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.

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Decades later, Ferencz’s prediction is proving all too true. Russia is waging an unlawful war of aggression against its sovereign neighbor Ukraine. And all the while Russia is using its permanent status on the Security Council and its right of veto to shield its bloody trail of war crimes, which include killing, raping, torturing civilians, abducting Ukrainian children, and looting.

Fighting Impunity

While Russia has successfully blocked any action against its aggression in the Security Council, the U.N. General Assembly resolutions, adopted with an overwhelming majority, have been instrumental in condemning Russia’s crimes. Most recently, in February, 141 countries supported the establishment of a just and lasting peace in Ukraine, in full conformity with the U.N. Charter. Operational Paragraph 9 of this resolution demands that Russia must be held accountable for most serious crimes committed in Ukraine.

Fighting impunity has become no less important than reinforcing Ukraine’s self-defense (in full accordance with Article 51 of the Charter). By now, criminal proceedings against hundreds of suspected perpetrators have been initiated in Ukraine and elsewhere. A Joint Investigation Team has been established as well as the International Center for Prosecution of the Crime of Aggression against Ukraine. The International Criminal Court (ICC) has opened an investigation into the situation in Ukraine on war crimes, crimes against humanity, and genocide, and issued arrest warrants for Russian President Vladimir Putin and the Russian Commissioner for Children’s Rights, Maria Lvova-Belova.

And yet, there is a missing link, a judicial loophole – impunity for the crime of aggression that unleashed all the other crimes and atrocities in Ukraine.

Creating an International Tribunal to Prosecute Russian Aggression

If the Security Council does not act, only a special international tribunal for the crime of aggression against Ukraine can overcome the immunity conundrum and prosecute Russia’s top leadership for the mother of all crimes – the crime of aggression. A tribunal based on an agreement between Ukraine and the U.N. Secretary General, endorsed by the U.N. General Assembly, would enjoy sufficient international legitimacy allowing to go after top Russian leaders, including the Troika (the head of State, head of government, and minister for foreign affairs). They are the real masterminds of the aggression. It has been done before via different paths, for example the Special Court for Sierra Leone and the Cambodia Tribunal.

In Legal and Political Terms, an International Tribunal is the Best Option for Accountability

Other alternatives face legal and political roadblocks. The idea of a so-called hybrid tribunal or “internationalized national tribunal” goes against the Ukrainian Constitution (Art 125) and therefore cannot be established, at least in the foreseeable future. It is likely that Russia will establish a replica tribunal in response to the hybrid model. And an attempt to argue that a similar tribunal would need to be established for Iraq, Libya, Afghanistan, and other countries cannot be ruled out despite the prohibition of retroactive application of criminal law. Still, Ukrainian leadership, civil society and victims of the aggression have all spoken in support for an international tribunal. In fact, the same has been heard from numerous Russian opposition figures.

Without full accountability assured by a proper tribunal, there will be no justice and therefore no chance for a just and lasting peace in Ukraine. Postponing justice to a later stage (for instance after the war or after the current Troika leaves office) would only encourage Russia to continue its aggression. It is paramount to anchor the inevitability of prosecution of the current Russian leadership as deep as possible in the international legal order and under international law. This would prevent the perpetrators of the crimes already committed from escaping justice, even if a new Russian leadership with vastly different political inclinations emerges, which is highly unlikely.

Resolve and Deterrence are the Best Remedy Against Russia’s Threats and Intimidation

Russia’s original goals – regime change in Ukraine and extermination of the Ukrainian nation – have not changed. If anything, Putin’s obsession with re-establishing Russia’s former imperial grandeur by bringing its “historic lands” together, and thereby consolidating his personal role in history, has grown even more profound. Either States work toward the establishment of a just and lasting peace in Ukraine or entertain a false hope – fed by the aggressor – that a deal with Putin is possible. The latter option is futile in itself as it would resemble offering Adolf Hitler a face-saving opportunity and negotiations during WWII.

The fear that Moscow can “retaliate” with the usual bunch of lies and propaganda does not overweigh the moral obligation to do what is right for global peace and security, if not for the sake of the millions of victims of the Russian aggression.

The arrest warrants issued by the ICC did not produce any escalation that some had feared. Instead, Russia has attempted to undermine the ICC and its warrants, including by inviting Lvova-Belova to participate in the Security Council’s informal meeting in early April. Nor is there anything new about Russia’s nuclear sabre-rattling, as the Kremlin has used nuclear blackmail with the intention to paralyze the willpower of those helping Ukraine since the full-scale invasion started. In the end, nuclear threats have very little to do with the establishment or non-establishment of a proper tribunal. Even entertaining the idea that the leadership of nuclear States cannot be brought to justice inherently risks trashing the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and undermines non-proliferation. States should not wait for another world war to happen to discredit aggression.

The claim of polarization and selectivity seems unfair, as the whole aim of the undertaking is universal – to ensure justice and delegitimize aggression as a tool of statecraft, as it was after WWII with the Nuremberg trials. The mere establishment of the tribunal itself would be a powerful deterrent against aggression across the globe as it would send a clear political message to potential future aggressors. The same deterrence is badly needed as a credible remedy against further escalation of the current conflict as what is happening in Ukraine fits into a wider behavioural pattern of Russian invasions (2008 Georgia, 2014 Crimea, 2022 Ukraine).

During the last half-century, there has never been a better opportunity to fight back the resurrection of aggression in international affairs. The lasting peace after WWII was not “just” for Estonia and for several other countries because for us, a decades-long brutal Soviet occupation, deportations, colonialization, and russification followed. Today’s aggression is a direct result of atrocity crimes committed by the Soviet Union before, during and after WWII that went unpunished. There was never a proper tribunal to prosecute Soviet totalitarian crimes, and impunity in the past has led to the crimes of today. This vicious circle needs to end.

Seeking the Political Will to Establish a Tribunal

Some claim that States should not move forward because it will be difficult to gather enough votes at the General Assembly. But this is mere speculation without a meaningful attempt to prove the contrary. Meanwhile, the required vote count is a two-thirds majority of the member States present and voting (which means that at a practical level, only “yes” and “no” votes actually matter). In private conversations and during our briefings for the wider U.N. membership, there has been no straightforward rejection of the idea of an international Tribunal. To the contrary, when it comes to accountability to preserve the current legal order with the U.N. and Charter at its core, countries have been rather united and supportive.

The initial reluctance to deal with impunity in Ukraine seems to be receding as our hesitation would only fuel the ongoing aggression. Ukrainians have been paying an extremely high price with their lives for our hesitation already. If States want to achieve a just and lasting peace in Ukraine, and delegitimize aggression again, we should shake off our fears and find the political will to collectively reinforce the legacy of Nuremberg through action by the General Assembly. It is time to move past talk of “support for accountability.” The least we can do when the Core Group for Accountability meets in Tallinn on May 12, is to have an open and serious discussion about our common path forward without hiding our fears and hesitation behind legal arguments. In the end, seeking justice and accountability is a question of political will.

IMAGE: Screens display the vote count during the Eleventh Emergency Special Session of the United Nations General Assembly on Ukraine, at U.N. headquarters in New York City on Feb. 23, 2023. (Photo by Angela Weiss / AFP via Getty Images)

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Speaking yesterday in The Hague, Ukrainian President Volodymyr Zelenskyy called for accountability for the crime of aggression. After calling for a minute of silence “in memory of all those whose lives were taken by Russia, by its terror,” he proclaimed, “Only one Russian crime led to all of these crimes. This is a crime of aggression. The start of evil, the primary crime. There should be responsibility for this crime! And it can only be enforced by the Tribunal.” That same day, Zelenskyy declared that Ukraine opposes “hybrid” formats for such a court: “We will work without any hybrid formats, we will work on a specific tribunal to ensure accountability for their crimes, murders, and torture. We understand who gave the orders. These people must not be untouchable. This is very important for us, this is one of the fundamental issues.”

As previous entries in this series have explained at some length, there is currently no international court with jurisdiction to try the crime of aggression in Ukraine. While there is widespread support for closing this accountability gap, there is significant disagreement as to how to do that. Zelenskyy’s announcement yesterday places him at odds with the Biden administration, which has endorsed a court “rooted in Ukraine’s judicial system, but that also includes international elements”—precisely the kind of “hybrid” court Zelenskyy has now outright rejected.  Among other shortcomings, such a hybrid approach would not be able to indict Putin as long as he remains in office.  That makes the approach a non-starter for Ukrainians.

Zelenskyy instead supports creating a court pursuant to a United Nations General Assembly resolution requesting the Secretary-General negotiate an agreement with the government of Ukraine to create a Special Tribunal, an approach that also has supporters in the U.S. Congress. But some have asked whether that approach is possible—can an international tribunal to try the crime of aggression be established by the U.N. without the involvement of the Security Council? As this article will explain, there is ample reason to conclude that it can.

The U.N. Charter

Let’s begin with the U.N. Charter. Both the General Assembly and the Security Council are responsible for the core mission of the Charter – that is, in the maintenance of international peace and security. The Charter makes clear that, under Chapter VII of the Charter, the Security Council has exclusive authority to authorize military interventions. It also has exclusive authority, under Article 48, to authorize enforcement measures and to compel members of the U.N. to take actions that it determines are required for the maintenance of international peace and security. But this leaves a significant role for the General Assembly.

Article 1 of the Charter sets out the purposes of the U.N., including, first:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

Article 2(2), moreover, establishes an obligation for all Member States, as one of the principles of the U.N., to “fulfill in good faith the obligations assumed by them in accordance with the present Charter.”

The purpose of maintaining international peace and security appears throughout the Charter and influences the interpretation of other articles. For example, Article 2 stipulates principles by which the Organization and member states must abide in pursuit of the purpose of the U.N., most notably including the prohibition on the threat of or use of force. Many of the powers available to the General Assembly and the Security Council are premised on the organs’ duty to prevent or respond to breaches or threats to international peace and security. It follows from the terms of the Charter and the customary law of treaties that member states must refrain from acts that frustrate the Charter’s raison d’etre, namely, the maintenance of international peace and security.

The crime of aggression, “the supreme international crime,” is in the postwar era defined in reference to the U.N. Charter. Article 2(4) provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Hence there is little question that the creation of a special tribunal to try the crime of aggression – to hold those responsible for the violation of this foundational principle of the Charter – is critical to upholding one of the core purposes of the U.N., as well as the “object and purpose” of the Charter, as understood under the Vienna Convention on the Law of Treaties.

Article 10 empowers the General Assembly to “discuss any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present charter” and to “make recommendations” to either the General Assembly or the Security Council on such matters. This article grants the General Assembly the authority to consider what measures may be taken to counter a threat to international peace and security, particularly in instances where the Security Council fails to act. Indeed, Article 10 was widely considered the primary basis in the creation of the Uniting for Peace Resolution, which provides that “if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures.” Article 10 was also invoked in the recent Liechtenstein veto reform initiative, which provides that any time a permanent member of the Security Council vetoes a resolution, that resolution will be automatically referred to the General Assembly within 10 working days so that the Assembly can hold a debate on the situation.

Article 11 empowers the General Assembly to consider, discuss, and make recommendations with regard to both general principles of cooperation in the maintenance of international peace and security, or any questions relating to the maintenance of international peace and security before it. Subsection (2) provides that “[a]ny such question on which action is necessary” must be referred to the Security Council. The International Court of Justice (ICJ) in the Certain Expenses case interpreted this provision to mean only that General Assembly may not undertake coercive or enforcement actions. It is widely agreed, for example, that the General Assembly is within its power to call upon members to impose sanctions as a collective measure against offending states. Indeed, in the Certain Expenses case, the ICJ also upheld the competence of the General Assembly under this article to establish a voluntary peacekeeping force, though it was careful to note that only the Security Council may “order coercive action.”

Article 24 indicates that Member States “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” In using the word “primary,” Article 24 of the U.N. Charter implicitly acknowledges that the General Assembly is a residual insurer of the object and purpose of the Charter. That interpretation was confirmed by the ICJ in the Certain Expenses case, in which the Court held that the Security Council maintains primary—but not exclusive—responsibility over peace and security, particularly in light of its Chapter VII powers, because “[t]he Charter makes it abundantly clear … that the General Assembly is also to be concerned with international peace and security.” The ICJ reaffirmed the Security Council’s primary, but not exclusive, responsibility for the maintenance of international peace and security in its Wall Advisory Opinion.

Last, while the General Assembly resolution would “request” the Secretary-General negotiate an agreement with the government of Ukraine to create a Special Tribunal for the Crime of Aggression, such requests are understood to create an obligation on the Secretary-General to act. Under Article 98 of the U.N. Charter, the Secretary-General “shall perform such other functions as are entrusted to him” by the General Assembly.

Historical Practice

Turning next to historical practice: While there is no perfect analog, there is substantial practice that suggests that a Special Tribunal to try the Crime of Aggression can be created through an agreement between the U.N. and Ukraine, pursuant to a resolution of the General Assembly. Here we discuss several examples of prior General Assembly action that offer insight into the organ’s authority as it has been exercised to date. It is important to note at the outset that such a tribunal would not be able to order coercive measures on any non-consenting state – for example, it could not compel them to carry out arrests of those it indicts. It could, however, accept the voluntary assistance of member states in carrying out its mission.

United Nations Administrative Tribunal & Internal Justice System (1949)

The United Nations Administrative Tribunal (UNAT) was established by the General Assembly through passage of a Resolution in 1949. The tribunal was an independent organ that could hear and judge internal administrative matters, such as employment contract disputes. Though the Tribunal no longer operates, its successor does: In a series of resolutions beginning in 2007, the General Assembly replaced the Tribunal with a two-tier International Justice System. That system “provides an internal system of justice for all UN system staff” and has the power to resolve disputes both formally and informally.

In a 1954 Advisory Opinion, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, the ICJ considered the legality of the Tribunal, which it described as “an independent and truly judicial body pronouncing judgments without appeal within the limited field of its functions.” As it observed, “[t]he legal power of the General Assembly to establish a tribunal competent to render judgements binding on the United Nations has been challenged. Accordingly, it is necessary to consider whether the General Assembly has been given this power by the Charter.”

The Court began by observing that there was “no express provision for the establishment of judicial bodies or organs and no indication to the contrary.” But that silence was not the end of the story. The Court noted that it had earlier determined that, “[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” The Court went on to note that, among other things, the Secretary-General is “the chief administrative officer of the Organization.” It was “inevitable,” the Court noted, “that there would be disputes between the Organization and staff members as to their rights and duties.” And while the Charter does not authorize any of the U.N. organs to adjudicate these disputes, it would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.” It thus concluded that the power to establish a tribunal that could resolve such disputes “arises by necessary intendment out of the Charter.”

Special Court for Sierra Leone (2000)

The Special Court for Sierra Leone (SCSL) was created by Secretary-General based on a request by Security Council acting under Chapter VI, not Chapter VII. In Resolution 1315, the Security Council requested that the Secretary-General negotiate with the Government of Sierra Leone to establish an independent special court. Because the Security Council did not act under Chapter VII (and because the Court was created by agreement between the U.N. and Sierra Leone, and not other states), the SCSL was unable to require non-consenting states to execute its arrest warrants. Nonetheless, the tribunal was properly characterized as an “international” court and thus empowered to set aside personal immunities. Indeed, the SCSL Appeals Chamber specifically found that a sitting head of state of a foreign state that was not party to the agreement between Sierra Leone and the U.N. – Liberian President Charles Taylor – was subject to prosecution in the court for crimes committed in Sierra Leone and could not rely on personal immunities to avoid indictment. In making this finding, the Appeals Chamber emphasized that when the U.N. Security Council called for the establishment of the court, it was acting on behalf of all U.N. Members and, thus, the agreement giving rise to the court was “an agreement between all members of the UN and Sierra Leone”—making it “truly international.”

This precedent offers at least two important lessons: First, Chapter VII authority is not essential to creation of an international criminal tribunal, as the Security Council acted under Chapter VI in creating the SCSL (and thus was not exercising coercive authority). Second, a tribunal created through an agreement negotiated by the Secretary-General on behalf of the United Nations and a member state can constitute an “international tribunal” for purposes of personal immunities with regard to the head of state of a non-consenting state. In the case of the SCSL, that negotiation took place pursuant to a request in a resolution of the Security Council acting under Chapter VI; a resolution of the General Assembly would arguably have at least as strong a claim to represent the membership of the U.N.

Extraordinary Chambers in the Courts of Cambodia (2003)

The General Assembly gave rise to the Extraordinary Chambers in the Courts of Cambodia (ECCC). Cambodia approached the United Nations, requesting “assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge.” General Assembly Resolution 52/135 then requested that the Secretary-General establish a Group of Experts for Cambodia, which recommended that “the United Nations should establish an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide . . . that the Security Council establish this tribunal under Chapter VI or VII of the Charter of the United Nations, or, should it not do so, that the General Assembly establish it.” Cambodia instead decided on an alternative approach—the creation of a tribunal within the Cambodian legal system. In Assembly Resolution 57/228, the General Assembly requested the Secretary-General negotiate with Cambodia an agreement creating the Extraordinary Chambers and regulating the cooperation between the U.N. and Cambodia. While the ECCC is located within the Cambodian court system, it provides clear evidence that the General Assembly can contribute to the establishment of a treaty-based tribunal.

International, Impartial and Independent Mechanism (Syria) (2017)

In 2016, the Assembly responded to a Security Council deadlock (caused by Russia’s veto) in the face of evidence of Syrian atrocities through the adoption of Resolution 71/248, establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (the “IIIM”).

During debate and in a note-verbale, dated Feb. 8, 2017, Russia complained that “the General Assembly acted ultra vires—going beyond its powers as specified in . . . the Charter of the United Nations.” It claimed that the mechanism vested powers that were prosecutorial in nature and that “prosecutions, criminal investigations and support of criminal investigations are not among the functions of the General Assembly. It cannot create an organ that has more powers than the Assembly itself.” General Assembly debate and voting records show that UN members were not persuaded by this argument. Supporting members reaffirmed that the purpose of the mechanism (which was, unlike the ECCC and SCSL, created over the territorial state’s objection), was not to prosecute, but to “facilitate and expedite criminal proceedings, without prejudice to where and when such proceedings will take place.” Underpinning discussions about the mechanism was Member States’ explicit sense of urgency for the General Assembly to take action in response to the gridlock in the Security Council, which was blocking the Council from fulfilling its mandate to maintain international peace and security. The creation of the IIIM was viewed as a key step to preserve evidence and signal Members’ non-tolerance of impunity, which may account for the speed with which the Resolution advanced through the drafting and consultation process and went into operation.

The Jurisdiction of a Special Tribunal for the Crime of Aggression

The Charter, together with the historical examples, demonstrate that General Assembly has the authority to request that the Secretary-General enter an agreement with Ukraine to establish a Special Tribunal for the Crime of Aggression. But there is a further question as to the source of the court’s jurisdiction, given the General Assembly’s lack of enforcement powers.

The new Special Tribunal could be conferred international criminal jurisdiction over the crime of aggression in two ways. First, as with the courts formed for Sierra Leone and Cambodia (and unlike the IIIM), where the territorial state consents through entering into an international agreement with the United Nations, it vests the tribunal with a jurisdictional title. Second, because the crime of aggression is rooted in customary international law and the prohibition of aggression is a jus cogens norm, there is a strong case that there is an existing international jurisdiction that need only be activated. This international criminal jurisdiction—“rooted in the international community as a whole”—can be activated when an international tribunal acquires it through a specific instrument, like a negotiated agreement between the U.N. and a member State. Under either approach cases, the U.N. General Assembly would not vest the special tribunal with jurisdiction, “it would,” as an earlier Just security article explained, “only help activat[e] the proper international exercise of an already existing jurisdiction.”

Both the SCSL and the ECCC took the first approach: the consent of the territorial state formed the basis for the court’s jurisdiction. The Security Council acting under Chapter VI and the General Assembly, respectively, acted to activate the exercise of existing jurisdiction. The same approach could be utilized by the Special Tribunal. Ukraine is, after all, one of the territorial States of the crime as the victim of Russia’s aggression and possesses a jurisdiction title that it can confer to an international tribunal for the purpose of adjudication.

The capacity of such a Tribunal is not limited to the capacity of the consenting state, here Ukraine, to try the crime in its own domestic courts. An international Tribunal created by a negotiated agreement between the Secretary-General and a consenting state to try a crime under international law creates a court with an international character. That, in turn, allows the court to set aside personal immunities that would restrict prosecutions in foreign domestic courts, including the courts of the consenting state. This was true of the SCSL, which could indict a sitting foreign head of state even though Sierra Leone’s own domestic courts would have been barred from acting by personal immunity. This same principle animates the ICC. The ICC is not limited by personal immunities and thus exercises greater authority than is possessed by the individual states whose consent is the basis for the court’s jurisdiction. In a recent Just Security article, Leila Sadat defends what she terms this “collective conferral” authority. It is precisely this authority that allows the ICC to indict Putin – the head of state of a non-state party who would otherwise be immune from prosecution.

Conclusion

Viewing the law and history together paint a clear picture: First, the Charter’s central purpose is the maintenance of international peace and security, and, where the Security Council is unable to act, the General Assembly possesses subsidiary powers to uphold this core purpose. Second, the General Assembly is capable of passing a Resolution that leads to the creation of a body with a decidedly judicial character. Third, the U.N. General Assembly has the authority to request the Secretary-General act to establish a Special Tribunal that would allow the exercise of an existing jurisdiction—and the Secretary General would be obligated to take steps to carry out that request. That court, in turn, would have an international character and thus would not be required to observe personal immunities for an international crime even though the consenting state’s own courts would be.

In sum, it is clear that General Assembly is empowered to request that the Secretary-General conclude a treaty with Ukraine to establish a Special Tribunal to try the crime of aggression committed in and against Ukraine.

IMAGE: United Nations Secretary General Antonio Guterres speaks during the 77th session of the United Nations General Assembly (UNGA) at the U.N. headquarters on September 20, 2022 in New York City. Photo by Anna Moneymaker/Getty Images)

The post The Legal Authority to Create a Special Tribunal to Try the Crime of Aggression Upon the Request of the UN General Assembly appeared first on Just Security.

Those proposals have led to a lot of imprecise talk. To be clear: an international tribunal is one based directly on international law, established through the United Nations Security Council (which created the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the ICTY and ICTR respectively), or created by bilateral agreement between the United Nations and a country (for instance the Special Court for Sierra Leone). Although the latter had hybrid features, its legal basis made it an international tribunal.

There may also be a hybrid tribunal formed through national law within a country’s national system, as was the Extraordinary Chambers in the Courts of Cambodia. This type of tribunal is better called a national tribunal with certain international features.

Last month, the United States announced its support for an “internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine.” But the U.S. proposal – and efforts to defend it – fail to address some key concerns: (1) the issue of immunities; (2) the weak precedential weight of a domestic tribunal; and (3) the issue of Constitutionality under Ukrainian law. Ultimately, an international tribunal is the better approach given the gravity of the crime of aggression and the future development of international criminal law.

An International Tribunal is Imperative

As I and other colleagues have previously explained, the form a tribunal takes – whether international or national – is quite significant when it comes to piercing the personal immunities of heads of States, heads of government, and ministers for foreign affairs (see this post by Astrid Reisinger Coracini and myself, and this post). In the former case (an international tribunal formed through the U.N. system) they would not apply; but in the case of a national institution, they would shield such a defendant from prosecution.

This is a significant reason why President Zelenskyy has endorsed the creation of an international tribunal on the crime of aggression – the Special Tribunal on the Crime of Aggression (STCoA) – established through the United Nations. In fact, Zelenskyy’s Office has publicly stated that the idea of creating a “hybrid tribunal” as an instrument for investigating the crime of aggression committed by the Russian Federation is “unacceptable.”  For a leadership crime (as the crime of aggression is, see Rome Statute Art. 8bis) a prosecutor would ideally investigate and charge all those leaders who participated in the decision to initiate an act of aggression, beginning with the top political leaders. In the case of Russia’s war on Ukraine President Putin is the tip of the Kremlin’s spear.

Along with personal immunities, a court within the Ukrainian national system also faces serious Ukrainian constitutional impediments (see this piece by Oona Hathaway and Alexander Komarov).

Moreover, from the perspective of the future of the international legal order, it is of cardinal importance that faced with Russia’s fundamental assault on the prohibition of the use of force, the international community as a whole puts thegreatest possible weight behind the judicial precedent against aggression. That would not happen if a special tribunal were essentially national in character.

As I previously wrote, the warrants of a tribunal formed within a national system and judgments of such a tribunal will never be seen to carry nearly the weight of those of an international institution applying international law and presided over by international judges. The rulings of Ukrainian judges could be dismissed as lacking in impartiality or – even if impeccably well-reasoned – lacking the appearance of impartiality. These difficulties would only be exacerbated if trials are conducted in absentia, as Ukrainian law allows (see the Criminal Procedural Code of Ukraine, art. 7.2).

The U.S. Proposal of a National Court

Recently, the dialog seems to have shifted from calling for a “hybrid tribunal” (see the U.K.’s earlier announcement), to an “internationalized” national court. This is evident in both the U.S. proposal pronounced by Ambassador Beth Van Schaack and a recent post by Michael Scharf, Paul Williams, Milena Sterio and Yvonne Dutton of the Public International Law and Policy Group, (PILPG).

On Mar. 27, Ambassador Van Schaack announced U.S. support for an “internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine.”

Admittedly, having the U.S. agree that “there are compelling arguments” for why the crime of aggression must be prosecuted (see Van Schaack’s remarks), is a step in the right direction, but, regrettably that is the only step.

Unfortunately, what the United States endorses is a Ukrainian court “rooted in Ukraine’s judicial system.”  And while Ambassador Van Schaack did mention “international elements” in terms of “substantive law, personnel, information sources, and structure” of the proposed tribunal, the U.S. approach failed to address: (1) the issue of immunities; (2) the weak precedential weight of a domestic tribunal; and (3) the issue of Constitutionality. (See Rebecca Hamilton’s critiqueof the U.S. plan).

PILPG’s Defense of a National Approach

PILPG’s recent post applaud the U.S. proposal, suggesting that the impediments under the Ukraine’s Constitution are surmountable, for instance, through substituting “international advisors” for international judges. But this is an even weaker international features of the proposed national tribunal than what the United States called for, as it would basically create an entirely domestic court.

Here is the Catch-22: a significantly new tribunal within the Ukrainian system will run into Constitutionality impediments. In flawed logic, the PILPG authors suggest that because some kind of hybridized or national tribunal was created within the national systems in Iraq, Kosovo, Serbia and Bosnia, there is no impediment to creating a similar tribunal within the Ukrainian system. Whatever the Constitutions of Iraq, Kosovo, Serbia or Bosnia may or may not have permitted is quite irrelevant – the issue here concerns Ukraine’s Constitution (which prohibits “special” or “extraordinary” Chambers being created within the Ukrainian court system as well as the use of non-Ukrainian judges).

As for immunities, PILPG attempts to side-step the issue. Its post admits that personal immunities do attach, but suggests that prosecutions of those a level or two down from the top level leaders are possible. That is true in terms of the leadership element of the crime of aggression. But for a crime that is necessarily committed with participation at the top leadership level, it poses a fundamental problem of legitimacy that cannot, and should not, be so easily dismissed. PILPG’s approach suggests that one should effectively exonerate, for instance, the commander-in-chief who made the decision to launch an illegal war so their subordinates can take the blame for that choice. Moreover, the Ukrainian Government has specifically rejected an approach that would entail such immunities.

Equally untested and potentially legally unsound is another PILPG workaround to the immunity problem. It suggests to first create a tribunal within the Ukrainian system, and then later obtain a United Nations General Assembly (UNGA) endorsement once the court is established. We have absolutely no idea if that would work. While UNGA endorsement would mean the tribunal would be endorsed by the international community as a whole, the tribunal would not be createdunder international law. Both are required to safely avoid personal immunities from attaching. (See Reisinger Coracini and Trahan).

Finally, in advocating for the use of international advisors to circumvent the Constitutionality impediment, PILPG raises the model of the Iraqi High Tribunal. But instead of supporting PILPG’s position, that tribunal provides a clear warning lesson why the international community should be wary of domestic courts with a bit of hybridity. Despite international definitions of the crimes, international funding, international assistance by the United States Regime Crimes Liaison Office in Baghdad, and international advisers, the Iraqi High Tribunal, which was an Iraqi court created under Iraqi law, was never seen as legitimate. The bench was composed of Shiite and Kurdish judges trying their deposed Sunni leader, Saddam Hussein. Executions followed in quick order despite a panoply of fair trial violations at trial and a complete sham of an appeals process. See Trahan here (fair trial violations during the IHT’s Dujail trial); see also here (fair trial violations during the IHT’s Anfal trial).

Moreover, the PILPG post has done no analysis of how well a domestic Ukrainian court with international advisers is likely to work and what kind of precedent (or lack of precedent) it is likely to set. Those are questions worth unpacking. Ignoring them risks a similarly weak tribunal for the crime of aggression in Ukraine.

Why Debate Weak Tribunal Proposals?

All of this begs the question of why we are even debating a national court within the Ukrainian system with some international elements that could not prosecute the very top leaders who gave the authorization to commit the crime of aggression and the judgments of which would fail to carry the badly needed authoritative weight of an international tribunal established by a treaty between the U.N. and Ukraine.

On the eve of the 20th anniversary of the invasion of Iraq, one might wonder whether something else is occurring when the U.K. (which earlier proposed a hybrid tribunal within the Ukrainian system) and now the United States (with Ambassador Van Schaak’s approach) propose a weak tribunal to prosecute the crime of aggression. How convenient it is to call for justice, but self-servingly create a weak precedent that avoids setting international precedent for the future.

Top Leaders Should Not Escape the Rule of Law While in Office

Some have asked – in effect: why worry so much about head of State immunity, given Putin is likely to be tried only once out of power? (See Kevin Jon Heller’s post).

When it comes to doing the right thing and pursuing the rule of law, the form a tribunal takes should not dictate its ability to function: the very leaders that initiated the crime must not be automatically exempted simply by endorsing a weak tribunal model where those leaders would have personal immunity.

It is indeed unlikely that Putin will appear in The Hague while he is still in power, but he could be indicted for the crime of aggression (which would not be possible at an internationalized tribunal established under national law). An international court issuing charges for the crime of aggression would send a powerful deterrent message to world leaders about the unacceptability of brazenly invading a neighboring State. To have the highest Russian leaders indicted for the crime of aggression is exactly the deterrent message that needs to be sent (not to mention, the cost of establishing the STCoA would be a mere drop in the bucket compared, for example, to the cost of coming to the military assistance of yet another victim state).

Conversely, to establish a tribunal within the Ukrainian system (as the U.K. and U.S. models propose) that is unable to even proceed against the entire top Russian leadership sends exactly the wrong message that leaders are above the rule of law while they remain in power. And, even then, after they have left power, they would not need to face justice for the crime of aggression at the international level.

After we have made so much headway in prosecuting genocide, war crimes and crimes against humanity at the international level, we must get serious also about prosecuting the crime of aggression as a crime under international law. All of the harm that has been inflicted upon Ukraine through the 2022 invasion (and 2014 before that) shows why it is time to stop putting the crime of aggression on a lesser tier than the ICC’s other crimes.

Being on the Right Side of History 

States that wish to support both Ukraine and the international legal order need to be on the right side of history – as so many were in pressing for a broad ICC jurisdictional regime over the crime in both negotiations in Kampala and at the 2017 ASP session where the ICC’s jurisdiction over the crime was activated (for the negotiations, see here and here).

They need to unite behind President Zelenskyy’s call for a STCoA to be created through UNGA. (See also FAQ). This is acknowledged to be the most credible route to truly enforce the foundational provision against aggressive use of force found in Article 2(4) of the U.N. Charter and deter future uses of aggressive force. (See Hans Corell’s post on steps for creating the tribunal. Contrary to some suggestions (see Heller), there is nothing that says the STCoA must be created with “overwhelming UNGA endorsement” to avoid immunities; if the General Assembly vote passes, the General Assembly vote passes).

Yes, an ad hoc approach is imperfect, and that is why, as a second step, states will need to revise the Kampala amendment’s jurisdictional regime and broaden the ICC’s jurisdiction over the crime so that it may investigate and prosecute the crime in future. (See these statements by the Global Institute for the Prevention of Aggression, GIPA, and the Parliamentarians for Global Action, PGA).

States from all regions of the globe – particularly ones that have suffered historically from colonialism, imperialism, and annexation need to come together to ensure application of the rule of law and firmly establish the unacceptability of brazenly invading a neighboring State – but they need to do so through a legitimate, U.N.-backed tribunal. States should not sit back and make the mistake of thinking these issues are only ones for NATO member State or European nations, or in being complacent setting weak precedent. No State, from any region, including island nations, is safe if blatant aggression is permitted to go unchecked. Unequivocal precedent must be set, both through the creation of the STCoA and eventual amendment of the ICC’s Rome Statute to broaden the Court’s jurisdiction over the crime of aggression. Global stability and the rule of law demands no less.

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

The post Don’t be Fooled By U.S. Smoke and Mirrors on the Crime of Aggression appeared first on Just Security.

Last July, the Public International Law and Policy Group (PILPG) made one such proposal in the form of model legislation to establish a Ukraine High Court for War Crimes, which we discussed in Opinio Juris. The model legislation – which PILPG developed in partnership with Ukrainian and international experts, including the law firm Weil, Gotshal & Manges – would create an “internationalized” domestic court modelled on the existing High Anti-Corruption Court of Ukraine to prosecute high-level cases of war crimes, crimes against humanity, and aggression. 

For over a year, the United States appeared skeptical about efforts to address the crime of aggression. But on Mar. 27, U.S. Ambassador for Global Criminal Justice, Beth Van Schaack, announced that the United States supports the creation of an internationalized domestic court in Ukraine to prosecute the Russian crime of aggression. The U.S. proposal hues closely to the model set forth last summer by PILPG and its partners.

Following Ambassador Van Schaack’s announcement, Professor Rebecca Hamilton wrote an essay critiquing the U.S. plan in Just Security. The essay described two downsides to an internationalized domestic tribunal, which we would like to specifically address here.

The Ukrainian Constitution is Not an Insurmountable Obstacle

First, Article 125 of the Ukraine Constitution prohibits the establishment of “special and extraordinary tribunals.” Ukraine judicial experts have explained to us that this provision is intended to prohibit temporary courts created by executive authority.  The prohibition would not likely apply to an internationalized domestic court like the United States is suggesting if created through the normal legislative processes. In 2018, Ukraine established the High Anti-Corruption Court, which includes international advisers of the type envisioned by internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine. Ukraine could presumably use the same model and legal pathway to create an internationalized tribunal without running afoul of its Constitution. 

While Ukraine is fairly unique in its prohibition of special and extraordinary tribunals, it is worth noting there are ample comparative state practice precedents for creating internationalized domestic courts throughout the globe, including the Regulation 64 Panels of Kosovo, the War Crimes Chamber of the Court of Bosnia and Herzegovina, the Special Department for Adjudicating Trials Against Perpetrators of War Crimes of the Belgrade District Court, and the Iraqi High Court, whose prosecutors were assisted by U.S. Department of Justice attorneys, whose defense counsel were foreign attorneys, and whose judges were assisted by foreign judges associated with the International Bar Association.

Head of State Immunity Would Not Block All Prosecutions for Those Responsible for the Crime of Aggression

Second, there is concern that, unlike a hybrid tribunal created through an agreement between Ukraine and the United Nations General Assembly, an internationalized domestic tribunal would not be able to prosecute the two Russian leaders who may be most responsible for the Russian Aggression – President Vladimir Putin and Foreign Minister Sergei Lavrov – under existing International Court of Justice (ICJ) precedent regarding domestic prosecution of heads of state and foreign affairs ministers. But in announcing the new U.S. policy, Ambassador Van Schaack pointed out that an internationalized domestic court could nevertheless prosecute others responsible for the planning and execution of the crime of aggression against Ukraine. Such persons might include certain members of the Russian parliament,  the Minister of Defense, and the Chiefs of the General Staff. Even if Putin and Lavrov are out of reach, an indictment of such persons for the crime of aggression could be an important symbolic and strategic development. 

Moreover, head of state immunity is a complex legal doctrine and its contours have never been fully tested against a sitting head of state.  In the Belgium Arrest Warrant case, the ICJ stated that head of state immunity does not apply to proceedings before international courts.  What makes a court international enough for this purpose remains an open question. While Ambassador Van Schaack said the United States did not favor an effort to obtain an initial authorization from the United Nations General Assembly because of difficulties in obtaining a sufficiently large majority vote, in response to evolving events on the ground it is plausible that U.N. politics will make it possible to get a General Assembly endorsement after the Court is established, which along with imbedded international advisers might render the institution international enough to pierce head of state immunity under the precedent of the Special Court for Sierra Leone.

In addition, if Putin and Lavrov one day relinquish their positions, they could potentially be tried by an internationalized domestic court since their personal immunity (ratione personae) ends when they leave office, and functional immunity (ratione materiae) may not apply to the crime of aggression. In 1999, the U.K. House of Lords ruled that former Chilian President Augusto Pinochet was not immune from prosecution for the international crime of torture. With no precedent on the application of head of state immunity to former leaders accused of the crime of aggression, it is possible that a former President Putin or a former Foreign Minister Lavrov could be prosecuted in an internationalized domestic court once out of office.  

Ambassador Van Schaak’s announcement was a game changer. As documented in Michael Scharf’s article in the Harvard Journal of International Law, since the conclusion of the Nuremberg trials, the United States had opposed the creation of an international court with jurisdiction over the crime of aggression as well as the use of universal jurisdiction to prosecute the crime in domestic courts. Whatever shape an aggression tribunal ultimately takes, we applaud the new U.S. position which is likely to generate momentum for the prosecution of Russia’s crime of aggression against Ukraine. 

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

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This clear statement of U.S. support for a prosecution of aggression merits a moment of celebration, even though there are plenty of caveats that come with that laudatory response. When Ryan Goodman and I first published a model indictment of Putin for the crime of aggression this time last year, the possibility of the United States doing anything but stonewalling an aggression prosecution seemed remote. The through line of the U.S. government’s approach to this issue has long been one of skepticism, with successive administrations seeking to retain judgment regarding aggression within the province of the UN Security Council. Few who have been involved in U.S. negotiations on the crime of aggression over the years would have forecast Monday’s statement. Credit is due to Ambassador Van Schaack, her team, and other supporters of accountability for aggression within the Biden administration for what would undoubtedly have been many rounds of interagency negotiations to get to this point.

Here though, come the caveats. Ambassador Van Schaack’s statement went on to characterize the tribunal the United States supports as being “an internationalized national court” (emphasis added). She described it as a tribunal “rooted in Ukraine’s judicial system, but that also includes international elements.” There is a lot of room for interpretation within that description, though it seems to echo the proposal supported by the U.K earlier this year for a “hybrid” tribunal. 

Just Security has given comprehensive coverage to the various models that have been proposed for an aggression tribunal. Many experts believe that an agreement between Ukraine and the United Nations, on recommendation of the UN General Assembly, would give an aggression tribunal an optimal legal foundation. Others in these pages have advocated for an amendment to the International Criminal Court’s statute. There are yet other options akin to the Special Court for Sierra Leone, that while sometimes described as “hybrid” would be significantly more international than the model the United States is apparently now supporting. 

Meanwhile, the downsides of anything short of a truly international tribunal are significant. A tribunal that is a national court of Ukraine, no matter how international its “elements” may be, poses at least two challenges that could be fatal to the endeavor. First, the creation of such a hybrid court is likely unconstitutional under Ukrainian law. Article 125 of the Ukrainian Constitution contains an outright prohibition on “special and extraordinary tribunals.” An article by Alexander Komarov and Oona Hathaway provides the details, but in sum, anything less than an international tribunal is likely to pose a constitutional challenge. Could a sufficiently motivated Ukrainian government find a way to creatively lawyer around this hurdle? Maybe. But as Komarov and Hathaway explain, the Constitution bans constitutional amendments under conditions of martial law or a state of emergency. Even if some creative lawyering approach somehow succeeded and on a workable timeframe, it could undermine the commitment to the rule of law that undergirds the legitimacy of any such project. 

Second, a hybrid tribunal will run directly into the head of state immunity problems that have been an integral part of all proposed tribunal discussions to date. Of course, head of state immunity would likely need to be litigated in any forum that sought to prosecute Putin (or his Foreign or Defense Ministers, should they stand accused), and some question whether even a fully international tribunal could overcome immunity ratione personae (former State Department Legal Adviser Harold Hongju Koh noted in the New York Times on Tuesday that “even under a purely international model, the issue of overcoming immunity for sitting heads of state is far from assured”). However, there are far more compelling arguments that an international tribunal would pierce the veil on head of state immunity (see Jennifer Trahan’s commentary on this for a full analysis). In other words, for as long as Putin remains in office, only an international tribunal, and not the kind of tribunal that the U.S. supports, has a shot at prosecuting him. And Putin is, of course, the most responsible for the very crime any such tribunal is supposed to prosecute.

The most charitable account of the U.S. and U.K. stance is to say that even an international tribunal would be unlikely under any circumstance to be able to apprehend Putin – or other troika-level officials with immunity ratione personae – as long as Putin remains in office. On this account, the question of whether an aggression tribunal can overcome head of state immunity is, for practical purposes, a moot point. Or at least, it is a factor that should not dissuade advocates of accountability from pursuing a hybrid tribunal if that is the most politically feasible option on the table.

On the issue of political feasibility, supporting an option that avoids having to secure buy-in from the UN General Assembly might be seen as a safer bet for accountability. Right now, the March 2022 UNGA resolution condemning Russian aggression in Ukraine provides a strong expressive message against Putin and Russia’s predation. One may fear that seeking a UNGA resolution on an aggression tribunal, and then failing to get enough support (or getting just a bare and geopolitically skewed margin of support) would detract from the high watermark of near-global condemnation that the March 2022 resolution provided.

And yet.

Aggression is fundamentally a leadership crime. Ukrainian officials have been adamant from the outset of the aggression tribunal conversations that they want to see Putin held to account for the war that he is uniquely responsible for unleashing on their country. More fundamentally, political feasibility is always as much constructed as it is given. Perhaps at this moment, it feels like a stretch to secure the necessary two thirds of those present and voting for an aggression tribunal at the UN General Assembly. But if the United States committed to the effort, that which seems unlikely today may well be possible tomorrow.  

If the most charitable account of the decision to support an “internationalized national court” is that it is politically feasible, then the question becomes: Is the politically feasible option better than nothing? Reasonable minds will certainly differ on this. At a minimum though, anyone supporting the U.S. and U.K. approach should be concerned about the inevitable specter of officials many levels below Putin being prosecuted for a crime for which he bears ultimate responsibility. And if Putin remains free while lower-level officials are convicted, the entire effort could have a delegitimizing effect on accountability for aggression. 

The issue of precedent

Stepping back from the specifics of the Ukraine case, the inter-agency debates behind Monday’s announcement must surely have worked through the question of what precedent support for an aggression tribunal would set. “Ms. Van Schaack acknowledged its reluctance to create a precedent that could pave the way for a similar court to prosecute American leaders,” the New York Times’ Glenn Thrush and Charlie Savage reported. The United States has never been comfortable with the idea of an international tribunal adjudicating its actions. Indeed, even in some future world in which the United States joined the International Criminal Court, it is impossible to imagine that it would sign onto the Court’s aggression provisions. From this perspective, the United States may seek to thwart the emergence of an international tribunal that could potentially be repurposed or expanded to pursue future cases of aggression perpetrated by other states (the United States included). But if those inside the U.S. government believe that by instead supporting an “internationalized national court” in Ukraine they are somehow limiting the replicability or generalizability of the effort, they are mistaken.

The precedent being established here is that any state that is a victim of aggression – or, in a future scenario, merely perceives itself to be a victim of aggression – can, with the support of allied states, create an internationalized national court to prosecute its (actual or perceived) aggressor. Unlike a truly international tribunal, an “internationalized national court” is endlessly replicable; it requires one aggrieved state and some minimum number of supporting states.

The Pentagon believes (erroneously) that sharing evidence of Russian war crimes to the ICC is not worth the risk it brings to its own personnel. Yet the precedent about to be set here presents at least as much risk to the U.S. military going forward. It may be counterintuitive, but putting in the diplomatic legwork to secure UN General Assembly support for a truly international tribunal is the approach that both meets the laudable bipartisan U.S. commitment to accountability for Russian aggression and limits the exposure risks that may well have driven an interagency process to reach this least-best tribunal option in the first place. 

In her remarks on Monday evening, Ambassador Van Schaack emphasized that “we are at a historic moment for international criminal justice.” Surely this moment, with bipartisan support to achieve accountability for Russia’s invasion of Ukraine, merits the wholehearted pursuit of the first-best option for prosecuting the architect of the entire war.

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

The post An Assessment of the United States’ New Position on An Aggression Tribunal for Ukraine appeared first on Just Security.

Russia’s intervention in Ukraine is the most serious violation of the UN Charter, but the UN Security Council, in charge of peace and international security, is unable to end a conflict that includes its permanent members. The International Criminal Court (ICC) has no jurisdiction to prosecute President Putin for aggression crime. It is a failure by design. 

During my nine years as the ICC Chief Prosecutor, I could observe the difficulties of international actors’ managing previous conflicts in Afghanistan, Darfur, Georgia, Iraq, Libya, and Syria. I witnessed the lack of integration of military, political, humanitarian, and justice efforts to manage massive violence. 

For instance, in Libya, the UN Security Council was able to refer the situation to the ICC by consensus and authorized the use of military force. In just four months, the ICC issued arrest warrants against Libyan leaders, including Muammar Gaddafi, and his forces were defeated on the battlefield. Still, there were no serious international efforts to stabilize the country after the rebel victory. 

We should learn how to harmonize international interventions to compensate for the legal architecture’s failures. Just Security provides a unique forum for legal experts to move beyond the boundaries created by their nationalities and academic fields to propose an integrated solution. 

Thomas Kleine-Brockhoff and James H. Sallembien recently affirmed, “On Ukraine, Europeans are Doing More Than Many Seem to Think.” They explained that Europe is providing €52 billion in military aid, humanitarian relief, and financial support to Ukraine. But, Europeans are not leading diplomatic efforts, they are not pushing the warring parties toward talks.  

Europe could do more than finance military efforts to achieve an eventual Pyrrhic victory. The region should lead the negotiations that will be required to stop the war, integrating justice activities and military operations. At least, Europe can join the initiatives presented by Ambassador H.E. Juan Ramón de la Fuente and Pablo Arrocha Olabuenaga. 

A decisive justice intervention would not stop Russian aggression, but it would reaffirm the international order and could contribute to the end game. The questions are: How to combine national and international justice? How could justice facilitate a diplomatic solution? 

While the Ukrainian prosecutors could conduct war crimes’ investigations, they are legally “unable” to prosecute those with immunity like President Vladimir Putin as a sitting head of state. The ICC, respecting the principle of complementarity, could overcome the immunity obstacle. 

The Court has no jurisdiction to investigate the crime of waging a war of aggression, and it will prove challenging to link President Putin with specific war crimes committed during the battle. However, it is evident that the Russian invasion of Ukraine has involved the forced displacement of civilians from the area in which they were “lawfully present,” “without grounds permitted under international law” as required by Article 7, 1 (d) of the Rome Statute. 

Indicting President Putin for forced displacement as a crime against humanity will highlight the links with the military occupation. ICC Prosecutor Karim Kahn’s investigation is active, and he could prioritize those charges allowing the Court to issue an arrest warrant against President Putin in a few months. At the same time, his office could continue investigating other incidents. 

An indictment would not be an obstacle to negotiating the conflict’s end. On the contrary, it would provide leverage at the negotiation table. 

Take the example of the ICC indictment of President Bashir in Sudan, which confirmed the commission of the most severe crimes in Darfur and it also helped trigger a negotiation. The Obama administration used the Court decision as leverage to reach an agreement with President Bashir forcing his administration to respect South Sudan’s independence. Years later, Bashir was arrested. The political actors could pressure Sudan to transfer former President Bashir to the ICC, sending a clear message to President Putin. 

The Russian veto could not stop the ICC.  But, if an agreement is reached, the UN Security Council could offer to suspend an ICC investigation or prosecution, in accordance with Article 16 of the Rome Statute. 

The ICC is the best available option, by far. 

I was encouraged by Prof. Jennifer Trahan and former ICC President Chile Eboe-Osuji’s agreeing on the importance of avoiding selective justice for the crime of aggression. However, both consider that creating a special ad hoc tribunal would be a practical first step while promoting a future review of the Rome Statute jurisdiction.

As former ICC President Eboe-Osuji affirmed, the creation of the Ad Hoc International Military Tribunal in 1945 should be celebrated. It was a step forward for civilization. But, more than 75 years later, returning to an ad hoc solution driven by partial interests would be a gigantic step backward. The Rome Statute, transformed the legacy of Nuremberg into a permanent international criminal justice system. The IMT was victor’s justice, but there was no alternative in 1945. In 2023, there is no reason to ignore an impartial justice system in operation for twenty years. 

As noted, Prof. Trahan does not endorse selectivity either. She considers that “the STCoA [Special Tribunal on the Crime of Aggression] must be part of a two-step process of an ad hoc solution now and fixing the ICC’s jurisdiction over the crime in the future (a process that takes much more time than the urgency of the current situation allows).” 

She cannot guarantee that second step (not even state representatives can), but I would focus on her argument about time. Creating a special tribunal would demand a debate at the UN General Assembly between 193 states. The Rome Statute Assembly of States Parties instead includes just 123, and neither Russia nor the USA could participate.  

Establishing an ad hoc tribunal will delay President Putin’s prosecution for aggression crimes. It would require a protracted process to be born let alone to be up and running. Even if the negotiations between the UN members are successful, and the immunity obstacles are avoided, selecting and recruiting the personnel, adopting the protocols, and conducting investigations would take at least a couple of years. It took two years to adopt the Special Court for Sierra Leone, the model mentioned by former UN Legal Counsel Hans Corell, and another year to issue the first indictments following an exceptionally speedy investigation. 

Instead, amending the Rome Statute would demand a few months, and an arrest warrant for the crime of aggression against President Putin could be immediately added. Indeed, it may essentially come in the form of a superseding indictment. 

Ukraine provides an opportunity to appreciate the importance of an impartial international justice system and to improve the global legal architecture even further. The US position on the ICC and the UN Security Council’s flawed design will not change but they will not be an obstacle to justice. To assist the Ukrainians, experts should be pragmatic, compensate for the legal design failures, and focus on how to achieve a good negotiation to end the war. 

Luis Moreno Ocampo
Founder ICC Chief Prosecutor
Author: “War and Justice in the 21st Century. A case study on the International Criminal Court and its interaction with the War on Terror.”OUP, 2022

IMAGE: A young woman walks among graves of Ukrainian soldiers killed during the current war over the past year at the Field of Mars cemetery on February 20, 2023 in Lviv, Ukraine. (Photo by Sean Gallup/Getty Images)

The post A Pragmatic Legal Approach to End Russia’s Aggression appeared first on Just Security.

I have learned that some UN Member States believe that only the UN Security Council can “create” an international criminal tribunal in the United Nations. However, with respect to Ukraine, a legally available and advisable solution is an agreement between the United Nations and Ukraine through the General Assembly.

Let me first refer to the following proposal:

Proposal for a Resolution by the United Nations General Assembly & Accompanying Proposal for a Statute of a Special Tribunal for Ukraine on the Crime of Aggression. Ukraine Task Force of the Global Accountability Network. 7 September 2022

As one of the lead authors of this proposal, I based my reasoning on my experiences negotiating the agreement between the United Nations and Sierra Leone for the Special Court for Sierra Leone (SCSL) at the request of the Security Council and my negotiations with Cambodia for the Extraordinary Chambers in the Courts of Cambodia (ECCC) at the request of the General Assembly.

The Special Court for Sierra Leone was created by an agreement between the UN and Sierra Leone on 16 January 2002. See Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (rscsl.org). 

After a request from Cambodia and the establishment of a Group of Experts to study the issue of a tribunal, the promulgation of the Law on the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) was “[w]elcome[d]” by the General Assembly. See GA Res. 56/169, para. IV.2 (2002); see also GA Res. 57/228 (requesting resumption of negotiations and “recommending” various features); GA Res. 57/228B (approving draft agreement on cooperation). While the Special Court for Sierra Leone was a freestanding new institution, the ECCC became chambers within the Cambodian court system. See Government of Cambodia, Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), at NS/RKM/0801/12 (eccc.gov.kh). 

This means that the ECCC were created upon a recommendation by the UN General Assembly. Importantly, when the ECCC’s creation was first contemplated, it was not envisioned to be a tribunal within the Cambodian Court system. The original version as well as the final one did not affect the assessment that either could be established with resort to the General Assembly. 

Against this background, the model for the structure of the Ukraine tribunal should be the internationalized SCSL. But what about the authorizing action through the United Nations? Ukraine cannot go to the Security Council as Sierra Leone did for the simple reason that Russia will veto such a proposal. That is why I believe that the process when I negotiated the agreement between the United Nations and Cambodia should be applied. Cambodia did not turn to the Security Council. Instead, it turned to the General Assembly and asked for an agreement. Ukraine should therefore turn to the General Assembly requesting a resolution for a Ukraine tribunal. While the model for the tribunal itself should be Sierra Leone.

With respect to the competence of the General Assembly it is highly important to note that in this particular case the Assembly is acting under the “Uniting for Peace” system, in which the fundamental provision reads:

“Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations.” (emphasis added)

Surely, if the General Assembly can make recommendations to use armed force in the case of a breach of the peace or act of aggression, the General Assembly can make a recommendation or direct a request to the Secretary-General to negotiate an agreement with Ukraine on a Special Court for the Crime of Aggression, if Ukraine so wishes.

It is against this background the following two paragraphs in the preamble of our proposal of 7 September 2022 for a UN General Assembly resolution are formulated as follows:

“Recalling General Assembly resolution 377 A (V) of 3 November 1950, entitled “Uniting for peace”, and taking into account that the lack of unanimity of the permanent members of the Security Council at its 8979th meeting has prevented it from exercising its primary responsibility for the maintenance of international peace and security,” 

“Taking note of Security Council resolution 2623 (2022) of 27 February 2022, in which the Council called for an emergency special session of the General Assembly to examine the question contained in document S/Agenda/8979.”

In sum, the General Assembly is an appropriate and well-advised option for establishing a Special Tribunal for Ukraine on the Crime of Aggression, and such a path would be well grounded in the practices and law of the United Nations. 

IMAGE: Permanent Representative of Russia to the United Nations Vasily Nebenzya speaks during a United Nations General Assembly special session at the United Nations headquarters on October 10, 2022 in New York City. 

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Я дізнався, що деякі держави-члени ООН вважають, що тільки Рада Безпеки ООН може “створити” міжнародний кримінальний трибунал в рамках Організації. Втім, у випадку України юридично доступним і доцільним рішенням є укладення договору між Організацією Об’єднаних Націй та Україною через Генеральну Асамблею.

Передусім я б хотів послатися на цю пропозицію:

Пропозиція щодо резолюції Генеральної Асамблеї Організації Об’єднаних Націй та супровідна пропозиція щодо статуту Спеціального трибуналу для України щодо злочину агресії. Українська робоча група Глобальної мережі підзвітності (Ukraine Task Force of the Global Accountability Network). 7 вересня 2022 року

Як один з провідних авторів цієї пропозиції, я спирався на свій досвід ведення переговорів між Організацією Об’єднаних Націй та Сьєрра-Леоне щодо договору про створення Спеціального суду для Сьєрра-Леоне (СССЛ) на прохання Ради Безпеки та переговорів з Камбоджею щодо створення Надзвичайних палат у судах Камбоджі (НПСК) на прохання Генеральної Асамблеї ООН.

Спеціальний суд для Сьєрра-Леоне був створений договором між ООН та Сьєрра-Леоне 16 січня 2002 року. Див. Договір між Організацією Об’єднаних Націй та урядом Сьєрра-Леоне про створення Спеціального суду для Сьєрра-Леоне (rscsl.org).

Після запиту від Камбоджі та формування Групи експертів задля дослідження можливості створення трибуналу, Генеральна Асамблея “[с]хвал[ила]” набуття чинності Законом про надзвичайні палати в судах Камбоджі. Див. Резолюцію ГА 56/169, п. IV.2 (2002); також див. Резолюцію ГА 57/228 (з проханням про відновлення переговорів і “рекомендаціями” щодо різних аспектів); Резолюцію ГА 57/228B (про схвалення проєкту договору про співпрацю). У той час як Спеціальний суд для Сьєрра-Леоне був окремою новою інституцією, НПСК стали палатами в рамках системи судів Камбоджі. Див. Уряд Камбоджі, Закон про створення надзвичайних палат, з поправками, що набули чинності 27 жовтня 2004 року (NS/RKM/1004/006), за посиланням NS/RKM/0801/12 (eccc.gov.kh).

Це означає, що НПСК були створені за рекомендацією Генеральної Асамблеї ООН. Важливо зазначити, що при першому розгляді можливості створення НПСК не передбачалося, що вони будуть трибуналами в рамках системи судів Камбоджі. Початковий проєкт, як і остаточний, не вплинув на висновок про те, що будь-який із варіантів може бути реалізований за посередництва Генеральної Асамблеї.

Зважаючи на це, моделлю для структури українського трибуналу має стати інтернаціоналізований СССЛ. Але як бути з потребою затвердження таких дій Організацією Об’єднаних Націй? Україна не може звернутися до Ради Безпеки, як це зробила Сьєрра-Леоне, з тієї простої причини, що Росія накладе вето на таку пропозицію. Саме тому я вважаю, що має бути застосований такий самий процес, як і тоді, коли я вів переговори про договір між ООН та Камбоджею. Камбоджа не звернулася до Ради Безпеки. Натомість вона звернулася до Генеральної Асамблеї та попросила укласти договір. Тому Україна повинна звернутися до Генеральної Асамблеї з проханням ухвалити резолюцію про створення трибуналу для України. При цьому моделлю для самого трибуналу має стати трибунал для Сьєрра-Леоне.

Стосовно компетенції Генеральної Асамблеї дуже важливо відзначити, що в цьому конкретному випадку Асамблея діє у рамках системи “Єдність заради миру”, фундаментальне положення якої звучить так:

“Постановляє, що якщо Рада Безпеки, через відсутність одностайності постійних членів, виявиться не в змозі виконати свою головну функцію з підтримання міжнародного миру і безпеки у кожному випадку, коли виникне загроза миру, порушення миру або акт агресії, Генеральна Асамблея негайно розгляне це питання, щоб надати Членам відповідні рекомендації щодо колективних заходів, включаючи, в разі порушення миру або акту агресії та коли це необхідно, застосування збройної сили для підтримання або відновлення міжнародного миру і безпеки. Якщо Генеральна Асамблея в цей час не проводить сесію, вона може зібратися на надзвичайну спеціальну сесію протягом двадцяти чотирьох годин з моменту отримання відповідного запиту. Така надзвичайна спеціальна сесія скликається на вимогу Ради Безпеки голосами будь-яких семи членів або більшістю членів Організації Об’єднаних Націй”. (виділено автором)

Безумовно, якщо Генеральна Асамблея може давати рекомендації щодо застосування збройної сили у випадку порушення миру або акту агресії, то Генеральна Асамблея може надати рекомендацію або направити запит до Генерального Секретаря з проханням провести переговори з Україною щодо договору про створення Спеціального суду для розслідування злочину агресії, якщо Україна цього забажає.

Саме з огляду на це два нижченаведені абзаци з преамбули нашої пропозиції від 7 вересня 2022 року щодо резолюції Генеральної Асамблеї ООН сформульовані таким чином:

“Посилаючись на резолюцію Генеральної Асамблеї 377 A (V) від 3 листопада 1950 року під назвою “Єдність на користь миру”, та беручи до уваги, що відсутність одностайності серед постійних членів Ради Безпеки на її 8979-му засіданні не дозволила їй виконати свою головну функцію з підтримання міжнародного миру та безпеки,”

“Беручи до уваги резолюцію Ради Безпеки 2623 (2022) від 27 лютого 2022 року, в якій Рада запропонувала скликати надзвичайну спеціальну сесію Генеральної Асамблеї для розгляду питання, що міститься в документі S/Agenda/8979”.

Таким чином, створення Спеціального трибуналу для України щодо злочину агресії через Генеральну Асамблею є доречним і добре продуманим рішенням, яке ґрунтується на практиці та праві Організації Об’єднаних Націй.

ФОТО: Постійний представник Росії при ООН Василь Небензя виступає під час спеціальної сесії Генеральної Асамблеї ООН у штаб-квартирі Організації Об’єднаних Націй 10 жовтня 2022 року в Нью-Йорку.

* * *

Про автора:

Посол (у відставці) Ганс Корелл (@CorellHans) є колишнім заступником Генерального Секретаря з правових питань та юридичним радником Організації Об’єднаних Націй (березень 1994 – березень 2004).

The post Спеціальний трибунал для України щодо злочину агресії – роль Генеральної Асамблеї ООН appeared first on Just Security.

There is one point on which I entirely agree with Ocampo. It is that the Assembly of States Parties to the Rome Statute should remove the restriction in article 15bis(5) that precludes the Court from exercising jurisdiction when the crime of aggression is committed in the territory of a State party. I have already said so many times before now, in speeches and lectures. The politics that produced that provision is highly regrettable, indeed, as it has left the world without a legal framework already in place to bring accountability to bear on the apparent crime of aggression in Ukraine. It is for that reason that the Assembly of State Parties must – I repeat – delete without further delay the restriction in article 15bis(5) of the Rome Statute for future application.

That said, I could not agree with Ocampo’s primary assertion, which is that to establish the STAU is to “consecrate selective justice.” In my view, the very opposite is true in the long run.

In the minds of many, Ocampo’s argument may seem arresting in the moment. However, taking a long-term view of international law reform, that proposition does not stand the test of time. Indeed, history amply teaches us that lesson. Let us remember that the same arguments were heard in 1945 and the following years, about the establishment of the Nuremberg and Tokyo Tribunals. Those were arguments made by sensible people driven by a certain view of purity of principles – in the moment. But they were unconcerned, or not sufficiently concerned, that their arguments might have – in the moment – resulted in impunity, let alone serious injustice for victims of the grave atrocities that had been committed.

Now looking back, those precedents of 1945 and 1946 – reproached by some then as “flawed” – have been celebrated by most (including Ocampo, I’m sure) as worthy precedents for the ICC and the earlier ad hoc tribunals for Rwanda and the former Yugoslavia.

So, too, it will be for the Special Tribunal for the Crime of Aggression against Ukraine. I strongly support its establishment. Years from now, it would have correctly earned its place as one of the building blocks in the never-ending construction project of international law.

IMAGE: The twenty-first session of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) opens at the World Forum Convention Center in The Hague, The Netherlands. (Photo via International Criminal Court) 

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