Friday, December 9, 2022

A Special Tribunal for Ukraine?

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By Steven van Hoogstraten, Former director Carnegie Foundation

A large part of the world is full of indignation about the military invasion by Russia in Ukraine. Even more so  about the terrible war crimes which are being committed against Ukrainian civilians and about the sham referenda in and the subsequent fake annexation of four Ukrainian regions by Russia.

The general mood is that perpetrators of war crimes and crimes against humanity in Ukraine should be held to account in a court of law, more precisely at the International Criminal Court in the Hague. The Prosecutor of the ICC, Kharim Khan, has started a process of investigations in Ukraine with the primary aim of collecting and validating as much evidence as possible. He did so at the request of no less than 39 member nations of the ICC, a request already made to him by the end of February 2022. In his endeavours he is receiving the active support of Eurojust, also in the Hague.

The road to international justice through the ICC is certainly not without promise, as Ukraine – while not a member of ICC – has accepted the jurisdiction of the ICC for this particular situation. As we all know, Russia is not a subscriber to the Rome Statute. The Accountability Conference in The Hague on 14 July 2022 , a ministerial summit at the joint invitation of the Netherlands Minister for Foreign Affairs and the European Commission, concluded that all efforts should be made to coordinate the various efforts which are now being deployed with the ICC in a prime role, on “pole position” so to speak.

At the same time, interestingly enough, there are strong calls for a different approach. While the ICC can investigate the personal responsibility for Russian (alleged) crimes, it can not at the present time look into the aggression by a state or of state officials  towards another state. For that purpose, a separate and independent tribunal is necessary in the eyes of many legal experts.

I mention an initiative led by former British PM Gordon Brown, supported by many well known names in the world of international  law, to come to the creation of a “Special Tribunal for the Punishment of the Crime of Aggression against Ukraine”[1]. International rules exist  to protect us from such aggressive actions, reflected in the Charter of the United Nations , which is “the closest thing we have to an international constitution “ . Rules which protect the political independence and the territorial integrity of a state, and which prohibit the use of force other than for defensive purposes.

These are the words of one of its proponents, professor Philippe Sands from London, in the Financial Times. Philippe Sands is a regular visitor of The Hague as an advocate before the Courts ( notably the ICJ and the PCA). In several media he has branded Putin’s use of force as a crime of aggression, as the waging of an illegal war, an idea that originated at the war crimes tribunals of Nuremberg and Tokyo as the famous “crime against peace”.

The call for a new Special Tribunal, that would work in cooperation with ICC and not take its place, has been supported openly by the Ukraine Minister of Foreign Affairs Dmytro Kuleba, by the European Parliament, and recently even by the Czech President of the Council of Ministers of the EU Johan Lipavsky (17 September) “after new mass graves were found in Ukraine”. But official reactions from EU members to the idea of a separate tribunal  have not been registered so far, neither from the United States. 

The decision how to proceed in the matter will not be an easy one, and it will notably be difficult to evaluate all the pro’s and con’s in a situation where the military invasion is still going on. The establishment of a Special Tribunal will have to overcome obstacles in the UN, where a permanent member can easily use its power of veto. Remember that the ICTY was the result of a resolution in the Security Council, with all major partners in favour.  Also, if such a special tribunal were to see the light of day, would that not block the lines of communication with Russia all together ? Would it promote a sustainable restoration of peace?

The Netherlands will have to make up its mind as well. Not only as to the subject matter of a Special Tribunal . But should The Hague again be appointed as the host city to such a tribunal, like was the case in so many instances before ? In my eyes, that would be a logical step, something that the world would expect. I was happy to read that the Netherlands Minister of Foreign Affairs was quoted as being open to the idea. In this context I assume that the notion of serving as the World’s Legal Capital should encourage the Dutch government to look at this question in a positive way.  Such an institution in The Hague will provide the best guarantee of a smooth cooperation with the International Criminal Court, which will be of the essence. Let justice prevail.


[1] Declaration by Gordon Brown and others of 28 February 2022

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