JUSTICE INFO: What\u2019s your immediate reaction to the announcement on the creation of a Crime of Aggression Tribunal through an agreement between Ukraine and the Council of Europe?<\/h2>\n\n\n\n
MARIEKE DE HOON: <\/strong>The important thing in the discussion has always been: Will this be an international court or a court based in Ukrainian jurisdiction? This is extremely important because of the immunity question. The crime of aggression is a leadership crime, which means that it is focused on those that are in power, both politically or militarily, to direct the decisions to plan and prepare and execute the crime of aggression. So, Russia\u2019s President Vladimir Putin, Minister of Foreign Affairs Serguei Lavrov, Minister of Defence Serguei Shoigu. In particular, Putin and Lavrov would fall under the so-called \u2018Head of State immunity\u2019. Head of State immunity is recognised traditionally in international law, but arguably not in an international court. However we don\u2019t have much case law on what the leadership criteria really is and what all preparation, planning, execution and so forth exactly mean. There are multiple leaders who have also been involved in more detailed planning of military operations that could fall under the crime of aggression. For instance, the military operation going through Belarus to attack Ukraine from there. So the question is really important whether this is going to be a national, Ukrainian court with potentially some support by some other states, or whether this is going to be an international court. <\/p>\n\n\n\n I think the ideal path for those that want it to be recognised as an international court \u2013 now that it is being established through a agreement between Ukraine and the Council of Europe \u2013 is, hopefully, that many other states will join this court, recognise it or become a member of it. This is also what happened with the Nuremberg Tribunal. The Nuremberg Tribunal at first was established by only four victor states, but then quickly adhered to by 19 other states and then subsequently came a UN General Assembly resolution to also recognise it. So this I think is the best path now given that it\u2019s being established under Ukrainian law with already that regional international aura of the Council of Europe. Right now there doesn\u2019t seem to be the required two-thirds\u2019 majority in the UN General Assembly because Russia is an important player in the world and many states feel that this is not their war. <\/p>\n\n\n\n There is case law, particularly in Nuremberg and Tokyo. Ukraine has also been prosecuting the crime of aggression, but under a different provision than the one that is internationally recognised. I think the case law that Ukraine has developed could be useful. But the tribunal\u2019s judges will be very careful to make it follow the internationally established understanding on the crime of aggression as much as possible, particularly to create the opportunity for other states to join and for this court to have the legitimacy as an international court. <\/p>\n\n\n\n It will be very important to see exactly what the wording is in the Statute of the tribunal, and whether there\u2019s language in it that makes it a Russia tribunal, so that only Russian aggressors may be prosecuted, or whether this is an \u2018aggression against Ukraine\u2019 tribunal, meaning that those that are responsible for the aggression against Ukraine can be prosecuted. That latter group would include Belarusians for sure, and potentially also North Koreans. For all of them, it\u2019s always a leadership crime. It\u2019s always about those that are in that position to plan, prepare, execute and so forth. It\u2019s really important for Belarus to realise that this is not \u2018complicity\u2019, not \u2018aiding and abetting\u2019. If you look at the aggression provision of the International Criminal Court (ICC) \u2013 which is based on a 1974 General Assembly resolution in which Russia, by the way, was a very important negotiator \u2013 letting another state use your territory to commit an aggression is a full act of aggression in and of itself.<\/p>\n\n\n\n It\u2019s hard for me to say from the outside. I think the vital point has been whether it would be a Ukrainian national court or an international court. And from the get go, there were quite some severe camps that really only saw it as an \u2018either\/or\u2019. And I think where the discussion has arrived creates a space in between. It is up to states to decide how international it will become and it will be up to prosecutors to then, on that basis, try to argue that the immunity of Heads of State wouldn\u2019t apply in these particular circumstances given the amount of international support. And then it will be up to judges to decide what they feel about that argument.<\/p>\n\n\n\n I think a process was necessary. Of course, it\u2019s too bad it\u2019s taken some time, but it may be needed to create the space where everyone could find each other. An important aspect is that there are a couple of powerful, militarily mighty states that are very afraid that something will be created that has the universal impact of a supranational court or to criminally judge the use of force externally. Of course that\u2019s the United States, Russia, China \u2013 but also the United Kingdom and France. They are the states that have been most vocal in this. France and the United Kingdom are member states of the International Criminal Court (ICC). In Kampala in 2010 and again in 2017 in New York during the negotiations on the activation of the crime of aggression they have really made sure that the jurisdictional reach in that court has become so very small: you also need the aggressor state to be a member state of the ICC [for the court\u2019s jurisdiction to apply for this crime]. This was a compromise. And now you see these same states \u2013 that have a different position now that it\u2019s about Russia \u2013 working out how to create a tribunal that wouldn\u2019t prosecute other crimes of aggression. This has also been a really important dynamic of the discussions. <\/p>\n\n\n\n There\u2019s been quite a lot of developments in the law on immunity. More and more it\u2019s recognised that for international crimes like war crimes, those that commit them cannot hide behind the rationale of immunity. This is also a reason why hopefully the statute will be open enough for prosecutors and judges to use this court to crystallise that out.<\/p>\n\n\n\t That should be allowed for sure. That way you already have a dossier in case something else happens. There could be a regime change in Russia or Belarus or North Korea where a new regime might waive that immunity. Or perhaps you can issue a report that is at least an important authoritative source that can be used in history books even if there\u2019s no prosecution.<\/p>\n\n\n\n Secondly, developments on immunity are also occurring outside of the context of this specific special court. So it\u2019s not unlikely that maybe a decade from now immunity has crystallised further, perhaps in the context of a different situation.<\/p>\n\n\n\n Yes, I think it would be a pity. The crime of aggression is such a leadership crime that, of course, it\u2019s very important to crystallise law that makes it clear that it\u2019s not just the Putin\u2019s and Lavrov\u2019s of this world that are responsible, that if you are a military leader or a sub-political leader and you play an important role, you are also liable to be prosecuted. If that is the outcome of what it\u2019s going to be, it has a lot of value. However, I do think that the crime of aggression particularly is for those that are at the absolute top. I also think that the structure of Russia is such that really Putin has a huge role here. And so it would be a distortion maybe of the storytelling, of the narrative and expressive effect of this tribunal if that particular main actor would maintain his impunity.<\/p>\n\n\n\n This is a huge accomplishment of the negotiation, because in absentia is completely normal in some states, like the Netherlands, and believed to be not totally in accordance with a fair trial in other legal systems. So a lot of the discussions have been a sharing of experiences. What\u2019s really important is that this new court is with the Council of Europe which has the European Court of Human Rights. And the European Court of Human Rights has for decades said that in absentia trials are not a violation of fair trials if you adhere to particular procedural safeguards.<\/p>\n\n\n\nOne of the Ukrainians in the negotiation told me: \u201cIt is not Ukrainian. It is created on a bilateral agreement with the Council of Europe, has an international legal personality and applies international law.\u201d So how international would that make this court?<\/h2>\n\n\n\n
You said that there\u2019s no case law but Ukraine has been conducting aggression prosecutions, and we can also look back to Nuremberg\u2026<\/h2>\n\n\n\n
You talked about multiple potential leaders being brought before this court, and you\u2019ve already mentioned Belarus. Are we talking about individuals beyond the Russian leadership? Are we talking the Belarus leadership? Could we be talking about the North Korea leadership?<\/h2>\n\n\n\n
From my perspective, it feels like we\u2019ve gone round in circles for quite some time while they\u2019ve tried to build up some kind of political support base and discussed a lot of the details. How have we got to this decision? <\/h2>\n\n\n\n
As you say, we haven\u2019t got the actual statute yet. But what we see is that some of the biggest issues, like keeping head of state immunity, appear to have been resolved. <\/h2>\n\n\n\n
What we understand from the briefings is that there\u2019s a kind of a workaround whereby the prosecutor of the tribunal would be able to prepare indictments against those who would have personal immunity as head of state, head of government or foreign minister, while they\u2019re in power, but he\/she would not be able to go ahead with any trials. While others would be able to be put on trial. Does that sound rational?<\/h2>\n\n\n\n
You sound worried that the statute could be going backwards, if it puts into writing in some form, something that\u2019s still dynamic at the moment.<\/h2>\n\n\n\n
What about in absentia trials since that was the issue that you were briefing the Core Group on when you came to talk to them in Vilnius and you were using the example of the MH17 trial to say as long as there are safeguards in place, this is a perfectly normal way to conduct proceedings?<\/h2>\n\n\n\n
And then we\u2019ve got the jurisdiction, which we understand is going to be based only on Ukraine\u2019s territorial sovereignty, and that the prosecutor general of Ukraine would bring evidence to the prosecutor of special tribunal.<\/h2>\n\n\n\n
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