The Best Path for Accountability for the Crime of Aggression Under Ukrainian and International Law

Примітка редактора: Ця стаття також доступна українською мовою тут.

As Russia continues to wage a horrific war of aggression in Ukraine, the question of how to prosecute the ongoing violation of the most fundamental criminal prohibition of the international legal order is on many diplomats’ and others’ minds. The issue of how to design a criminal tribunal for the crime of aggression has received extensive commentary in recent weeks.  In an earlier article for Just Security, we outlined the challenges posed by the Ukrainian Constitution and a 2001 decision of the Constitutional Court of Ukraine (CCU) to the creation of an accountability mechanism—and therefore to some of the leading proposals for creating a new court.  But what path should Ukraine and the international community take to achieve accountability?

The most promising way forward, under both Ukrainian and international law, is to create an international court by means of an international treaty between the government of Ukraine and the United Nations (UN), on the recommendation of the General Assembly (UNGA), for the purpose of trying the crime of aggression. Indeed, even if other policy reasons might count in favor of a different model, the model we identify has significant advantages, including that it avoids Ukrainian constitutional challenges and international legal constraints.

This approach would be similar to that taken in creating the Extraordinary Chambers in the Courts of Cambodia and, in important respects, the Special Court for Sierra Leone.  We recommend, moreover, that the President of Ukraine, members of the Verkhovna Rada (Parliament) of Ukraine, or the Cabinet of Ministers of Ukraine request the CCU review the treaty before it is submitted to the Verkhovna Rada for ratification. There are several reasons to favor this approach. 

First, unlike in a domestic court, head of state immunity and other status immunities would be inapplicable to a prosecution in an international court. Additionally, whereas there is some uncertainty as to the applicability of so-called “functional immunities” for officials in aggression prosecutions before domestic courts, such immunities would clearly not be applicable before an international court.  Tom Dannenbaum, writing for Just Security, explains that “prosecution outside of the national courts of the accused could implicate both functional immunities, applicable to all state officials for acts undertaken in their official capacity, and status immunities, applicable to sitting heads of state, heads of government, and foreign ministers.”  He concludes, however, that functional immunity would “be out of place in the context of an international crime that is by definition a state act,” (the crime of aggression); and even if functional immunity somehow applied, there’s reason to believe it would be limited to prosecutions before national, not international, courts. In addition, he shows that there is substantial support for the conclusion that status immunities do not apply to the prosecution of international crimes by international courts. He concludes that “[i]f it is correct to say that status immunities do not apply before international courts qua international courts, a court created by the General Assembly would have the strongest claim to that status.” In sum, Vladimir Putin and other members of the senior leadership in Russia would be unlikely to be able to rely on such immunities if prosecuted in an international court for the crime of aggression.

Second, an international court is preferable to a hybrid court for both international and domestic reasons.  First, any hybrid court would also face some uncertainty about whether status (and possibly functional) immunities would apply.  There is reason to think that they do not, insofar as the hybrid court can credibly be characterized as international. The SCSL invoked its international character in holding that Charles Taylor did not enjoy immunity even though he was the serving Head of State of Liberia at the time criminal proceedings were initiated. Nonetheless, the case is less clear cut than for an international court.  Second, depending on how it is designed, a hybrid court might violate Article 125 of the Ukrainian Constitution, which prohibits any “special or extraordinary court,” a topic we discussed in detail in our earlier Just Security article.

Third, creating the court through an agreement between Ukraine and the UN on the recommendation of the UNGA would ensure that the new court is on firm international legal ground and safeguard the court’s legitimacy.  Some have raised the concern that creating an independent ad hoc court could exceed the powers of the General Assembly. But that does not present a concern as long as there is an agreement with the state on whose territory the crimes were committed—here Ukraine. As noted above, there are two precedents for this approach.  The Extraordinary Chambers in the Courts of Cambodia were created by agreement between the United Nations and Cambodia, upon the recommendation of the General Assembly (the Chambers were domestic, not international, but the same procedure could be used to create an international court).  The Special Court for Sierra Leone was created by agreement between the United Nations and Sierra Leone, upon recommendation by the Security Council (which was not acting under its Chapter VII authority).   

Concluding an agreement between the UN and Ukraine to create a court has advantages over creating a special tribunal through agreement among a group of willing states. A tribunal created by a few states would not have the legitimacy of one created by an organization that represents the international community.  Some point to the International Military Tribunal at Nuremberg (IMT) as precedent, but it is important to note that the IMT was created before the United Nations was formed.  Indeed, the group of states that founded the IMT went on soon after to found the United Nations.  Today, a special tribunal formed by a group of states outside the United Nations is less likely to be viewed as legitimate.  Such a special tribunal would likely also face charges of selective justice. Some states may be wary, moreover, of creating a precedent that could be followed by other states with less defensible purposes.  After all, if Ukraine and a small number of like-minded states can create an international court, why could Russia and Belarus not do the same?

This approach also has advantages over a court concluded by agreement between Ukraine and the Council of Europe (CoE).  Kevin Jon Heller proposes establishing a hybrid tribunal under the auspices of the CoE–an “Extraordinary Ukrainian Chamber for Aggression” (EUCA). Heller’s proposal would take advantage of the CCU’s approval of an existing CoE institution–the European Court of Human Rights. But, as we explained earlier, the new kind of court he proposed is likely to run afoul of Article 125 of the Ukrainian Constitution. Heller, it is important to note, contests this characterization of Ukrainian constitutional law, arguing that the new court would fit within Part 4 of Article 125, which explicitly allows for the operation of “high specialized courts.” He notes that the High Anti-Corruption Court (HACC) falls into this exception (and, indeed, the Law of Ukraine On the High Anti-Corruption Court specifically identifies HACC as a “high specialized court”).  A new court to try the crime of aggression following this example would, he suggests, similarly avoid constitutional difficulty.  The HAAC currently faces constitutional challenge in the CCU, but assuming it survives that challenge, it is important to note key differences between Heller’s proposed EUCA and the HACC. The HACC is not a hybrid court but is a fully domestic court. Even though there has been substantial international involvement in its creation and operation, these efforts were in support of Ukraine’s own domestic process. There is no formal international authority over the court, direct international funding, or any non-Ukrainian judges (and, indeed, the Ukrainian Constitution expressly provides that only citizens of Ukraine can be appointed as judges in national courts and it requires that national courts must be funded solely from the State Budget of Ukraine).  Moreover, the HACC is a permanent court created to address a specific category of cases (corruption involving senior officials). The EUCA would presumably be a temporary court to try the crimes of aggression committed in the current war—and thus more likely to run afoul of Article 125.  Last, even if following the HAAC example by setting up a new domestic court with international support solved the constitutional concerns, it would create a new problem: Prosecutions in the new domestic court would face both status and functional immunities that are likely not available in an international court.   

A modified version  might be to create the court as an international court through a treaty between Ukraine and the CoE, rather than through a treaty between Ukraine and the UN.  But both Heller’s and this modified approach would face a challenging practical problem: each would require unanimity among the members of the CoE, including Hungary and Serbia. 

Fourth, creating the court through concluding a treaty between Ukraine and the United Nations ensures that the court will be consistent with Ukrainian law and provides a path to insulating it from future constitutional challenge. The Law of Ukraine on International Treaties of Ukraine provides that a treaty between Ukraine and the UN might be made subject to ratification by the Verkhovna Rada of UkraineAccording to the Ukrainian Constitution, treaties in force ratified by the Verkhovna Rada of Ukraine “shall be a part of the national legislation of Ukraine” (Art. 9). The Constitution provides, moreover for ex ante review by the Constitutional Court of Ukraine (CCU) of the international treaties submitted for ratification, “at the request of the President of Ukraine, or at least forty-five MPs of Ukraine, or the Cabinet of Ministers of Ukraine” (Art. 151). An ex ante determination by the CCU that the agreement is consistent with the Constitution, together with ratification of the treaty by Verkhovna Rada, would preemptively resolve any domestic legal concerns that may otherwise arise.

To avoid any constitutional concerns that may arise during ex ante review, the agreement between Ukraine and the UN should specify that the new court will be international, not domestic or hybrid (avoiding conflict with Art. 125). It should also specify that the court is auxiliary, not complementary, to the domestic courts (avoiding conflict with Art. 124) – matters we discussed earlier at Just Security.  

Fifth, while some prosecutions for the crime of aggression might go forward in domestic court under Article 437 of the Criminal Code of Ukraine, it is important not to rely exclusively on Ukrainian courts. First, as noted above, national courts may run into significant legal difficulties due to status and functional immunities for senior Russian officials. Second, the prosecution against former President Viktor Yanukovych has been criticized for proceeding in the absence of the defendant, and such trials in absentia generally are considered to raise human rights concerns. Any similar trials would likely meet similar international criticism and repel UN and foreign support.

Speaking alongside Ukrainian President Volodymyr Zelensky in Kyiv on April 9, President of the European Commission Ursula von der Leyen declared, “Will the right of might be the rule or will it be the rule of law . . . this is what is at stake in this war.”  Establishing an international court through an agreement between the United Nations and Ukraine would be an important step toward providing legal accountability for the crime of aggression and for the rule of law to prevail.

Photo credit: Constitutional Court of Ukraine 

The Best Path for Accountability for the Crime of Aggression Under Ukrainian and International Law