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Wednesday, July 17, 2024 | Back issues
Courthouse News Service Courthouse News Service

Ukraine presses to keep plan for special tribunal on Russian invasion alive

A gap in jurisdiction leaves the International Criminal Court able to prosecute war crimes in Ukraine — but not the invasion itself. 

KYIV, Ukraine (CN) — Ukraine’s prosecutor general wants the international community to set up a special tribunal to prosecute the high-level Russian officials responsible for invading his country — not just for his people, but to make the entire world safer. 

“Ukrainians suffer for this war. We don’t want anyone else to suffer,” Andriy Kostin told Courthouse News in his office in Kyiv. 

Kostin, a lawyer by training, doesn’t wear a suit to work anymore. Rather, he favors a black shirt with military-style patches that say Office of the Prosecutor General, a visual reminder that his country is at war and under martial law. 

More than 1,000 miles away in The Hague, the International Criminal Court — the world’s only permanent court for atrocity crimes — has issued arrest warrants for President Vladmir Putin and other top Russian officials. Those warrants are for war crimes — deporting Ukrainian children to Russia and attacking civilian infrastructure — not for launching the invasion itself. 

The act of invading another country, known as the “crime of aggression,” is one of the four core international offenses outlawed by the Rome Statute, the 1999 treaty that created the court. But — unlike genocide, war crimes and crimes against humanity — it can only be prosecuted if committed by a party to the statute. 

This leaves Russian nationals off the hook for the war itself, which, as Ukranians are quick to tell you, is the crime that led to all of the other crimes in their country. 

Soon after Russian tanks rolled over the border in February 2022, some lawyers began proposing an ad hoc tribunal that could be established to cover the gap. After some conflicts, such as the wars following the breakup of the former Yugoslavia, special courts were set up where top leaders faced charges. But the establishment of an aggression tribunal for Ukraine has faced an uphill political and legal battle. 

Roadblocks

Both the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda were set up by the United Nations Security Council, the only U.N. body whose decisions are binding on all member states. Russia is one of the five veto-wielding permanent members of the security council and has blocked any attempt to establish such a body for the current conflict. 

The U.N. General Assembly, which represents all member states and where Moscow’s vote is one among many, also has the power to set up a court, as when it established the Special Court for Sierra Leone in 2002. Legal experts have disagreed as to whether such a court could overcome Putin's immunity as the head of state, but attempts to go that route have been thwarted by a lack of buy-in from countries, particularly in the global south.

“We know the UNGA is impossible because of political issues,” said Anton Korynevych, who represents Ukraine at international courts for the Ministry of Foreign Affairs. 

The ICC’s chief prosecutor has also expressed concern over the establishment of such a court, worried it may take resources away from his own institution.

“We should avoid fragmentation, and instead focus on consolidation,” Karim Khan told reporters following the court’s annual meeting last year. 

Kostin, Ukraine's top prosecutor, stressed that such a tribunal must be complementary to the ICC, not in competition. 

Council of Europe

With a U.N. tribunal seemingly out of reach, Ukraine has now set its sights on the Council of Europe, the post-World War II human rights organization that oversees the European Court of Human Rights. Last year, the council set up a register of damages to track and, Ukraine hopes, in the future pay compensation for the damage inflicted by Russia. 

The register, which is based in The Hague, was created by a so-called “enlarged partial agreement.” This legal tool allows the council to create treaties that go beyond its members. Forty-four countries and the EU have backed the register, including the United States, Canada and Japan.

“We think the most effective way to set up a tribunal is a bilateral agreement between Ukraine and the Council of Europe,” Korynevych told Courthouse News. 

International enough?

Ukraine doesn’t just want a tribunal for aggression, it wants a court that could prosecute Putin. For that to happen, the mechanism would have to be “internationalized.” 

Nations have long recognized immunity for top leaders, believing that one state cannot exercise authority over another. This idea was put to judges at the International Court of Justice, the highest judicial body of the U.N., in 2002. 

Belgium charged Abdoulaye Yerodia Ndombasi, the Democratic Republic of the Congo's minister of foreign affairs, with encouraging fellow Congolese to kill ethnic Tutsis during the genocide in Rwanda. The Congolese government fought back, arguing the minister was immune from prosecution. 

In what became known as the Arrest Warrant Case, the ICJ issued a landmark ruling that sided with Congo and found Yerodia could not be tried in a Belgian court for these crimes. The ruling noted, however, that heads of state can be tried by international courts, a decision that has been held up by other international courts, including the ICC.

“Two countries are international,” Korynevych said, glibly, when asked about the issue of immunity. The country’s position is that the Council of Europe, with its 46 member states, plus any other country that would join an agreement, would be sufficiently international. 

The theory is legally untested and some legal scholars remain skeptical.

“This cannot overcome head of state immunity,” Tamsin Phillipa Paige, an international law expert, told Courthouse News.  

Immunity only applies while Putin remains in power, however, so should there be regime change in Moscow, the problem could resolve itself. 

Impunity 

Ukrainian leaders have continued to push for a tribunal despite obstacles.

“If we want true justice, we should not look for excuses and should not refer to the shortcomings of current international law but make bold decisions that will correct those shortcomings,” President Volodymyr Zelenskyy told reporters during a visit to The Hague last year

The country sees the aggression tribunal as both an important legal and symbolic tool for justice.

Korynevych said, “The crime of aggression is the root cause of all other crimes.”

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