The international criminal court is locked in a deplorable turf war that is blocking Ukraine’s efforts to set up a special international tribunal with the authority to try Russia’s leadership for the crime of aggression, Philippe Sands KC claims.
Sands, a leading advocate of an international tribunal, blamed the deadlock on Karim Khan, the ICC prosecutor, and some unnamed judges on the court, an international body based in The Hague that prosecutes people for genocide, crimes against humanity, war crimes and the crime of aggression. He said they were opposing a special international tribunal not on the basis of principle, but because of a self-interested turf war.
Sands told a conference in London last week, attended by many Ukrainian ministers, that it was “so sad the institution that seems most opposed to this idea is the ICC in the form of its prosecutor and some of its judges. This is not an issue of principle for them, but an issue of turf. It strikes me as deplorable that when a conflict rages on the territory of Europe, of the kind that has dragged on for two years and plainly could extend into a much bigger conflict, the idea that protecting your institution – turf – is driving your opposition is utterly appalling. It is a deplorable situation.”
Debate has been deadlocked for a year on whether it is politically feasible to persuade the UN to set up a special ad hoc international tribunal – separate from the ICC – to try the senior Russian leadership for the crime of aggression, or instead leave the task to a less authoritative court in Ukraine.
Ukrainians have been left frustrated by the delays, and have urged the UK to take a lead.
It is widely accepted that although the ICC can charge individuals for war crimes, it does not have jurisdiction over Russian crimes of aggression, since Russia is not a party to the Rome statute, the ICCs’s founding treaty. The ICC is instead seeking to charge President Vladimir Putin over the abduction of children from Ukraine.
Sands said some G7 countries – the US, UK and France – were nervous about an international tribunal as it might set a precedent that led to other world leaders being charged by other future tribunals.
So far, 40 countries have joined the Ukraine core group that supported action on the crime of aggression, but there is no diplomatic consensus on the model of court.
Sands said: “For this deadlock to continue, basically, is to assist only one side, and that is the Russian side. It reveals the west is divided and unable to act even on this issue.”
He urged everyone to seek a bridge between a purely Ukrainian and an international tribunal, arguing that far from minimising the role of the ICC, a special tribunal could accentuate and reinforce it.
“The nightmare scenario would be that in three, four years’ time a raft of junior people have been charged, but the people at the top table get off scot-free. The thing about the crime of aggression is that it is direct and goes to the top table.” He said work had been done on an international tribunal but not in Ukraine, and not as part of the Ukrainian judicial system.
Fears remain that the UN general assembly, or security council, may not vote to establish the tribunal, reducing its international legitimacy. Russia, for instance, could veto any tribunal if the security council were asked to establish such a body.
But Frank Hoffmeister, the head of the EU foreign affairs legal department, called for “a dose of realism” about the suggested alternative course of trying to set up the court through a vote of the UN general assembly.
He pointed out that although 140 states at the general assembly voted to condemn Russia’s invasion as an act of aggression, support fell below 100 when countries had been asked about setting up a register of damages in Ukraine caused by Russia.
He said “I do not know how many votes you would get if you said: ‘Let us punish Putin’. If there is not enough support, the whole exercise is dead and it is a recipe for failure.”
Another alternative is for the Council of Europe to establish the body through a multilateral treaty, but that would be an affirmation of the global south’s exclusion from western-dominated international justice.
Sands was speaking at a conference organised by Justice and Accountability for Ukraine – an independent NGO working with the office of the president of Ukraine – where Ukrainian leaders called for Britain to end its year-long prevarication and back an international tribunal, and not a hybrid model.
Andrii Smyrnov, the deputy head of the office of the president, said international law was being held hostage by global politics. He said a purely Ukrainian model would probably be unable to overcome the immunity the Russian leadership would assert. He argued: “Given its global influence and historic leadership of human rights issues, the UK can play a vital role in galvanising support for an international tribunal.”
Dr Anton Korynevych, ambassador at large in the Ukraine foreign ministry, said: “A special tribunal on the crime of aggression goes to the primary root cause of the war crimes that started on our territory in February 2014. There is no existing court that can do that.”
He added that to gain greater political momentum behind the proposal, the discussion needed to be taken out of Europe to Latin America, Asia and Africa. “In the end we need broad support,” he said.
Oksana Zolotaryova, the director of the international law department at the Ukraine foreign ministry, said: “What the people of Ukraine need is justice for what has happened throughout these 10 years. Every day we have a huge number of losses, civilian and military, and the people say they want those responsible put on trial. They don’t care so much about money. They want to see [that] the people like Putin who did it will first of all be in jail.
“They cannot wait for 30 years more for Putin and for the political and military leadership of the Russian federation to be found guilty of the crime of aggression.
“Yes, we can charge Putin in the district court of Mykolayiv, but the war that Putin launched was not just against Ukraine, the war was against the international order. The response should not just be Ukrainian but in the name of the international community.”
