The Case for Creating a Special Tribunal to Prosecute the Crime of Aggression Committed Against Ukraine

[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.]

The prospect of creating the Special Tribunal for the Crime of Aggression (STCoA) is not as daunting as it may seem. The United Nations has essentially done this before when it negotiated and established of the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Granted, neither of these tribunals had authority to prosecute the crime of aggression, which would be the sole crime of the STCoA. The SCSL was empowered to prosecute war crimes and crimes against humanity, and the ECCC had jurisdiction over war crimes, crimes against humanity, and genocide. Each tribunal also could prosecute select domestic laws relative to the atrocity situation under investigation.

Nevertheless, the tribunals owed their legal existence to an international treaty entered into between the U.N. and the respective government, namely the Sierra Leone Government in the case of the SCSL and the Cambodian Government in the case of the ECCC. This involved (1) drafting a constitutional statute of the tribunal that was enacted into domestic law by the national government, and (2) drafting the U.N. treaty that would incorporate the statute. The judges of each tribunal drafted their respective rules of procedure and evidence.

Once established, the STCoA would enjoy support from both the United Nations, acting through the Secretary-General and the General Assembly, and the Government of Ukraine. That legitimacy can prove extremely important in bringing political and military leaders to justice under international and Ukrainian criminal law for the crime of aggression, and for influencing how the International Court of Justice (ICJ) might someday rule on the state responsibility of Russia, and perhaps Belarus, for a war of aggression against Ukraine. The ICJ relied on the International Criminal Tribunal for the former Yugoslavia’s (ICTY) convictions of genocide at Srebrenica to determine Serbia’s violations of the Genocide Convention by failing to prevent genocide at Srebrenica or to transfer Ratko Mladic, a top indictee charged with genocide and complicity in genocide at Srebrenica, to ICTY custody to stand trial. The findings of a special U.N.-backed criminal tribunal regarding the crime of aggression against Ukraine would likely carry similar weight in prospective ICJ deliberations.

The detailed provisions of the STCoA statute can readily draw from counterpart language and ideas in the SCSL and ECCC statutes, and from the Rome Statute of the International Criminal Court (ICC), the statutes of the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the Special Tribunal for Lebanon (STL). The negotiating exercise between U.N. lawyers and Ukrainian officials should be manageable and concluded within a matter of weeks. 

This series has already addressed the urgent need and cogent rationale for the STCoA and some of its defining features such as jurisdiction and structure. Here, I raise some additional considerations, including information sharing, victim participation, and outreach efforts. I provided a detailed discussion on these points during the Yale Club roundtable on June 22, 2022.

Features of the Tribunal

1. Sharing of Classified Information

Because the crime of aggression is a “leadership crime” and the relevant decisions are made at the highest levels of government, military, and sometimes business, it is essential that the STCoA statute include provisions that permit it access to and use of, if only as lead evidence, classified information delivered to the prosecutor by various governments, with conditions. The Rome Statute (Articles 54(3)(e) and 72), the ICC Rules of Procedure and Evidence (Rule 82), and the ICTY Rules of Procedure and Evidence (Rule 70) can serve as useful models.

2. Witness Protection

The STCoA will differ in some respects from other international tribunals with regard to witness protection. Those who have witnessed political and military leaders plan and execute the crime of aggression will have been personally close to the high-level decision making process at the time and may need tailored protection. There should be innovative thinking after the STCoA is established as to how it can provide adequate protection for these witnesses, including until long after trials have concluded. For example, this could be a supportive government undertaking covert operations to extract the witness and close family members from Russian territory, establishing secret sanctuary residence outside of Russia, and providing financial support for the duration of their lives. Rule 29 of the ECCC’s Internal Rules can provide guidance on protective measures. The witness protection provisions of the STCoA’s statute should be drafted in a way to incentivize witnesses to come forward and contribute valuable information for either incriminating or exculpatory purposes.

3. Outreach

The STCoA very likely will be widely covered by the media, so there will be less need for the tribunal itself to spread word about its proceedings among the general public. However, given the nature of the STCoA’s work and the Russian Government’s use of propaganda, it is reasonable to anticipate that disinformation and misinformation will become a major issue for the STCoA. The STCoA statute need not address details, but outreach within Russia about the work of the STCoA will be necessary. Following its establishment, the STCoA should develop a sophisticated strategy, one that is particularly geared towards social media that penetrates Russian society. The tribunal also should have a portal on its website so that individuals with relevant information can contact the prosecution office.

4. Standing Defense Unit

Most of the defendants for the crime of aggression would be very high-level individuals and retain top defense lawyers to represent them. However, a defense unit can deal with uncooperative defendants or obtain counsel for a defendant who cannot afford legal representation.

5. Victim Participation

There may be limited utility for a provision in the STCoA’s statute on victim participation mirroring that found in the ICC Rules or the ECCC Internal Rules because the atrocity crimes within their subject-matter jurisdiction victimize individual human beings, while the crime of aggression primarily victimizes States. Yet, at another level, victims – civilians and soldiers on both sides —  survive atrocity crimes and the whole war. It could be impracticable to have all such victims participate, while at the same time, their voices must be heard. Groups and associations representing the victims could play a constructive role, and no doubt any STCoA prosecutor would want to work with those groups to give voice to the suffering that has been inflicted. Russia’s decision to wage an aggressive war has an enormous impact on the lives of individuals and their participation could be an essential part of the proceedings, which might otherwise run the risk of becoming abstract and overly legalistic. A simple format for victim participation should be the goal. Perhaps the STCoA, which we envision to be located in The Hague, could hold some of its trials in Ukraine and enable the Ukrainian public, so many of whom are direct victims of the military conflict, an opportunity to personally witness the trials. On that front, more than 240,000 Cambodians attended the ECCC trial proceedings in Phnom Penh and that experience could serve as a model. Options outside of the STCoA also could be pursued. Victims likely will have the opportunity to participate in ICC proceedings on atrocity crimes committed in Ukraine and those crimes are the progeny of the crime of aggression. Ukraine also could establish a Truth and Reconciliation Commission running parallel to the STCoA, giving victims wide latitude for providing testimony and benefiting from the truth-seeking practices of such a body.

6. Pre-Tribunal Evidence

It is imperative that the STCoA’s statute have provisions on evidence collected prior to its establishment, which could be similar to Article 19 of the STL Statute.

7. Trials in absentia 

Given the likelihood that Russia’s political and military leaders, including Vladimir Putin, may seclude themselves on Russian territory and be shielded there for the rest of their lives, the issue of trials in absentia is important to consider. The Ukrainian criminal procedure code permits trials in absentia. The STL is the only international tribunal that has allowed such trials (Article 22 of the STL Statute). Negotiators for other international tribunals rejected the idea on fair trial grounds. Rule 61 of the ICTY Rules of Procedure and Evidence could serve as a model as it is anticipated that some of the accused may be beyond the STCoA’s reach. There could be a procedure by which the prosecutor could at least present the evidence publicly without the accused person being present, followed by a trial if and when the individual were eventually arrested and brought to The Hague.

8. Reparations and Seizure and Freezing of Property

The STCoA would not be the forum in which to address the overall prospect of Russian reparations for the damages inflicted on Ukraine during the war of aggression, which currently are estimated at nearly $350 billion. Reparations will fall within Russia’s state responsibility and likely will be relevant for the ICJ and other civil proceedings, as well as political negotiations with the Russian Government. Some of the defendants before the STCoA may be among the richest of the Russian oligarchy who backed Putin’s war and will have personal assets worth pursuing as penalties. The STCoA should have the option of seizing the assets of convicted persons, similar to what Article 77 of the Rome Statute permits.

Conclusion

Timing is everything. States must not perpetually draw out this historic task. Evidence can be impaired during a delayed process of decision making on tribunal design. The deterrent value of the tribunal can have a very short shelf life. The memories of witnesses fade with time and documents have a way of disappearing. The STCoA has a vital role to play for the people of Ukraine and for the peoples of other nations who should never be subjected to the death, injury, and destruction that accompany the crime of aggression.