Establishing a Dedicated Tribunal for Ukraine: Addressing the Need for Justice
In a recent move, International Bar Association (IBA) has adopted a resolution in order to request the United Nations to create a Special tribunal which can try Russia for the crimes of aggression it has committed against Ukraine1 This development has come due to the long-standing war between Ukraine and Russia which is going on since 2014 and which has got escalated in the year 2022. The IBA has openly condemned the Russian aggression against Ukraine and has asserted that Russia should be adequately made responsible for initiating the current war.
The resolution which has been passed by the IBA urges the governments of the UN member states to support and endorse the setting up of a special international criminal tribunal for the crime of aggression against Ukraine.2
Although, IBA has affirmed that there are already remedies available such as the International Criminal Court (ICC), the European Court of Human Rights, and the International Court of Justice, which are vested with the jurisdiction to review international crimes committed in Ukraine; however, they believe that there is a necessity of a special tribunal because at present, the crime of aggression is not covered by any of these jurisdictions, and hence, only by establishing a special international criminal tribunal, Russia could be reasonably tried for the crime of aggression against Ukraine.3
Significantly, the prosecutor General of Ukraine has supported the resolution passed by IBA and has called such actions a decisive step stating “Justice should not be limited to the punishment of ordinary executors. Their leaders, who used their power to spin this flywheel of evil, must be brought to justice. A special tribunal for the crime of aggression is the best possible tool to end impunity at the top of this criminal regime.” It is important to note that not only IBA has called for making a special tribunal but many global experts have already been voicing out about developing a proper framework that could ensure justice to the war-affected people.
What are crimes of aggression?
The crimes of aggression is one of the four core international crimes which is defined under Article 8 bis of the Rome Statute of the ICC adopted at the 2010 Review Conference in Kampala. This crime was added through a resolution in 2010 and was only adopted in 2017 making it a relatively new crime that has now been codified as a core international crime. When the Rome statute was being built in 1998, the State parties could not come to a consensus in regard to the definition of crimes of aggression. As a result, it took another 12 years to codify the crime consensually. The crime of aggression is essentially a reinterpretation of the ‘crimes against peace’ concept which was recognized during the Nuremberg and Tokyo trials. Hence, the crime of aggression has three important elements which are required to be fulfilled in order to make someone liable. They are:
a. The perpetrator must be a political or military leader,
b. The Court must prove that the perpetrator was involved in the planning, preparation, initiation or execution of such a State act of aggression, and;
c. Such act of aggression should by its character, gravity and scale, constitute a manifest violation of the Charter of the United Nations4
Although, there is not an exhaustive list of what constitutes an act of aggression, however, a general framework regarding the act of aggression is provided under General Assembly Resolution 33145 Hence, any act falling under its domain would be constituted as an act of aggression.
Other than crimes of aggression, the three core international crimes are- war crimes, genocide, and crimes against humanity. War crimes are provided under Article 8 of the Rome Statute and are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. Resultantly, these crimes must always take place in the context of an armed conflict, either international or non-international.6 Within Article 8, there is a list of offences provided which constitutes war crimes. Further, genocide is a recognized crime under Article 6 of the Statute. Such crimes are committed with a specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. Under Article 6, there is a list of five acts provided and according to the law, if any of these acts are done with the above-mentioned intent, such acts would constitute a genocide.7
Lastly, crime against humanity is defined under Article 7 of the Statute. Such crime is defined as a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Therefore, when any acts as provided under Article 7 such as murder, enslavement, torture, etc. are committed with the knowledge, such acts would constitute a crime against humanity. Moreover, this crime is independent of an armed conflict and can also occur in peacetime, similar to the crime of genocide.8
Why ICC cannot try Russia for crimes of aggression?
The ICC jurisdiction permits it to prosecute individuals for the “most serious crimes of concern to the international community as a whole” for any of the core international crimes.9 However, it is necessary to understand that the jurisdictional regime of the crimes of aggression is slightly different. Hence, although ICC has the jurisdiction to deal with crimes of aggression, nonetheless, it can only use its jurisdiction against those countries or State parties who have ratified the ICC statute. As per the Article 15 bis and 15 ter of the Rome Statute, the ICC cannot exercise its jurisdiction over crimes of aggression committed by nationals of States, not a party to the Statute or on those States’ territories, unless the UNSC, acting under Chapter 7 of the UN Charter, refers the situation to the Prosecutor. Further, surprisingly, Russia which constantly supported the formation of the ICC had only signed the Rome Statute but never ratified it. Moreover, it even withdrew its signature in 201610
Similarly, even Ukraine is not a party to Rome Statute, and to date, only 44 out of 123 States Parties have ratified the Kampala Amendments. Moreover, it is unlikely that the UNSC path would be of any aid as Russia holds veto power in decisions made by UNSC. Thus it is unrealistic to expect a Security Council referral under Article 15 ter to commence prosecution of Russia for crimes of aggression against Ukraine. Hence, the jurisdiction of ICC in relation to a crime of aggression has remained limited and mostly ineffective as not even a single person has been tried for this offence after the Nuremberg and Tokyo trials.11
Nonetheless, this only means that the ICC does not have jurisdiction over crimes committed fully in Russia by Russian nationals i.e. crimes of aggression, as Russia is not a party to the Rome Statute which created the ICC but the ICC can still have jurisdiction over war crimes, crimes against humanity, and genocide committed in Ukraine irrespective of who committed them. It is logical to highlight that Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to Article 12(3) of the Statute12 So pursuant to two declarations lodged by Ukraine in 2014, it has accepted the Court’s jurisdiction over its territory from November 201313
Thus, the ICC jurisdiction can be considered general, with the exception of the crime of aggression in terms of trying Russia for any international crime.
Moreover, there is another problem which is ICC lacks any enforcement or police powers and depends on state cooperation to execute arrest warrants. At present, ICC has issued two arrest warrants against President Putin and Lvova-Belova as they are charged with two war crimes under the Rome Statute for their oversight of Russian efforts to forcibly transfer Ukrainian children from Russian-occupied parts of eastern Ukraine into Russian territory14
However, it is noteworthy that in their absence or without their custody, the trial or conviction cannot take place, and hence, the ICC remains powerless in doing anything against these individuals and only functions as a symbolic representation of international criminal law and harmony.
The Way Ahead
As a result of the ICC’s jurisdictional failure to prosecute Russia for the crimes of aggression, building a special tribunal seems a reasonable option. Even in past, built-for-purpose aggression tribunals have been created such as Special Court for Sierra Leone (SCSL) and International Criminal Tribunal for Former Yugoslavia (ICTY) to address the need of states in prosecuting the responsible people and to reflect the message of international peace amongst the other state parties. In a similar manner, experts have argued for a special tribunal for Ukraine which would be situation-specific and would possess limited jurisdiction. The idea is to ensure that the tribunal is only built to address the crimes of aggression so that it does not interfere with the jurisdiction of the ICC and eliminate redundancy with the ICC’s efforts15
Moreover, it can also be ensured that the tribunal is focussed on only limiting the application of criminal liability against top leaders who are responsible rather than broadening its scope by prosecuting everyone responsible for the offences. In simple words, the experts have recommended that the definition of crimes of aggression as provided in the Rome Statute should be respected, and any prosecution should be done within its scope only.16
Other than the above-mentioned option, the Council of Europe has suggested two alternate ways which are firstly, establishing a tribunal based on a multilateral agreement between Ukraine and other interested states and secondly, establishing a ‘hybrid’ tribunal based on Ukrainian jurisdiction and law but with international participation.17
Nonetheless, the important aspect here is to ensure that the justice mechanism must be lawful and credible and should be an anti-thesis to arbitrariness. International crimes should be dealt with the possible international mechanism without allowing it to have domestic interference. At present, the time warrants a need to end the Russian-Ukraine war but it is also important to ensure that those responsible for the war and other international crimes should be strictly penalised and made accountable so as to create deterrence. Therefore, seeing the past precedent of setting up tribunals, it is necessary that a sensible decision must be taken that, at best, reflects the due process of law and fair idea of justice.