Establish an International Tribunal or Court for Ukraine on the Crime of Aggression — Time Is of the Essence

Monday, 11 December 2023 — , Founding Chief Prosecutor, UN Special Court for Sierra Leone. An Open Letter to the International Community

Like the consideration of creating a UN General Assembly backed Special Tribunal for Ukraine on the Crime of Aggression, establishing a Multinational Court for Ukraine on the Crime of Aggression in response to Russian aggression against Ukraine presents a crucial alternative step towards ensuring accountability, justice, and deterrence of such actions on an international scale.

Similar to the historical precedents set by the International Tribunal at Nuremberg and the International Tribunal at Tokyo after World War II, this type of international court aims to address and prosecute those responsible for the crime of aggression against Ukraine unchallenged by head of state immunity.

The need for such a tribunal or court arises from the severity of Russia's actions against Ukraine, which violate international law and the sovereignty of a nation-state. By setting up a specialized court outside the UN General Assembly, member states can collaborate more swiftly and efficiently to establish a legal framework focused specifically on addressing Russian aggression. This court, modeled after historic tribunals, benefits from a flexible structure allowing member states to contribute support, resources, and expertise based on their political capacity.

It must be noted that the preferred option for aggression accountability is a UN General Assembly backed Special Tribunal for Ukraine on the Crime of Aggression. 

A viable package has been put together that has an example of a UN General Assembly Resolution, a sample of a statute that creates the tribunal, as well as a practical "Seven Steps" for implementing the statute with a resulting indictment of Vladimir Putin and his senior military and political leadership.

Bottomline: we have done this type of tribunal before with the UN Special Court for Sierra Leone as an historic example.

It was a success and held a head of state accountable for international crimes. We can do it again with an international tribunal or court.

A Multinational Court for Ukraine would be tasked with identifying and prosecuting individuals or entities bearing the greatest responsibility for the aggression against Ukraine. Its mandate would involve meticulously examining the evidence, testimonies, and circumstances surrounding the conflict to ensure a fair and just trial process.

By holding those accountable who committed or ordered acts of aggression, this court aims not only to deliver justice, but also to deter future breaches of international law and prevent impunity. The charter of the Multinational Court for Ukraine might even mandate accountability for those countries that are aiding and abetting aggression against Ukraine, such as Iran, Belarus, and North Korea.

It must be noted that a UNGA backed Special Tribunal or a Multinational Court would be compliments to the important work of the International Criminal Court (ICC).  Working together exchanging  information, evidence, and a shared focus on accountability would enhance the capabilities of both justice mechanisms and bolster each of their investigations. 

These two options related to aggression accountability would not compete or interfere with the work of the ICC.

One of the primary advantages of a Multinational Court is its expedited setup - essential given the urgency of the situation. With a streamlined process and the support of any number of member states, this court could swiftly initiate its proceedings, investigate, and ultimately prosecute those responsible for the aggression against Ukraine.

Time sensitivity underscores the importance of promptly establishing a legal mechanism dedicated to addressing such acts of aggression. We live in a distracted and fractious world.

The political advantage of this court also allows member states to participate directly with the court in helping to draft a charter for the court, providing funding, equipment, and personnel or indirectly providing political cover and support to the workings of the court. 

The number of supporting states from both the global south as well as the north would be flexible with member states even joining after the charter is signed.  Member states could also join a management committee that would oversee the court’s operations. Ukraine would be an ex-officio member.

At both the IMT’s at Nuremberg and Tokyo there was a core group that created the courts and numerous supporting states that provided personnel and political cover, even sending observers and delegations.  These models worked and the Multinational Court would as well.

The court outside the UN system, even though consisting of member states, would shed the political baggage that exists around the creation of any court or tribunal by the UN.

The need for the world's democracies to confront Russian aggression against Ukraine stems from the fundamental principles that underpin democratic societies—values such as sovereignty, freedom, and the rule of law. Democracies are built on the premise of respecting the rights of sovereign nations and upholding international laws and norms.

By uniting to confront this aggression, democracies send a resounding message about their collective commitment to defending these principles. The aggression against Ukraine not only violates international law, but also challenges the very essence of democracy by undermining the autonomy and self-determination of a sovereign nation.

Confronting this aggression isn't merely about addressing a singular conflict; it's about safeguarding the global order based on democratic values. Failure to respond robustly could set a dangerous precedent, emboldening other actors to disregard international norms and encroach upon the sovereignty of other nations.

We can see this already in the Middle East as Iran flexes its autocratic muscle and causes unrest and conflict by (most likely) ordering and supporting the unprovoked attack by Hamas on Israel.

Moreover, democracies have a vested interest in maintaining stability and security on a global scale. Allowing unchecked aggression to persist threatens the stability of regions far beyond the immediate conflict zone. A strong and unified response by democratic nations isn't just a moral imperative, it's also a strategic necessity to prevent further destabilization and conflict by Iran, North Korea, and China.

The establishment of a Multinational Court for Ukraine on the Crime of Aggression by these democracies signifies their dedication to upholding the rule of law and ensuring accountability for those who violate it. It showcases the collective resolve of democratic nations to stand against aggression, demonstrating that these values aren't mere rhetoric but guiding principles that govern their actions on the world stage.

Ultimately, confronting Russian aggression against Ukraine is a testament to the unity and strength of democracies, showcasing their commitment to defending sovereignty, upholding international law, and preserving the stability and security of the global community under the United Nations paradigm put together in 1945.

The core challenge lies in overcoming head of state immunity, a legal shield protecting leaders like Putin from international prosecution.

Such immunity shields them from legal action in foreign or international courts while holding office. This creates a significant barrier to justice and accountability, rendering certain proposed solutions and options ineffective.

Certainly, exploring alternatives such as a hybrid domestic model or a regional court to address Russian aggression against Ukraine may seem appealing at first glance. However, these options, upon closer examination, reveal inherent limitations and obstacles that render them inadequate in addressing the core issue of holding those accountable, especially when dealing with a figure like President Vladimir Putin shielded by head of state immunity.

One alternative, a hybrid domestic model, while attempting to merge domestic and international legal frameworks, often faces jurisdictional challenges and lacks the necessary impartiality and independence to handle cases involving high-ranking officials from foreign nations. The complexities of international law and the political nature of such cases can lead to prolonged legal battles, delays, and ultimately, an inability to effectively prosecute individuals shielded by sovereign immunities.

Similarly, a regional court, while potentially more focused on the specific conflict, may lack the international consensus and authority needed to navigate complex geopolitical situations.

In cases involving head of state immunity, regional courts might face significant hurdles in asserting jurisdiction and enforcing their rulings, especially against President Vladimir Putin. The absence of the global south would also be a political problem and question this option’s legitimacy.

Establishing a Multinational Court for Ukraine on the Crime of Aggression by UN member states outside the General Assembly stands out as a more viable option due to its potential to address head of state immunity through the concerted effort and collaboration of multiple nations. This approach could transcend political smokescreens and focus on a specialized court with the necessary mandate to pursue justice without being hindered by diplomatic or jurisdictional constraints.

The establishment of a Multinational Court represents a critical step towards upholding international law, justice, and accountability.

Modeled after historical tribunals, this court's flexible structure and swift initiation could provide a platform for addressing the Russian aggression against Ukraine, while sending a powerful message about the global commitment to protecting the sovereignty and integrity of nation-states.

While other options might offer a semblance of addressing accountability for Russian aggression, they are inherently limited in their ability to overcome the significant legal hurdle of head of state immunity.

Thus, establishing a specialized multinational court, absent a UNGA back international tribunal, remains the most viable and effective path towards addressing Russian aggression against Ukraine and ensuring accountability for those responsible. Time is of the essence. 

An easily distracted world will walk away from Ukraine. This cannot be. Time and distraction are Vladimir Putin’s ultimate weapons. He knows that democracies loose focus over time (they did in Syria) and move on stepping over atrocity zones.  Putin is trying to wait us out and then pounce on Ukraine and other member states of the United Nations. In his mind Ukraine is only the beginning.  We have an historic moment to act under the rule of law, let’s not let this all slip through our fingers and ruin the geopolitics of the 21st century.

 

Publications in the Expert Opinion section are not editorial articles and solely reflect the authors' points of view.

The article is prepared with the support of the Ukrainian Bar Association.

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