06 Januar 2023

A Ukraine Special Tribunal with Legitimacy Problems?

A Reply to Günter Krings (CDU), Volker Ullrich (CSU) and Sergey Lagodinsky (Bündnis 90/Die Grünen)

The call for a Special Tribunal for the Russian war of aggression in Ukraine (‚UkrTrib‘) is also getting louder in the German political discourse1). The proposal goes back to an initiative by the British international lawyer and writer Philippe Sands, who was quickly joined by a number of prominent politicians and international (criminal) lawyers2). Sometimes, a comparison is drawn with the Nuremberg International Military Tribunal (IMT)3), but this is misleading for several reasons, not least because the IMT was a consequence of the defeat of Nazi Germany and the following regime change, which in the case of Russia is unforeseeable4).

From a legal perspective, the proposal is necessary since the jurisdiction of the International Criminal Court (‚ICC‘) in the case of a crime of aggression is limited to State Parties (Art. 15bis(5) ICC Statute e contrario), so both the attacking State (Russia) and the victim State (Ukraine) must be parties to the Statute. It was of course already known before the Russian invasion of Ukraine that this jurisdictional regime is much too narrow – why should the victim State, which is also a territorial State, not have jurisdiction over a crime of aggression committed on its territory?5) Yet, when the crime of aggression was included in the ICC Statute in the course of the first review conference in Kampala in 2010, a broader jurisdictional regime was politically not feasible. In fact, the existing jurisdictional straightjacket was also promoted by France, the United Kingdom and the USA, i.e., the very Western States which now feel compelled to demand a UkrTrib6), albeit being unclear whether they will join a respective treaty at all or whether they will refrain from doing so for fear of setting a precedent which could later turn against them7).

Russia’s war of aggression now painfully reveals that the ICC is a toothless tiger with regard to that crime. The possibility to circumvent the narrow jurisdictional regime by an UN Security Council referral (Art. 15ter ICC Statute) is doomed to fail due to the Russian veto power8). To change this jurisdictional regime, in particular waiving – for good reasons – the State Party requirement with regard to the victim/territorial state, is not easy, because it would have to be made via the ICC’s Assembly of States Parties (‚ASP‘). Surprisingly, however, the issue was not even discussed at the ASP’s 21st session just held in December; in fact, the Western State Parties calling most loudly for aggression liability, including Germany, did not even table a non-paper or proposal in that regard. At any event, such an amendment would require the approval of seven eighths of the State Parties (Article 121(4) ICC Statute), i.e. 108 of 123, a very qualified majority difficult to achieve.9) Moreover, it is disputed whether such an amendment could have a retroactive effect (which depends on whether one wants to subject subsequent jurisdictional extensions to the principle of legality within the meaning of Art. 22-24 ICC Statute).

Against this background, it is understandable that especially Ukraine (which, however, also prosecutes the crime of aggression itself)10) wants to close the resulting gap in criminal prosecution by creating a UkrTrib. However, there are quite a few issues to be solved, it is not – contrary to Lagodinsky – just about “formalistic concerns” but also about “weighty counter-arguments”. First of all, as will be shown in the first section, it is not easy to provide a UkrTrib with sufficient legitimacy in the eyes of the world, above all in the eyes of the Global South (which is fundamentally sceptical about the Western Ukraine policy). There (and elsewhere) one wonders, among other things, why such a tribunal was not set up during the unlawful (US-led) invasion of Iraq. While it is disputed whether this invasion qualifies as a clear-cut war of aggression and, in any case, did not amount to a war of conquest, the complete absence of any accountability for those responsible at the leadership level at the time shows a strange understanding of the so-called rule-based international legal order, which should guarantee the same application of the law for everyone.11) Follow-up questions and problems, arising or separate from this, are discussed in the second section. All of these and possibly other questions need to be explored thoroughly and impartially before hastily demanding the establishment of a UkrTrib.

Questionable Legitimacy

The main problem is the legitimacy of such a Special Tribunal. This problem can only be overcome, if at all, by involving the UN, in particular the General Assembly (‚GA‘).12) In contrast, regional initiatives (e.g. at the level of the Council of Europe, ‘CoE’) or a multilateral treaty between interested States and Ukraine (Nuremberg model)13) may only produce a limited (only European) legitimacy. This also corresponds with the practically unanimous view of the tribunal advocates14), which is why it is surprising that Krings, Ullrich and Lagodinsky focus so strongly on the European (EU/Council of Europe) and national-German level (Bundestag), even calling for a German leadership role.15)

Thus, a GA-Resolution is not only desirable but necessary. In this resolution, the GA would have to recommend to the UN Secretary General the establishment of such a tribunal by concluding a bilateral treaty with Ukraine; or a bilateral agreement between the UN and Ukraine would be negotiated in advance and then be submitted to the GA for approval. The first procedure was chosen when the Special Court for Sierra Leone (‘SCSL’) was founded16), although the UN Security Council (Res. 1315/2000) – without invoking its Chapter VII powers – mandated the UN Secretary General (see the agreement here), an option unavailable in this context given the Russian veto power.17) The second procedure was used when establishing the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) (A/RES/57/228 B, 22 May 2003). The UkrTrib’s jurisdiction would then ultimately be based on the territorial jurisdiction of Ukraine, which it would delegate to the UkrTrib. Given the practically worldwide recognition of the principle of territoriality, this is, in principle, legally unproblematic.18) However, such an establishment of an international criminal justice institution by way of delegation of the territorial State has legal implications, to which we will have to return below.

The recourse to the UN GA, albeit necessary from a practical and legitimacy perspective, is also confronted with the problem that GA resolutions are not binding (Art. 10, 13 (1), 14 UN Charter). A further legal effect, for example as an opinio juris contributing to the creation of customary international law, and also the political weight of such resolutions largely depend on the concrete voting result and the resolution’s concrete content, with the Uniting for Peace mechanism employed here by the UN Security Council (S/RES/2623 (2022)) having certainly strengthened the GA’s mandate.19) Also, while enforcement action is reserved to the UN Security Council, the GA certainly has a role to play with respect to international peace and security, namely by recommending certain “measures for the peaceful adjustment of any situation” which may involve “some kind of action”20).

As far as the voting result is concerned, it should be as overwhelming as the condemnation of the Russian aggression on 2 March 2022 (Res. A/ES-11/1, 141 votes in favour [out of 193 member States]) and the condemnation of the so-called annexations on 7 October 2022 (Res. A/ES-11/L.5, 143 votes in favour). Only then can one say that such a tribunal sufficiently reflects “the will of the international community” as a whole and can be considered as “truly international”.21) Such a voting result is however by no means certain. On the contrary, other resolutions passed in this context, such as the Russian exclusion from the UN Human Rights Council (Res. A/ES-11/3, 8 April 2022, 93 votes in favour) and on Russian reparation obligations (Res. A/ES-11/L.6, 7 November 2022, 94 votes in favour),22) have received significantly less support and show that the western Ukraine policy does not enjoy global support.23)

The voting result of such a resolution will also depend on its content. This, in turn, can prejudice the jurisdiction of the UkrTrib and other important legal issues, unless the bilateral agreement between the UN and Ukraine has been agreed upon in advance. The more explicit and prosecution-friendly the text of such a resolution, the more resistance can be expected from States that are critical of international criminal justice anyway and want to avoid a precedent that may possibly turn against them later. If, on the contrary, the text is vague and leaves crucial questions open, such as about immunity (see below), it can most probably count on greater support but will tend to limit the tribunal’s capacity to act.

In addition, what makes matters worse in case of these kind of special tribunals is that they are exposed to serious legitimacy challenges anyway, precisely because of their exceptional character and their ex post facto nature. It should be recalled in this context that the establishment of the ICC – on the basis of an international treaty – is also to be seen as a response to these legitimacy challenges and, taken at its word, as a departure from the international ad hoc criminal justice à la carte common up to that date. Of course, the UN Security Council cannot be prevented from creating such tribunals directly under its Chapter VII powers; yet, this does not make the legitimacy challenges disappear. This may be different in the case of so-called hybrid or internationalized tribunals24), which are established on the regional/national level with international staff, but on the basis of a (sole or additional) national law.25) At any rate, it appears at least as an ambivalent signal when the same (Western) States that are among the most important supporters of the ICC, including Germany, now want to set up a UkrTrib instead of focusing their combined efforts on the ICC as the only universal international criminal tribunal (albeit in need of reform26)). Chief Prosecutor Khan pointed to the implicit risk of a weakening of the ICC in his recent remarks before the ASP.27) Khan is right and it is indeed, as already noted above, surprising if these same States did not use the last session of the ASP to kick off the discussion process on the (necessary) amendment of the ICC’s jurisdictional regime regarding aggression. Such an amendment could also consist in enabling the GA, given its role in securing international peace mentioned above, to request the ICC, in combination with the consent of the territorial State, to exercise its jurisdiction. At any rate, with the total passivity at the last ASP, precious time has been lost and it is by no means certain that the setting up of a whole new Special Tribunal would be quicker than amending the ICC Statute (we will return on this practical issue at the end).

All in all, it is clear that a GA resolution passed by only a weak majority would prove a heavy mortgage on the legitimacy of a UkrTrib. There is a risk that a debate on legitimacy will arise and that the tribunal will not be able to concentrate fully on its actual task – investigating, prosecuting and trying the Russian war of aggression. Instead, it may have to defend its existence, possibly even more than other special tribunals, not least the UN Former Yugoslavia Tribunal (ICTY), given that the latter could at least rely on the authority of a UN Security Council resolution.

Further Questions and Problems

Beyond these fundamental concerns related to legitimacy, there are further problems, some due to the nature of such a tribunal, some of them independent of it:

(1) First of all, it is misleading when it is repeatedly argued that the crime of aggression is on the one hand the “supreme crime” and on the other hand the trigger for all further crimes.28)