Eric Chang on “Why Ukraine Is Calling for a Special Criminal Tribunal to Prosecute Putin”

Eric Chang’s latest contribution to our series on the Ukraine crisis discusses the range of legal actions being taken by the Ukraine against Russia, and makes the case for a Special Tribunal.  Ukraine is proving itself to be not only formidable on the battlefield, but also a sophisticated lawfare practitioner in courtrooms.

Here’s Eric:

Why Ukraine Is Calling for a Special Criminal Tribunal to Prosecute Putin*

by Eric Chang

On 3 March 2022, a group of lawyers, academics, and politicians called for a special international criminal tribunal (“Special Tribunal”) to investigate and prosecute Vladimir Putin and others for the international crime of aggressive war (also known as the crime of aggression, or crime against peace) against Ukraine. The declaration, led by, amongst many others, Gordon Brown, the former Prime Minister of the United Kingdom, is supported by Ukraine, through its Foreign Minister, Dmytro Kuleba.

The call to create a Special Tribunal is the latest salvo in Ukraine’s legal blitzkrieg against Russia, launched after the 2014 invasion and occupation of Crimea. The numerous proceedings are brought before a veritable alphabet soup of international tribunals and organizations, begging the question: why does Ukraine feel the need to stand up another ad hoc international tribunal?

This article provides a high-level explanation of the motivations behind the call for a Special Tribunal, the various other ongoing proceedings before existing international tribunals and/or organizations, and the differences between these tribunals/organizations, and the proposed Special Tribunal. As explained below, the different functions and capabilities of these tribunals and organizations complement each other, and, together, cover existing gaps in international law that current tribunals cannot fill.

A Special Tribunal Inspired by the Nuremberg Tribunal

The 3 March 2022 call for a Special Tribunal to punish the crime of aggression against Ukraine was released through Chatham House, a leading international affairs think tank. Chatham House held a remarkable online event (recording available here) on 4 March, during which Minister Kuleba – joining in on his phone while in a car – declared Ukraine’s support for such a Special Tribunal.

This new criminal tribunal takes its inspiration directly from the International Military Tribunal at Nuremberg, colloquially known as the Nuremberg Tribunal. At the end of the Second World War, the victorious Allied Powers established the Nuremberg Tribunal to try and convict Nazi leaders.

Article 6 of the Tribunal’s Charter established three crimes for which persons could be prosecuted: (1) crimes against humanity; (2) war crimes; and (3) the crime of aggressive war. The Nuremberg trials also introduced for the first time the term genocide, and marked the first-ever prosecutions for genocide.

As stated in the 3 March declaration (and as explained below in greater detail), the Special Tribunal would focus exclusively on the crime of aggression. The declaration calls for the Special Tribunal’s constitution on the same basis as the Nuremberg Tribunal, empowering the Tribunal to investigate acts of violence by Russia in Ukraine, and whether they constitute the crime of aggression.

Crucially, the declaration calls for participating countries to “grant jurisdiction arising under national criminal codes and general international law” to this dedicated Special Tribunal, and to “confer on such a tribunal jurisdiction to investigate both the perpetrators of the crime of aggression and those who have materially contributed to or shaped the commission of that crime.”

This paragraph is significant for two reasons. First, Ukraine would likely agree to delegate its national jurisdiction to the Special Tribunal (this was discussed during the Chatham House event attended by Minister Kuleba). Under the Ukrainian Criminal Code (Article 437), the crime of aggressive war is explicitly prohibited. Thus, the Special Tribunal could prosecute individuals for the crime of aggression under Ukrainian law, as well as under international law.

Second, the declaration makes clear that the Special Tribunal would prosecute not only those who are directly responsible for the aggressive war – this would obviously include President Putin and his Foreign Minister, Sergei Lavrov (whose Nuremberg equivalent was German Foreign Minister Joachim von Ribbentrop) – but also those who are aiding and abetting the war, which could include, for example, various oligarchs and senior corporate officers in various key industries.

(The Nuremberg Tribunal tried and convicted senior corporate officers of several German businesses, including IG Farben, Krupp, and Flick, who provided weapons and financial assistance to the Nazi war effort; notably, IG Farben manufactured the Zyklon B gas used in Nazi concentration camps). Article 437 of the Ukrainian Criminal Code also penalizes conspiracy to commit an aggressive war, further extending the reach of the crime of aggression.

Ukraine’s Lawfare Against Russia

The call for a Special Tribunal forms part of Ukraine’s “lawfare” campaign against Russia. (See a previous post explaining the concept of lawfare, and Ukraine’s use of lawfare to counter Russia’s occupation of Crimea here.) Since the 2014 Russian invasion and occupation of Crimea, Ukraine has launched or encouraged a barrage of international proceedings against Russia. This includes, in part, the following:

• • Several inter-State proceedings before the European Court of Human Rights (ECtHR), including a recent application, 11055/22, Ukraine v. Russia (X), seeking interim measures against Russia for alleged massive human rights violations being committed by Russian troops in Ukraine. On 28 February 2022, the ECtHR granted an emergency interim measure, calling for Russia to refrain from further military attacks against civilians and civilian objects;

• • Over 6,500 individual applications filed by Ukrainian citizens against Russia to the ECtHR alleging human rights violations arising out of the conflict in Crimea and in eastern Ukraine from 2014 onwards;

• • An application to the International Court of Justice (ICJ) regarding Russia’s alleged violation of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination. This application arises out of Russia’s supply of arms, financing, and training for separatists in the Donbas region, and which led to the attack on Malaysian Airlines Flight MH17 in July 2014;

• • A more recent application to the ICJ regarding Russia’s violation of the Convention on the Prevention and Punishment of the Crime of Genocide (“Convention on Genocide”). In this application, Ukraine alleges that Vladimir Putin’s casus belli for invading Ukraine was based on false claimed acts of genocide against ethnic Russians in the Donbas region of Ukraine, and further, that it is in fact Russia that is “planning acts of genocide in Ukraine.”

• • Eleven investment treaty claims brought by Ukrainian investors against Russia under the Russia-Ukraine Bilateral Investment Treaty, alleging breaches of the investment treaty arising out of the invasion and occupation of Crimea (see my prior article for a list of the claims).

• • Finally, declarations under Article 12(3) of the Rome Statute of the International Criminal Court (ICC), under which Ukraine voluntarily accepted the jurisdiction of the ICC in order to allege war crimes and crimes against humanity committed in Crimea from 2013-2014, and 2014 onwards.

On 2 March 2022, the ICC received a remarkable 39 referrals from ICC State Parties to open an investigation into the current situation in Ukraine, requesting the ICC’s Prosecutor to look into allegations of war crimes, crimes against humanity and genocide from 2013 onwards (thus encompassing the current invasion). These 39 simultaneous referrals are unprecedented in ICC history, and will act to expedite the ICC Prosecutor’s investigation.

Ukraine’s support for a Special Tribunal would add one more tribunal to the ongoing applications or proceedings. Given this, the question arises as to why Ukraine believes an additional Special Tribunal is necessary.

A Special Criminal Tribunal Would Fill a Gap in International Law

All of the described proceedings share an overall factual nexus, in that they involve Russia’s military invasion of Ukraine (and, in Crimea’s case, its occupation).

However, most of the organizations listed above do not deal directly with criminal prosecution arising out of war. For example, using a domestic law analogy, the ICJ is more akin to a civil or administrative court than a criminal court; it adjudicates legal disputes between States, and does not criminally prosecute war crimes.

While the current ICJ application will interpret the Convention on Genocide and possibly make important findings as to whether Russia’s allegations of genocide are false, no criminal prosecution will arise out of that proceeding. Likewise, the ECtHR, while dealing with war-adjacent issues of human rights violations, does not prosecute and imprison individuals.

As regards applications brought by individual Ukrainian citizens against Russia, the ECtHR provides for pecuniary damages (which are usually relatively modest) to compensate applicants who have suffered human rights violations. Importantly, the purpose of the money damages is to compensate the victim, and not to punish the State responsible for the violation.

The ECtHR can also hear inter-State applications, such as the one Ukraine has brought against Russia. Although the ECtHR can, and has, issued interim measures preventing further military attacks by Russia, it is unlikely Russia will heed the Court’s injunction; certainly, Putin will not personally suffer consequences from any such interim measures.

In a similar vein, investment treaty tribunals adjudicate claims of investment losses arising out of Russia’s occupation of Crimea; while those damages can also be considered “war-adjacent,” and can be very significant (reaching billions of US dollars), they compensate for an investment loss, and are not meant to criminally punish.

From the list above, the only organization that has true criminal prosecutorial powers is the ICC. Importantly, the ICC prosecutes individuals, not States. In principle, the ICC can investigate and prosecute individuals for four crimes:

• • Genocide. Article 6 of the Rome Statute defines genocide as the specific intent to destroy a national, racial, religious, or ethnic group. This includes killing, causing serious bodily harm, infliction of conditions of life calculated to bring about the group’s physical destruction, imposing measures to prevent births within the group, or forcibly transferring children of the group to another group.

• • Crimes against humanity. Article 7 defines this crime as a list of acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The acts include, murder, extermination, enslavement, deportation, imprisonment, torture, rape, sexual slavery and other forms of sexual violence, persecution against certain groups, enforced disappearances of persons, the crime of apartheid, and other inhumane acts meant to intentionally cause great suffering or serious injury.

• • War crimes. Article 8 defines war crimes as grave breaches of the Geneva Convention of 1949, which regulates the conduct of armed conflict. Breaches include willful killing, torture or inhumane treatment, extensive destruction and appropriation of property that is not justified by military necessity, mistreatment of prisoners of war, intentionally directing attacks against the civilian population, and attacks against certain protected buildings such as hospitals.

• • Crime of aggression. Since 2018, the ICC can prosecute the crime of aggression. Article 8 bis defines the crime of aggression as the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. United Nations General Assembly resolution 3314 (XXIX) defines the crime of aggression; qualifying acts include: invasion by an armed force of one State into the territory of another State; bombardments or blockades by one State against another State; attack by the armed forces of one State against the armed forces of another State; the action of a State to place at the disposal of another State to perpetrate an act of aggression; and the sending of armed bands, including mercenaries, to carry out acts of aggression. Finally, Article 8 bis states that the crime of aggression must be committed by persons in positions of senior political or military leadership.

On the crime of aggression, however, the ICC is constrained by some important ­­­­limitations. The first constraint is temporal: while the first three crimes were included in the Rome Statute that stood up the ICC in 2002, the crime of aggression was more contentious, and was not fully included until 2017, via a separate resolution. Second, the ICC defined the crime of aggression narrowly to “manifest” violations of the UN Charter, measured by character, gravity, and scale.

Third, only individuals in positions of senior leadership may be prosecuted. Fourth, the ICC only has jurisdiction in crimes that are committed by a State Party against another State Party, or where the UN Security Council refers a matter to the ICC. Fifth and finally, ICC jurisdiction is further limited to those State Parties that have ratified the aggression amendment (only 35 of 123 State Parties have ratified this amendment).

These last two jurisdictional limitations mean that the ICC has no jurisdiction over Russia for the crime of aggression, because Russia is not a State Party to the Rome Statute; further, as Russia is a permanent Member of the UN Security Council, there is no possibility that the Security Council would ever vote to refer the matter to the ICC.

(There are no similar jurisdictional issues to the charges of war crimes, crimes against humanity, and genocide, which may be prosecuted on the basis that they occurred in the territory of a State Party. Because Ukraine has voluntarily accepted ICC jurisdiction, the Court may exercise its jurisdiction over these charges.)

The upshot is that there is currently a gap as relates to the crime of aggressive war. This gap explains the call for the constitution of a Special Tribunal, whose sole focus would be to prosecute the crime of aggression. As noted above, the Nuremberg Tribunal would provide the template and precedent for such a tribunal.

Fittingly, the concept of aggressive war (or “crimes against peace,” as it was then known) was first introduced in the Nuremberg Statute; indeed, it was a distinguished Soviet jurist, Aron Trainin, who persuaded the Americans and British to include this crime in the Nuremberg Statute and the indictments against the Nazi German defendants.

Thus, such a Special Tribunal would complement the work of the ICC Prosecutor, who would focus on the remaining three charges of genocide, war crimes, and crimes against humanity. For its supporters, a Special Tribunal to prosecute the crime of aggression is particularly important, because it may be much easier to establish responsibility for Russia’s aggressive war, as compared with the other crimes under Article 5 of the Rome Statute.

Detractors of a Special Tribunal point out that the Nuremberg Tribunal was set up in mid-1945, when the Allies were fairly certain of victory over the Nazis. In the case of Ukraine, the much smaller chance of a Ukrainian victory over Russia means that, practically speaking, all of the suspects and evidence would remain in Russia, which would obviously refuse to hand over such evidence, or the accused perpetrators for that matter.

The critique is that effective investigation and prosecution requires regime change in Russia. In such a case, a Special Tribunal would not be necessary, since a new Russian regime would presumably agree to ratify the Rome Statute and accept its crime of aggression amendments. (Note, however, that such a ratification would also require a further declaration under Article 12 of the Rome Statute to accept jurisdiction over Russia’s crime of aggression, thus getting around Article 11’s temporal jurisdictional limitations, under which the ICC normally only exercises jurisdiction with respect to crimes committed after the entry into force of the Statute for a given State.)

Conclusion 

The current push to set up a Special Tribunal is currently being discussed by EU countries. The US has not, so far, taken an official position on this – contrasting with its leading role in creating the Nuremberg Tribunal. This is logical, since, unlike World War II, the US is not currently a direct participant in the military conflict between Russia and Ukraine, and is less directly impacted by the conflict than EU member States.

Generally speaking, the US had adopted a case-by-case approach on whether to support special international criminal tribunals. Relatedly, the US has never ratified the Rome Statute, given concerns about US Servicemembers in Iraq and Afghanistan, as well as senior US officials, being subjected to the jurisdiction of the ICC.

Indeed, the US objection to the ICC even extends to its refusal to support ICC investigations not involving the US. This raises the interesting question of whether the US will maintain this stance vis-à-vis Russia and Putin as relates to the current ICC investigation, or make an exception. Presumably, there may be fewer objections by the US to a one-time tribunal set up specifically to prosecute Putin. In such a case, US support could help coalesce broader EU and international support for a Special Tribunal. 

About the Author

Eric Chang is a Captain in the U.S. Army’s Judge Advocate General Corps, Reserve Component, currently serving on active duty at the Office of the Staff Judge Advocate, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC. In his civilian capacity, he maintains a practice focusing on international investment law, international arbitration, and also serves as arbitrator in cross-border dispute resolution matters.

Disclaimers

* The views expressed herein are those of the author. They do not necessarily represent the views of the Department of Defense, the Department of the Army, the Judge Advocate General’s Corps, or any other governmental or non-governmental agency.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.  

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!