The Council of Europe as a Preferable and Viable Partner to Ukraine for Prosecuting the Crime of Aggression
On April 30, 2024, the Committee of Ministers (CoM) of the Council of Europe (CoE) authorised the Secretary General to prepare any necessary documents to contribute to consultations within the Core Group on a possible draft Agreement between the Council of Europe and the Government of Ukraine on the Establishment of a Special Tribunal for the Crime of Aggression of the Russian Federation against Ukraine, including its Statute, and on a possible draft enlarged partial agreement governing the modalities of support to such a Tribunal, its financing and other administrative matters.
This decision offers a glimpse of how to hold to account those responsible for the crime of aggression in Ukraine: a treaty between the CoE and Ukraine establishing a special tribunal. This is a welcome move, as it provides an opportunity to punish one of the most serious crimes and thus contributes to the enforcement of the jus contra bellum, which in turn should be beneficial to European security in the long term. Before explaining this argument in more detail, I will first recapitulate why the International Criminal Court (ICC) cannot step in. On that basis, I will reason that a special tribunal based on a treaty between the CoE and Ukrain is superior to other possible ways of establishing such a tribunal. Given the advantages of such a construction, I will explore whether creating it is legally feasible, arguing notably that the CoE has the power to enter into such a treaty. In other words, it is both a viable and preferable option.
Why a special tribunal?
Although the ICC may prosecute the crime of aggression under Art. 8bis Rome Statute, State parties to the Kampala Amendment have severely restricted the Court’s power to do so: only if the State victim to the aggression and the State whose nationals are accused of the crime are parties to the Rome Statute (Art. 15bis(5)) or if the UN Security Council (UNSC) refers the case (Art. 15ter), the ICC has jurisdiction. As Russia joining the Rome Statute or the UNSC referring the case to the ICC seem unlikely scenarios, the prospects of amending the Rome Statute are equally bleak. Only 45 of the 124 States party to the Rome Statute have ratified the Kampala Amendment. Given the quorum for amending the Rome Statute (see McDougall and Heller, at p. 6), campaigning for an amendment to that statute is an uphill battle (see, however, Hassfurther who advocated for such an amendment).
Early in the war in Ukraine, politicians, intellectuals, and academics therefore called for a special tribunal. In the ensuing debate, different options for creating such a tribunal have crystalised (see Heller). Proposals include a tribunal based on a resolution of the United Nations General Assembly (UNGA) (see Johnson), on a multilateral agreement between States (see Pociej, para. 30), or on Ukraine’s jurisdiction, with the support of an agreement with the CoE or the EU (see Bildt). At the heart of the debate is the question of personal immunity of the three highest Russian State officials, the troika of President, Prime Minister, and Foreign Minister. Back in 2002, the International Court of Justice (ICJ) indicated that personal immunity would not bar prosecution before ‘certain international criminal courts’ (see ICJ, Arrest Warrant Case, para. 61). While much is still debated as to which criminal courts qualifies as ‘international’, the ICC for its part takes the view that it falls in this category, as evidenced by the arrest warrant issued against President Putin. Yet for all but perhaps the option involving the UNGA, one may reasonably doubt whether a tribunal so established would be sufficiently ‘international’.
Why the ‘CoE solution’ is the preferable option
Currently, a broad majority in the UNGA in favor of a special tribunal is unlikely. States campaigning for holding the Russian leadership to account for the crime of aggression have hence moved on. They recently began favouring a solution involving the CoE. Althought the CoE has been mentioned before in the debate as a partner for prosecuting the crime of aggression (see Heller, Peters and Stendel), the CoM paving the way for this option (supported by the Parliamentary Assembly of the Council of Europe (PACE)) is a new and laudable development. What might look like a second-best option is, I argue, the preferable way of establishing such a tribunal.
It matters who prosecutes the crime of aggression. Western States, especially France, Germany, the UK or the US, are regularly confronted with accusations of double standards: why should Vladimir Putin be prosecuted, whereas George W. Bush jun. remains undisturbed (see for the argument Heller)? More recently, Germany’s continued rallying against Russia has been met with criticism of its support for Israel. Leaving aside whether allegations of double standards are persuasive (see Labuda), they are a political reality any plan to establish a special tribunal must reckon with. The ‘CoE solution’ pre-empts accusations of double standards: Who should prosecute an aggression between two (former) members but a regional organization dedicated to the ‘pursuit of peace’, as the CoE Statute’s preamble puts it? Furthermore, one cannot blame the CoE (or Ukraine) that it did not prosecute international crimes elsewhere (see Peters and Stendel and Heller, p. 18). If the tribunal were to be established by the UNGA or a multilateral agreement involving a regionally diverse array of States, the critique of selectivity and double standards would be difficult to refute since they could also have decided to punish those involved in the illegal invasion of Iraq (and other instances).
Simultaneously, the ‘CoE solution’ has advantanges beyond avoiding allegations of double standards. As Heller has pointed out, a majority of CoE members penalize the crime of aggression domestically and the majority of parties to the Kampala Protocol are members of the CoE (Heller, p. 18). CoE members’ shared commitment to fighting the crime of aggression enhances the legitimacy of any mechanism erected by the CoE.
Still, personal immunity of the intended defendants remains the biggest issue. In contrast to a Ukrainian tribunal supported by the CoE, a tribunal established by treaty between the CoE and Ukraine has a better chance of falling in the category of ‘certain international criminal courts’ mentioned above. However, there may be no need to explore this issue further because a tribunal so established might profit from an under-explored regional rule of customary law. As Anne Peters and me have suggested before, state practice among CoE members hints at a regional exception to personal immunity. Penalizing the crime of aggression under domestic law implies States’ willingness to eventually exercise their criminal jurisdiction. If this crime mainly (though not exclusively) applies to persons enjoying personal immunity, domestic crimes of aggression would seem to suggest that personal immunity does not prevent such proceedings. The fact of states having criminalized aggression domestically also allows for other conclusions. If we apply the ICJ’s distinction between procedural rules of immunity and substantive rules on criminal responsibility as working on different levels (see ICJ, Arrest Warrant, para. 60; see also for ius cogens ICJ, Jurisdictional Immunites, para. 93), the existence of the offence does not necessarily imply that there is no personal immunity for State officials. Rather, any prosecution could be subject to a waiver of or exceptions to personal immunity. Thus, finding a regional exception to personal immunity would require a thorough analysis of the respective domestic legal systems. In any case, it is important to bear in mind that more persons than the troika can commit the crime of aggression (McDougall). For those suspects, functional immunity arguably cannot prevent prosecution (Heller, p. 12). In this light, establishing a special tribunal would not be in vain.
Why the ‘CoE solution’ is a viable option
Establishing a Special Tribunal by virtue of a treaty between the CoE and Ukraine, supported by further (also non-CoE-member) States, is desirable. The question remains whether the CoE may actually enter into such an agreement. To be sure, establishing a special tribunal poses numerous other questions, e.g. the definition of the crime of aggression (see Kress); immunities; the applicability of the Monetary Gold rule, if the tribunal is indeed an ‘international tribunal’ (see Akande); or trials in absentia, to name only a few. Yet when it comes to the CoE in particular, it is not obvious that the CoE is competent to enter into an agreement with Ukraine to establish a special tribunal. Thus, this section addresses the CoE’s treaty-making powers.
The natural starting point for an inquiry into the CoE’s powers is the Statute of the CoE, as Art. 6 VCLT-IO would suggest. However, the Statute is silent on the issue of treaty-making capacity. Without clear guidance by the founding treaty, we must return to the basics of international organizations law. As treaty-making power flows from an organization’s legal personality, we first have to establish whether the CoE enjoys such personality. One can accept a presumption in favour of legal personality (see Golia and Peters, p. 37). The CoE also enjoys legal personality under the implied powers doctrine applied by the ICJ in the Reparations for Injuries Advisory Opinion as legal personality is indispensable to discharge its functions under its Statute. Art. 40 CoE Statute empowers the CoE to enter into treaties on the organization’s and its employee’s privileges and immunities. Member States must have intended the CoE to enjoy international legal personality because, otherwise, it could not fulfill this mandate. Indeed, the CoE has used this power and concluded treaties based on Art. 40 (see here and here).
While the CoE’s practice implies that it does have treaty-making powers, it does not mean that the CoE may enter into any treaty. At this juncture, it seems useful to distinguish between ‘indispensable “core treaties”’ and other treaties for which the organization’s treaty making power depends ‘on the competences of that particular organization’ (Peters, para. 41). As the treaties the CoE concluded in the past fall in the first category of treaties (while the envisaged treaty with Ukraine would not), existing treaty practice does not bring us very far. Rather, we need to determine whether a treaty establishing a special tribunal for the crime of aggression falls within the competences of the CoE. This is so because an ‘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.’ (ICJ, Reparation for Injuries, p. 182).
The CoE’s competences flow from its Statute as interpreted in the practice of member States. While, as Peters has rightly said, practice cannot amend the treaty, it can clarify what falls within the CoE’s competences. The Statute does not explicitly entrust the CoE to establish a criminal tribunal nor does it mention criminal law. However, the broad mandate for ‘the maintenance and further realisation of human rights and fundamental freedoms’ (Art 1(b) CoE Statute) would entail such a tribunal because an aggression is detrimental to the realization of human rights and, arguably, even violates the right to life of those killed in the war (see HRC, General Comment No. 36, para. 70). In line with the European Court of Human Rights’ (ECtHR) jurisprudence constante (see, e.g., ECtHR, Kurt v. Austria, para. 157), a measure to punish those in charge is thus a measure to maintain human rights. Given that the nexus between peace and the enjoyment of human rights is implicit in the CoE Statute’s preamble, such a reading of the Statute does not seem too far fetched. The CoE’s current practice also supports this reading. Recently, the CoM adopted the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine. While the CoE is not a party to this agreement, the agreement highlights that dealing with the Russian aggression against Ukraine falls within the CoE’s mandate. Further, if the CoM were to unanimously adopt a common policy on the establishment of such a tribunal under Arts 15, 20(a)(i) or (vi) CoE Statute, as Owiso and Heller have suggested, this would be a strong endorsement of the CoE’s competences. Consequently, one can easily conclude that the CoE is competent to enter into such an agreement, as also a recent resolution by PACE posits (para. 11).
Establishing a special tribunal for the crime of aggression against Ukraine through an agreement between the CoE and Ukraine is, as I argued, a legally viable and also the preferable way to hold the Russian leadership to account. It remains to be seen whether the CoE member States will follow suit.
