The establishment of a special tribunal in The Hague to deal with the crime of aggression against Ukraine is necessary, says international law expert Oona A. Hathaway from Yale Law School in an interview with ntv.de. This would not only be a message to Putin, but also a warning to other states not to wage illegal wars of aggression.
ntv.de: Benjamin Ferencz, the last living chief prosecutor of the Nuremberg trials, called Russia’s war in Ukraine “the most outrageous case of a crime of aggression in decades”. How has our idea of ??a war of aggression changed since the Nuremberg trials?
Oona A. Hathaway: The Nuremberg Trials were the first time in history that crimes against the peace were tried in court. It was about waging an illegal war. In 1928, 15 countries signed the Briand-Kellogg Pact in Paris. This laid the foundation for outlawing war. This later made it possible to hold the Germans and – in a separate trial – the Japanese accountable for waging an illegal war.
The basis for defining a crime against peace, or rather a crime of aggression, has since changed. Today we rely on the United Nations Charter, created in 1945. It prohibits states from using force against each other unless they are acting in self-defense or have been authorized by the UN Security Council to use force. So a crime of aggression is an illegal war that violates the UN Charter.
Foreign Minister Annalena Baerbock called for a special tribunal during her visit to The Hague. However, the International Criminal Court (ICC) is already investigating possible war crimes in Ukraine. Why a new format?
The International Criminal Court has no jurisdiction over the crime of aggression against Ukraine. Neither Russia nor Belarus have ratified the Rome Statute – as the contractual basis of the ICC is called. The ICC’s investigation into Russia relates to the prosecution of individuals for genocide, war crimes and crimes against humanity. So if we want to hold Russia accountable for the crime of aggression against Ukraine as a whole, there has to be a special tribunal.
Do you see enough international political will to set up such a tribunal?
The biggest challenges are political, not legal. Ideally, there would have to be a vote in the UN General Assembly. She should recommend UN Secretary-General António Guterres to reach an agreement with Ukraine to set up such a special tribunal. This would require the consent of a majority of states in the General Assembly. So far she has twice overwhelmingly condemned Russia’s illegal aggression, 141 on the first vote and 143 on the second, with just five votes against in both cases. But now there is another step to take. This is really about developing the political will to act.
So far there have been no signs that the US government will do anything about it.
I think there is an understanding that the US cannot take the lead on this issue. This is partly because they themselves have not ratified the Rome Statute. There was also a dispute between the Trump administration and the International Criminal Court. I think there are concerns that it might seem hypocritical for the US to take the lead in setting up such a special tribunal now. However, they did not oppose this initiative. And that is indeed a very important step. Beth Van Schaack, the US Special Representative for Global Criminal Justice, also recently signaled the US willingness to cooperate with the ICC at the Assembly of States Parties in The Hague.
Britain has proposed a “hybrid” tribunal that would be integrated into Ukraine’s national judicial system and could be reinforced with international elements.
The problem with a “hybrid” tribunal would be that if established within Ukraine’s court system, personal immunity would still apply to the head of state, prime minister and foreign minister of the offending country.
Does this mean that Putin, Lavrov and Lukashenko could not be brought to justice?
Yes, it would not be possible to take the highest level of management to court. Some European countries seem to prefer this “hybrid” approach. But I fear the danger is that Putin would then be out of the game. And that would be a really terrible signal. We would bring to justice those sitting at the lower levels of decision-making, but not those most responsible for the war. That would be really tragic.
Wouldn’t there be personal immunity in an international format?
If it were an international tribunal established by an agreement between the United Nations and Ukraine on the basis of a recommendation from the UN General Assembly, personal immunity would not apply. Putin, Lavrov and Lukashenko would not be protected.
But they would certainly remain out of reach in Russia and Belarus.
Will we ever see these people in the dock? What are the chances that they will actually be brought to justice? Realistically, these chances are not great. But they are not zero either. Bringing someone like Putin or Lavrov to justice would likely require regime change in Russia. That doesn’t seem very likely at the moment, although not impossible.
But even if they are never extradited, an indictment, an arrest warrant and the fact that their assets can be frozen would send a really important message to the world. Not only to Russia, not only to Putin and Lavrov. But to everyone else. The message that what they are doing is not just wrong, it is criminal, that they will be prosecuted, and that they will be held accountable for waging an illegal war of aggression. And even if we can’t physically put them in the dock, they’ll never play a major role in international politics or travel freely again. That would send a really powerful message to other leaders – a message that such behavior is unacceptable and that anyone will be held accountable if he or she decides to follow Russia’s example and wage an illegal war of aggression.
How complex would such a procedure be?
The idea would be to create a relatively compact dish. It would have a single purpose: to prosecute the crime of aggression committed by Russia and Belarus in Ukraine. Evidence of this crime is not nearly as difficult to gather as for war crimes, genocide, or crimes against humanity. The number of defendants facing this court would be relatively limited as this is an executive-level crime.
What concrete steps do you expect in the coming months?
There are already relevant precedents at the UN. One of them are Extraordinary Chambers in the Courts of Cambodia. The other is the Special Court for Sierra Leone. In the first case, the UN General Assembly voted to recommend the establishment of this court. The UN Secretary-General then worked with Cambodia to set it up. In the second case, the UN Security Council recommended the establishment of such a court, but did not make use of its powers under Chapter VII of the UN Charter.
Crucially, the authorities in Kyiv must give their consent to the tribunal. There should be a corresponding agreement between Ukraine and the United Nations.
Wouldn’t negotiation as a means of ending this war be totally eliminated if such a tribunal were set up too soon?
The criticism that international criminal justice can delay the end of a conflict is well known. In this case, however, it is far less justified than in others. The International Criminal Court is already investigating Russian officials for war crimes, crimes against humanity and genocide. You will be held accountable one way or another. What we need now is a court capable of prosecuting the “mother” of all these crimes, namely the crime of aggression. Because without this crime, the other crimes would not have been possible.
They propose not only a special tribunal, but also possible changes to the Rome Statute.
Yes, such changes would give the ICC jurisdiction over the crime of aggression when committed by nationals of states that are not parties to the Statute. But any change to the statute could take years.
The international community is focused on the alleged crimes committed by the Russian armed forces. But there are also allegations against the Ukrainian side, especially with regard to the treatment of prisoners of war. What could be improved in investigating such cases?
That is part of what the International Criminal Court should investigate. And he probably does too. I expect the Court to investigate any plausible allegations against either side.
With Oona A. Hathaway speaks to Ekaterina Venkina
