Wildcat or Whale? Europe’s New Ukraine War Crimes Court

“I had hoped we were hurling a wildcat onto the shore,” Winston Churchill once said of a failed amphibious operation. “Instead, we got a stranded whale.” That may be the fate of Europe’s new crime of aggression court for Ukraine, launched this month with much fanfare, but which may never hold a trial.

The Special Tribunal for the Crime of Aggression against Ukraine was approved by European ministers on May 9. With the support of 38 nations to date, it carries high ambitions, aiming to prosecute Russian President Vladimir Putin and his ministers for invading Ukraine.

Supporters say it closes an “accountability gap” in war crimes justice. That is because, while the International Criminal Court (ICC) charged Putin with crimes against humanity in 2023, it only examines conduct in the Ukraine war, not whether the war itself is legal.

The new Tribunal’s legal foundations are simple, and are anchored in the UN Charter, the closest thing the world has to a foundational document. The Charter says wars and invasions are illegal, in other words, crimes of aggression, unless they are defensive, or authorized by the UN Security Council. Russia’s all-out Ukraine invasion was neither of those things. Thus from a prosecution point of view, charging Putin with an act of aggression should be a slam-dunk.

The Russian president is likely to be charged along with Prime Minister Mikhail Mishustin and Foreign Minister Sergei Lavrov.

The tribunal breaks new 21^st century ground; it will be the first court to prosecute the crime of aggression since the Nuremberg and Tokyo trials after World War II.

But a comparison with those courts is where the problems begin. For one thing, Nuremberg and Tokyo had suspects to try, while the new court will probably have none. Russia’s high command are unlikely to turn themselves in.

Secondly, Germany and Japan were occupied by the victorious powers for those war crimes trials, allowing prosecutors access to the files. The new tribunal will have no access to Russian documentation.

This is important because convicting Russian leaders means proving not just the fact of the invasion, but also that they exercised command functions.

The other problem is the nature of the tribunal itself. It will look like an international court, with a courthouse in The Hague opening next year, complete with a panel of 15 international judges, prosecutors, and a jailhouse. It will be administered by the Council of Europe, which already administers the European Court of Human Rights. But it will take its orders from Ukraine, operating as an extension of Ukraine’s court system.

This is important because, as the Tribunal’s briefing papers admit, it cannot actually arrest Putin and his ministers, even if they showed up at The Hague, because it is a national, not an international court, meaning Putin and Co. have sovereign immunity.

Instead, the Tribunal will have to wait until Putin and his cohorts leave office, assuming they then decide to travel to one of the Council of Europe’s 46 member states.

Most of the world does not recognize the court, and will not arrest its suspects. Despite intensive lobbying from both the Council of Europe and the European Union, the court has been shunned by states in Africa, Asia and South America. The United States backed the tribunal under the Biden administration, but Trump has since pulled out, leaving it as a Europe-only court.

A further problem is that even if Putin leaves office and then travels to Europe to be arrested, the Tribunal cannot try him until the ICC has tried him, because the ICC indicted him first.

The Council of Europe has got around this problem by allowing trials in absentia — that is, holding a trial without the suspect in court. This means once Putin is charged, he can be tried anyway, even if he is not in the dock. This is a controversial practice, for the obvious reason that the defendant is not there to defend themselves. Many of the countries endorsing the Tribunal ban the practice in their own courts.

These limitations mean the Tribunal may go its entire life without holding a proper trial. That has left many wondering why Europe is creating a brand new court, at an estimated annual budget of $60m, when another court already exists which can try Putin for the same crime.

The crime of aggression is one of the four core crimes the ICC can prosecute, but European leaders have chosen to ignore it.

One reason for this is that the ICC’s reputation is in freefall. In its 22-year existence it has only convicted six war criminals. Meanwhile, it has faced multiple scandals, the latest being a sex-harassment investigation of its chief prosecutor.

Another reason is that the ICC has tight restrictions on who it can prosecute for the crime of aggression. The ICC is not part of the UN, but is made up of 125 member states. Most have secured immunity from being prosecuted for this particular crime, and court rules also forbid aggression charges against countries who are not members, like Russia.

But rules can be changed. Former ICC chief prosecutor Luis Moreno Ocampo has pointed out that rewriting a few paragraphs of the ICC Statute would allow it to prosecute Russia for the crime of aggression, leaving no need for this expensive new tribunal. In fact, the ICC is holding a review conference this July, which could make the change.

But that change won’t happen. World leaders do not want to expand the ICC’s powers to crimes of aggression powers, because that would threaten too many governments.

Consider the case of former British prime minister Gordon Brown. He is one of the chief advocates of the new Tribunal. But if the Tribunal’s mandate was not limited to Ukraine he would find himself in the dock for two wars of aggression, in Kosovo in 1999 and Iraq four years later. This would be hugely controversial but the fact is that neither war had UN permission and it would be a struggle to argue they were defensive. The same might apply to the other 31 states that invaded Iraq in 2003.

The same could also apply to a similar number of African leaders for sending their armies into the interminable mineral wars raging in Democratic Republic of Congo.

For this reason, European states have carefully limited the new Tribunal’s mandate to Ukraine, and Ukraine only. In effect, they have created a law that applies to Russia, but not themselves.

Human rights groups nevertheless insist the Tribunal is a worthy cause, because it advances the reach of war crimes justice. Ukraine is also enthusiastic, seeing it as a way of sharing the load of its ambitious war crimes investigations.

However, the acid test of this new court will be whether it can bring suspects to trial. If not, it risks going down in history as the stranded whale of international justice.

Chris Stephen is a former war correspondent with The Guardian. He has written on war crimes justice matters for publications including The Hill, International Institute for Strategic Studies, and Counsel, the magazine of the bar association of England and Wales. He is author of The Future of War Crimes Justice, (Melville House, London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, London and New York).

Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions expressed on Europe’s Edge are those of the author alone and may not represent those of the institutions they represent or the Center for European Policy Analysis. CEPA maintains a strict intellectual independence policy across all its projects and publications.

This post was originally published on this site be sure to check out more of their content.