The understanding that those responsible for the aggressive war against Ukraine should be held accountable appeared long before the full-scale invasion. Read more in the exclusive blog for the Channel 24 website.
At the end of February 2022, this rhetoric intensified, but is there a single vision for the future of the court, or are we ready to accept any surrogate?
What and for whom: special tribunal jurisdiction
The future court will be an independent ad hoc institution created to deal exclusively with the Ukrainian case. Its subject matter jurisdiction will be limited to the crime of aggression. With accountability for other international crimes, there are no problems in theory: there are Ukrainian courts, foreign ones with universal jurisdiction, and finally, the International Criminal Court.
Any ideas to create a special court for war crimes, a “special juvenile court”, a special court for dictator Vladimir Putin and, probably, a “court” for Alexander Lukashenko look hype, but they are not legally feasible.
The special tribunal will have the competence to bring to justice Putin, Lukashenko, Lavrov, and other high-ranking officials, provided that they are properly educated, which will allow them to ignore their immunities and privileges. The special tribunal will consider aggression starting with the occupation of Crimea in 2014.
Why not the ISS: especially for Karim Khan
Recently, even in the resolutions of regional organizations, provisions seem to appear only for the ISS prosecutor, who is concerned about the authority of his court. Supporting paragraph 5 of the resolution of the European Parliament of January 19, 2023, it should be repeated that the special tribunal will have little effect on what remains the “sleeping beauty” even after the adoption of the Kampala amendments.
The credibility of the ISS with regard to the crime of aggression is undermined, first of all, by the lack of political will on the part of the Member States, which have skeletons in the closet of their own history. In the end, it is impossible to “start” the jurisdiction of the ISS, because:
- how will the ISS hold responsible officials of states that have committed aggression, but are not members of the court, against a state that is also not is a member (the impossibility of such an option is expressly provided);
- The Security Council will never vote to recognize that Russia is committing aggression against Ukraine. Accordingly, this crime will not be submitted to the ISS for consideration at the initiative of the ISS prosecutor and the Security Council itself;
- the question is whether the retroactive effect in time will be “amazing” ratification by all states of the necessary international treaties;
- what to do with aggression that continued until the entry into force of the Kampala Amendments.
Additionally: neither the statements of the Verkhovna Rada on the recognition of the jurisdiction of the ISS, nor the decisions of the court itself and the Office of the Prosecutor, obviously, include the crime of aggression in the circle of subject competence. And Karim Khan's position is similar to Olaf Scholz's – he wants to help, but not too much. balance of the interlocutor for 5 repetitions. Lack of understanding of what kind of elephant and for what money leads to hysteria.
On the one hand, it seems reasonable to propose a general framework for a special tribunal, and then string functionality on it. After all, the core goal of Ukraine is to ensure justice for the victims and non-repetition of the crime, and not what bench Putin and Lukashenko will sit on.
Therefore, Ukraine provides scope for finding a compromise: international, hybrid or mixed, universal or regional, Ukrainian or foreign judges, Ukrainian procedure, ISS standards, etc. Finally, our state is a victim of aggression during which international law has undergone a crushing devaluation. Therefore, one should not get hung up on any of the current models in history, one can turn into a “trendsetter”.
But on the other hand, the unknown is frightening. Although the ad hoc tribunal will not set a precedent, it will intensify the search for justice by other states affected by aggression. Therefore, one can understand the position, for example, of South Africa in the UN General Assembly: the country supports Ukraine, but hesitates whether to support the creation of Pandora's box.
Would it expand the coalition for a special tribunal to include in the relevant resolutions at least the concepts, and better, the statute and the rules and procedures of the court? The answer is ambiguous. But the threat of the current situation is concrete.
An agreement on a special tribunal, even at the international level and even with broad support, does not mean anything without its implementation in the activities of this special tribunal. Creating an incomprehensible thing can take an incomprehensible amount of time. And this is a vicious circle of devaluation of international law.
Who really needs a special tribunal
A special tribunal is strategically important. It is an indispensable component of the development of the world, guarantees of non-recurrence, restoration of justice and compensation for harm. In theory, Russian assets could probably have been transferred to Ukraine under the court's order for interim measures. The special tribunal was needed after Crimea, but Ukraine received a holey sanctions regime and a holey sky through which drones and missiles fly today.
Does the special tribunal need only Ukraine? No, it is needed by the international community in order to salvage the remnants of international law and order and security. In addition, the special tribunal will become a litmus test.
If the story of the case of Georgia in the ISS repeats itself, and the world spends millions on an institution where Themis will meet with “Vanka”, and not Vladimir and Alexander, the UN should be immediately dissolved and prepare for the era of world war, because the right of force will dominate, and not international law.