflect important developments of international law concerning the obligation to prosecute international crimes and the non-applicability of immunities under international law. Unprecedented decisions that still await the establishment of the tribunal cannot ignore these developments in international law. The pending decisions must be fully international and reflect the interest of the international community to be effective as opposed to decisions of an internationalized national court that will have to be constantly proven to be international in character and enforcement in order to be taken seriously.
The modality of an internationalized national tribunal without the need to achieve a vote in the UN General Assembly allows for some states to stay neutral on modus operandi in relation to the root cause of all atrocity crimes being committed in Ukraine, including the crime of aggression. But there is no place for neutrality in the case of the crime of aggression being committed against Ukraine because the greatest threat to international peace and security relentlessly continues. The decision to prosecute or not to prosecute military and political leaders of the aggressor state, particularly a permanent member of the UN Security Council, Russia, has a direct and lasting effect on the legitimacy of those persons having violated fundamental rules of international law. More importantly, this moment in history is crucially important for restoring trust in international law and international legal order that the UN Charter embodies.
The international community must take a bold step forward after the UN General Assembly condemned the unjustified aggression by Russia and numerous resolutions of international and regional organizations called for a comprehensive accountability system for international crimes being committed in Ukraine. “Comprehensive” does not mean leaving the most responsible for the crime of aggression against Ukraine immune from international law. The International Criminal Court undertook its responsibility within its jurisdictional parameters. The issue remains if the international community will undertake its fundamental responsibility to restore the legitimacy of international law by putting the issue of the tribunal before the UN General Assembly and broadly supporting it.
– Amnesty, immunities, and impunity gaps
The argument sometimes is made in favor of an internationalized national tribunal that Ukraine should maintain certain control over the tribunal for the crime of aggression, most probably for the possibility of granting an amnesty. If an international tribunal were to be established following the recommendation of the UN General Assembly, making trade-offs between peace and justice would be almost impossible as this would be an internationally supported and result-orientated independent institution with separate international legal personality with the fundamental objective of ensuring individual criminal responsibility of Russia’s political and military leadership for the crime of aggression against Ukraine.
Indeed, not that long ago amnesties were considered as contributing to promotion of transitional justice and reconciliation within societies that survived massive and systematic human rights violations. But as it was mentioned before, the supreme international crime of aggression is different from all the other international crimes because of its specific object: a sovereign and independent state, its profound context and political dimensions, a focus on leadership, and consequences for the international public order and all-encompassing implications for the victim state, its people and the entire international community. As with war crimes, this is not an international crime that can or should be swept aside by amnesties. Furthermore, on 24 February 2023, the UN General Assembly adopted a resolution on Ukraine’s peace formula with a strong justice and accountability dimension for the most serious international crimes committed on the territory of Ukraine. On 17 March 2023, the ICC issued arrest warrants against Putin and Belova. Because of these developments, the argument of maintenance of certain Ukrainian control over the tribunal can be considered as carrying more political than legal weight. Setting the precedent of amnesty for the core international crime of aggression could have devastating effects on the international public order and legacy of international law for the future.
The theoretical possibility of an amnesty does not close the gap of impunity if an internationalized national tribunal were to be established, as personal immunities would be afforded under international law to heads of states, prime ministers and ministers of foreign affairs. The idea behind personal immunities is to respect and protect the sovereignty of states from interference by other states and from being prosecuted before courts of third states. But following the ICJ judgement in the Arrest Warrant case, certain international tribunals having jurisdiction can override international immunities afforded by international law to heads of states and ministers of foreign affairs. Even though in that case the ICJ did not adjudicate the crime of aggression – the international crime that by definition encompasses political leadership of the aggressor state – the ICJ judgment is often rightfully cited in discussions among lawyers on the possible tribunal for the crime of aggression against Ukraine.
Even though the ICJ did not elaborate on what features a criminal tribunal has to possess to fit into the category of international tribunals capable of overriding international immunities, by giving examples the ICJ referred to criminal tribunals being established by the UN Security Council resolutions under the chapter VII of the UN Charter and the International Criminal Court being established by multilateral treaty, the Rome statute. Examples given by the ICJ enable one to conclude that the model of establishment and broad support afforded by states are crucial elements in holding a tribunal as having international legitimacy and being able to override immunities. Indeed, among the legal instruments for international criminal tribunals referenced by the ICJ were also the Charter of the International Military Tribunal of Nuremberg and the Charter of the International Military Tribunal of Tokyo, both of which had jurisdiction over crimes against peace.
For these reasons, if an internationalized national tribunal were to be established for the crime of aggression against Ukraine, international law will protect the aggressor state’s leaders more than it protects the victim state and its people. Considering ICC arrest warrants being issued for Putin and Belova for alleged war crimes and bearing in mind both the immunities defense and the leadership clause within the definition of the crime of aggression, taking Putin off the accountability table in the case of the crime of aggression against Ukraine as soon as the internationalized national tribunal is established would result in an unjustified downgrading of the crime of aggression in relation to other international crimes and would send a clear impunity signal to Putin and other dictators and power-hungry authoritarian leaders around the world in what they do on the international stage as well as at home.
* * *
Less can be more, but not when the crime of aggression as a manifest violation of the UN Charter is being committed against the independent and sovereign state of Ukraine pursuant to a Russian world ideology that does not exist beyond Putin’s mind. The international community must stand together with Ukraine to defend vital international values. Less will be more when all states having one vote and — devoted to international rule of law, peace and security — consolidate their efforts by voting in the UN General Assembly to mandate establishment of a full-fledged international tribunal for the crime of aggression against Ukraine. Such a global vote will not only have moral and political impact, but it will crucially influence the strength and legitimacy of the judicial institution that will be entrusted with the core responsibility to restore the legitimacy of international law and ensure legal accountability for the supreme crime of aggression against Ukraine. In contrast, an internationalized national court would never be credible if the international community seeks to send the clear deterrent message that individual criminal responsibility of those most responsible for the supreme crime of aggression against Ukraine as a manifest violation of the UN Charter is essentially inevitable.