- Current political and economic issues succinctly explained.
[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.]
The proposal for a Special Tribunal for the Crime of Aggression (STCoA), one with singular jurisdiction to investigate and prosecute individual leaders responsible for the Russian military’s aggression against Ukraine, has given rise to concern that such a tribunal would compete with the International Criminal Court (ICC) for resources, evidence, arrest warrants, and defendants. Another point of view is that the STCoA would strengthen the ICC’s own investigations and follow through with action on a core crime of the Rome Statute of the ICC — aggression — the one place where the ICC lacks jurisdiction over Russian actions in Ukraine. Establishment of the STCoA can and should advance the efficient and comprehensive application of international criminal justice in the months and years ahead.
In this Just Security series, I and several colleagues explain the merits of creating the STCofA through a treaty entered into by the United Nations and the Government of Ukraine (“UN-Ukraine treaty”). The ICC cannot exercise jurisdiction for the crime of aggression against Ukraine due to an exemption for nationals of non-party States (such as Russia) in Article 15bis(5) of the Rome Statute. Thus, the task of investigating and prosecuting the crime of aggression inflicted upon Ukraine must be carried out in a newly-created international tribunal like the STCoA (the choice my colleagues and I and others advocate), the Ukrainian courts, or national courts in other countries exercising appropriate universal jurisdiction. Others will discuss the immunity of defendants that pose special obstacles to trying the crime of aggression in Ukrainian or other national courts. In this article, I explain why the STCoA we have proposed should be a vehicle of cooperation, rather than competition, with the ICC.
1. Sharing Defendants
Like the ICC, the STCoA would narrow its investigations and prosecutions to the senior political and military leaders of the Russian Federation, and possibly some oligarchs, because the crime of aggression is strictly a leadership crime. At the STCoA, Russian President Vladimir Putin and his Kremlin cohort of senior military and political advisers could be investigated for planning and executing the invasions of Ukraine in 2014 and again in 2022 (possibly including Belarus leaders) with acts of aggression constituting manifest violations of the U.N. Charter. Before the ICC, the same leadership group would be investigated for the progeny crimes arising from aggression, namely large-scale commission of war crimes, the crimes against humanity committed as part of a widespread or systematic attack against the Ukrainian civilian population, and possibly incitement to commit genocide and forcible transfers of Ukrainian children to Russia.
There is nothing incoherent about two international courts, the ICC and the STCoA, investigating the same individuals for the different crimes that fall within their respective subject matter jurisdictions. No Russian leader should escape the reach of international criminal law for any of the atrocity crimes (including aggression) committed against and in Ukraine. Why, for the sake of minimizing challenging litigation, should an army general be investigated for crimes against humanity in Bucha and yet escape investigation for his part in the high leadership group that planned before Feb. 24, 2022 the war of aggression against Ukraine? Why should a senior Russian official involved only in planning aggression against Ukraine essentially be immune from investigation and prosecution by a credible tribunal created under the auspices of the United Nations? Or what if he were deeply involved in both, but the evidentiary proof is insufficient to indict for war crimes committed during the conflict? It is simply implausible to bury in a black hole any accountability for the crime of aggression when the evidence of an egregious act of aggression has been so blatantly revealed in the recent history of Ukraine.
The worry, of course, is that the same individual cannot be in the custody of and on trial before these two tribunals at the same time. It’s true, no one can be two places at once, but this is not an unmanageable problem for national court systems across the globe. Indeed, prosecutions in different courts and across jurisdictions are common. Today, Harvey Weinstein stands trial before a Los Angeles court for rape and sexual assault following his conviction for these crimes against different individuals before a New York court in 2020. Charged individuals often stand trial multiple times, sequentially, before different domestic courts exercising their respective jurisdictions, or through extradition procedures between the courts of different countries. There is no reason that also cannot be the case in the practice of international criminal tribunals. The criminal procedure almost certainly will require many years to hold sequential trials before the ICC and the STCoA, but that is the reality of international jurisprudence.
The Rome Statute’s double jeopardy provision, Article 20(3) (“Ne bis in idem”), presents a critical challenge. It requires that, “No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8bis shall be tried by the Court with respect to the same conduct unless” various stipulated flaws existed in the original trial. Article 8bis defines the crime of aggression before the ICC and likely would be replicated in the STCoA Statute. Interestingly, even though the ICC cannot prosecute the crime of aggression with respect to the Ukraine situation, Article 20(3) may require the ICC to consider the STCoA’s initial prosecution of the crime of aggression against an individual in determining whether the same defendant can be charged by the ICC for conduct that overlaps both the crime of aggression and any other of the Rome Statute crimes: genocide, crimes against humanity, and war crimes.
For example, if a Russian general is tried before the STCoA for the crime of aggression because he plotted with other Kremlin leaders the military invasion of Ukraine in early 2022, but the same conduct approving the aggression plan also included, within that plan, strategizing the large-scale commission of war crimes by Russian forces inside Ukraine following the initial act of aggression, then Article 20(3) might be read by at least some ICC judges to prevent prosecution of the general for planning the commission of war crimes in Ukraine, whether or not he was convicted or acquitted before the STCoA on the charge of aggression. However, if the Russian general was prosecuted by the STCoA for the crime of aggression and his conduct examined by the STCoA did not involve plotting war crimes as part of the plan of aggression, but rather his intent to commit war crimes arose weeks or months later in Ukraine independently of his original participation in the plan to invade Ukraine, then Article 20(3) should be no impediment to ICC prosecution of him for war crimes.
Further, Article 20(2) of the Rome Statute explicitly states, “No person shall be tried by another court for a crime . . . for which that person has already been convicted or acquitted by the Court.” Thus, any verdict rendered by the ICC prior to a STCoA trial of the same person would reserve to the STCoA a subsequent prosecution of the crime of aggression since that person would not have been prosecuted by the ICC in the Ukraine situation for the crime of aggression. This would presumably encourage cooperation between the two courts for the ICC to prosecute first any person of interest to both courts.
Obtaining custody of indicted fugitives, most likely residing in Russia, should be strengthened with the existence of two arrest warrants, one for aggression and the second for other atrocity crimes. At some point, military or political leaders or oligarchs who are stigmatized and weakened with two incriminating arrest warrants issued by these international criminal tribunals may begin to lose favor domestically and pressures will mount to pitch them abroad to face the trials awaiting them in The Hague (as was the case with Slobodan Milošević and Charles Taylor). This will be particularly true if nations continue to enforce at least some sanctions against Russia after the war ends and refuse to lift them until the indicted fugitives are surrendered to either tribunal in The Hague.
Overall, the most critical issue is whether the two courts can negotiate a cooperative relationship agreement where competing investigations, arrest warrants, seizure operations, and custody of leadership suspects likely in Russia can be organized and trials scheduled first before one court and then before the second court. While a special agreement on cooperation doubtless would be required between the ICC and the STCoA, an important treaty that could greatly facilitate the process already exists.
Since the STCoA would be a U.N.-backed criminal tribunal under the UN-Ukraine treaty, there would be a plausible argument that the Relationship Agreement between the International Criminal Court and the United Nations (“Relationship Agreement”) should apply to the relationship between the STCoA and the ICC. Indeed, the UN-Ukraine treaty could explicitly stipulate this and apply Articles 15-20 (“Cooperation and judicial assistance”) of the Relationship Agreement to the STCoA. This would help establish a working partnership between the ICC and STCoA.
The Relationship Agreement actually works to the advantage of the ICC and thus should help dispel concerns about a competing STCoA. The United Nations, and by extension the STCoA, is required to cooperate with the ICC and “to provide to the Court such information or documents as the Court may request pursuant to Article 86, paragraph 6, of the [Rome] Statute.” In turn, that provision reads: “The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.” The reverse flow of evidence — from the ICC to the STCoA — would not be required unless negotiated between the two parties.
Article 18 of the Relationship Agreement would require the STCoA to undertake very close cooperation with the ICC prosecutor and to enter “into such arrangements or, as appropriate, agreements as may be necessary, to facilitate such cooperation” particularly when the ICC prosecutor exercises “duties and powers with respect to investigation and seeks the cooperation of the United Nations in accordance with” the Rome Statute’s Article 54 (“Duties and powers of the Prosecutor with respect to investigations”).
Given the near certainty that investigations of top Russian officials for crimes in both tribunals will entail retrieval and use of classified information provided from a variety of sources (such as communications intercepts obtained by the STCoA and any mole identified within the Kremlin), the ICC and the STCoA can be guided by Articles 18(3) and 18(4) of the Relationship Agreement, which read as follows:
Article 18(3): The United Nations and the [ICC] Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.
Article 18(4): The [ICC] Prosecutor and the United Nations or its programmes, funds and offices concerned may enter into such arrangements as may be necessary to facilitate their cooperation for the implementation of this article, in particular in order to ensure the confidentiality of information, the protection of any person, including former or current United Nations personnel, and the security or proper conduct of any operation or activity of the United Nations.
It will be essential that whoever is selected as the STCoA prosecutor have the recognized intent, experience, and demeanor to forge a respectful and cordial working relationship with ICC prosecutor Karim Kahn, who earlier this year began a nine-year term. The STCoA prosecutor also should confirm, in advance, the binding requirements of the Relationship Agreement and any other cooperative arrangement or agreement forged between the two courts and the STCoA’s obligation to comply with them. The last thing proponents of justice want is two strong-willed prosecutors bickering over procedures of cooperation. But that is quite easily avoided.
Invoking the Relationship Agreement and any further agreement negotiated and entered into between the STCoA and the ICC should provide for a solid and mutually beneficial working relationship between the two institutions.
There is understandable concern about how the STCoA would be funded and whether such funding would be at the expense of the financial requirements of the ICC. The ICC is an assessed body, and thus its 2022 budget of Euro 154,855,000 will be paid with the assessments charged to States Parties of the Rome Statute. The ICC Prosecutor also has sought voluntary contributions, including for the Ukraine investigation. However, it would be unjust for the ICC to seek a disproportionate amount of voluntary contributions for Ukraine at the expense of the many investigations underway of other situations under its jurisdiction. Anyway, there is a limit to what governments would voluntarily contribute to the ICC, either for Ukraine or other situations, because States Parties view assessments as covering their obligations to the ICC in each year’s budget that is negotiated and approved by the ICC Assembly of State Parties, without having to supplement those assessments with voluntary contributions. Prosecutor Kahn may seek a higher authorized budget for his office, and thus require higher assessments from States Parties for next year, to cover the extraordinary expenses of the Ukraine investigation. He would be right to be concerned that the governments that authorize funding for the STCoA may balk at the appeal for higher ICC assessments to cover the Ukraine investigation.
There are at least three ways to approach this dilemma. First, the STCoA should be viewed as a de facto extension of the ICC for purposes of investigating and prosecuting the crime of aggression in general, a core crime already embedded in the Rome Statute and that is a central purpose of the ICC. The STCoA would establish the first road map for such investigations and prosecutions of the crime of aggression and that process would benefit the long-term goals of the ICC, particularly if the two courts can cooperate pursuant to the Relationship Agreement and any other specific arrangements or agreements between them. Thus, voluntary funding for the STCoA should be viewed as a down payment on the skills and experience needed by and benefiting the ICC in the long run to litigate the crime of aggression under the Court’s jurisdiction. The STCoA’s track record also can inspire amendment of the Rome Statute to broaden the ICC’s jurisdiction on the crime of aggression in situations like Ukraine.
Second, while it would be ideal for the STCoA’s annual budget to be covered by the regular UN budget (and hence the annual assessments charged to all U.N. Member States), that is a highly unlikely scenario. Requiring U.N. funding, like the International Criminal Tribunals for the former Yugoslavia and Rwanda enjoyed as U.N. Security Council Chapter VII subsidiary organs, would only act as an accelerant for a firestorm of opposition by Russia and China and their friends in the U.N. General Assembly to an initiative to create the STCoA, much less pay for it. Further, the Administrative and Budget Committee (Fifth Committee) of the U.N. General Assembly normally acts on consensus to approve all budgetary matters. That consensus likely would never be achieved for a U.N. allocation of assessed funds to the STCoA or even for any subvention from U.N. funds to cover shortfalls in STCoA voluntary funding (which were approved in the past for the Extraordinary Chambers in the Courts of Cambodia and the Special Court for Sierra Leone). Proponents of the STCoA would also never want to place its annual budget on such unsure footing.
These realities point toward a voluntarily-funded STCoA. Organization for Economic Co-operation and Development (OECD) countries that have taken strong stands opposing the Russian aggression against Ukraine should be willing to contribute significant voluntary funding for the establishment and operation of the STCoA. These nations include the United Kingdom, Canada, the United States, the Baltic States, the Netherlands, South Korea, Poland, Germany, France, Japan, Australia, and the Scandinavian countries. The European Union also might be a willing contributor. Taiwan, in a show of solidarity with the governments opposing aggression against Ukraine, also could contribute to the effort.
Special fundraising diplomacy by experts from the United Nations and the Government of Ukraine will be necessary to corral the essential funding, but there are ample precedents. Similar endeavors were required for years to raise the voluntary public funds to cover the annual budgets of the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, and the Special Tribunal for Lebanon — all tribunals established by treaty between the United Nations and the respective government. (For full disclosure: I was the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018)). While a nation’s assessments to the ICC often came up in discussions about raising additional funds for these tribunals, government officials understand the distinction between the two and why a multilateral effort to raise voluntary funds for investigation and prosecution of situations of atrocity crimes not falling within the jurisdiction of the ICC is an objective worthy of the government’s support, however small the contribution.
Third, I recently co-authored a soon-to-be-released report for the U.S. Holocaust Memorial Museum that examines use of the social bond market for meeting some of the budget requirements of the ICC and organizations dedicated to meeting the needs of victims of atrocity crimes. An earlier Just Security article, presaged some of the factors covered in the report. There may be good reason to explore floating a social bond to cover the annual operating expenses of the STCoA (as well as a different social bond to cover some of the ICC’s annual budget). Social investors would be identified to spur their interest in the STCoA social bond while governments with AAA, AA, or A sovereign credit ratings in the market could be approached to guarantee the bond and attract further commitments from the social investors.
Each year the proceeds of the social bond would be invested by expert managers in a manner that would secure, with investment earnings, part if not all of the operating expenses of the STCoA as well as a discounted interest rate that would be owed annually to the social investors. Enough funds would remain in the investment account to repay the principal to the social investors at the end of the social bond’s term unless the bond principal is rolled over for continued payment of the operating expenses of the STCoA and payment of the discounted interest rate to the social investors each year.
The social investors could be a range of institutions, such as pension funds and insurance companies, and wealthy individuals (including among the Ukrainian diaspora). The guarantors of the social bond could include, in addition to some key governments, regional organizations, and even high net worth individuals (again, including among the Ukrainian diaspora). Given the broad international opposition to the Russian aggression against Ukraine, there should be little difficulty in identifying qualified and interested social investors as well as a pool of possible guarantors. Since the social investor pool for the STCoA most likely would not include governments, there would be no pressure on those governments to decide between providing appropriated funds to support their assessments to the ICC and social investor commitments to the STCoA. Any government that would qualify as an A-category guarantor of the social bond would, if it guaranteed the social bond, carry a contingent liability for the amount it agrees to cover in the guarantee. However, given the relatively conservative manner in which the social bond’s proceeds would be managed each year, a call on the guarantee would be highly unlikely. If the guarantee from A-category sovereign credit governments proves too difficult to arrange, the Government of Ukraine could put up some collateral from State assets to underpin its own guarantee of the social bond.
Thus, on the three issues of sharing defendants, cooperating together in pursuit of international criminal justice, and managing funding requirements, the co-existence of the ICC and the STCoA is not only possible, but imperative for the future of Ukraine and its right to achieve accountability for the full range of atrocity crimes, including aggression, committed against it in recent years.