Working Together Toward Accountability: How the ICC and a Special Tribunal on Aggression Can Work Together on Ukraine

Accountability in law is a cornerstone for more stable societies. Both domestically and internationally holding those who step away from the law accountable deters the future perpetration of crimes. Justice mechanisms that work together bolster that effort and enhance efficiencies that breed confidence in assured justice.

Since the invasion by the Russian Federation into Ukraine, there has been broad-based and useful discussion by practitioners and the academy on how best to account for Russian aggression and consequent war crimes and crimes against humanity. The International Criminal Court (ICC) has stepped in with investigations at all levels regarding war crimes, crimes against humanity, and genocide, yet it is constrained by a jurisdictional challenge related to the crime of aggression. Other justice mechanisms are being considered to account for the aggression.

The various options being considered range from a hybrid arrangement with Ukraine, a regional European approach, and a United Nations-created international tribunal similar to the successful UN Special Court for Sierra Leone. Only the international approach avoids the jurisprudential challenges that arise with head-of-state immunity. This is significant and is causing the international community to lean towards an international tribunal. As the focus will be on a sitting president this immunity is significant and needs to be addressed.

Importantly, there are concerns about cost, efficiencies, and consensus. The international community will favor the effort that is efficient and managed effectively. The lessons learned in the creation of the UN Special Court for Sierra Leone show that an international approach such as a Special Tribunal for Ukraine on the Crime of Aggression can meet all these concerns. With the establishment of the Special Court for Sierra Leone, the international community set the cornerstone for similar efficient efforts for accountability, including the investigation, indictment, arrest, and prosecution of a sitting head of state for aggression, President Vladimir Putin.

The international community has made the important decision that President Vladimir Putin and his political and military leadership must be held accountable for the crime of aggression. How this is done remains open, yet the Republic of Ukraine strongly favors a UN-created international tribunal. The important indictment of President Vladimir Putin for war crimes and crimes against humanity last month by the ICC showed the world that the indictment of a sitting head of state for international crimes is the path forward for a more stable world order and to warn those tyrants and dictators who choose violation of law as a policy. This indictment by the ICC has changed history for the rest of the 21st century. 2023 will go down as the year democracies used the law to check aggression, war crimes, crimes against humanity, and genocide.

A Special Tribunal for Ukraine on the Crime of Aggression will be an important adjunct to the ICC’s efforts in seeking justice for the Ukrainian people. There are some who worry or are concerned that the creation of another justice mechanism will counter efforts by the International Criminal Court and lessen its stature as the world’s permanent international criminal court. These concerns are groundless as in fact having an aggression tribunal will enhance the ability of the ICC to do its work and show that two courts can work together to support one another in accountability for Russian crimes. One of us has detailed the means of a cooperative relationship between the aggression tribunal and the ICC, as well as funding options, https://www.justsecurity.org/83757/forging-a-cooperative-relationship-b….

The hard fact remains that the ICC cannot prosecute the most serious of those crimes—the aggression by the Russian Federation. Some argue that the Rome Statute can be amended to address this, yet that would take too much time to adequately deal with the current and ongoing aggression. Frankly, time is of the essence. An aggression tribunal must be created in 2023 to bolster the current indictment issued by the ICC.

Of note, this aggression tribunal will be mandated to work with the International Criminal Court. A draft UN General Assembly Resolution and creative statute, along with a strategic plan, put together by the Global Accountability Project (GAN), with other entities, contemplates a close working relationship with the ICC. The aggression tribunal will be required to enter into appropriate memoranda of cooperation and mutual support with the ICC. The plan put together by GAN has a liaison office that has personnel from both courts working in each other’s offices to insure investigators and trial counsel are sharing appropriate criminal information. The plan also requires the liaison office to create appropriate relationships with the European Union, NATO, and the Prosecutor General in Ukraine. The focus for all of this is mutual collaboration and cooperation.

With all this being said, it is now time to continue our international efforts to create the UN Special Tribunal for Ukraine on the Crime of Aggression with a clear aim of doing so in 2023. This will send an important signal to President Putin and all the other tyrants in the world that aggression is not a viable foreign policy tool. We should take heart, as we have put together a plan and we have a history that clearly shows that this can be done successfully, efficiently, and immediately. Let’s get started.