\u201cWhen you do something of this scope, in this unprecedented way, you are always under threat of being harassed, and experiencing hybrid attacks,\u201d says Grigait\u0117 Daugird\u0117. \u201cWhat is important now is not to lose the moment because the aggression is still there and war is still there. So the sooner it becomes operational, the better.\u201d<\/p>\n\n\n\n
\u201cPissing into the wind\u201d<\/h2>\n\n\n\n
At the Chisinau meeting the technical part \u2013 an enlarged partial agreement between the Council of Europe and states \u2013 was agreed by the EU and 36 states, including Australia and Costa Rica from beyond Europe. That\u2019s well beyond the 16 needed to make a commitment for the establishment of the tribunal. However, for more than three quarters of those states who signed up, their commitment is dependent on the precise budget. And \u201ca final budget has not been drawn up \u2013 it\u2019s missing,\u201d says Astrid Reisinger Coracini, Professor of International Law at the University of Vienna. At this stage, the EU reiterated its commitment of 10 million euros<\/a> for an advanced team \u201cto prepare the institutional, logistical and organisational foundations of the Special Tribunal,\u201d over the next 24 months. <\/p>\n\n\n\n This period is described as the \u201cskeleton phase,\u201d<\/a> by Ukrainian officials. <\/a>They say during that period the \u201cSTCA\u2019s Management Committee will be constituted and will enter into a host-country agreement with the Netherlands.\u201d Its model is the governance of the ICC<\/a>:\u00a0\u201cThe Committee will function in a manner similar to that of the Assembly of States Parties to the International Criminal Court \u2013 it will make all principal decisions, including on budgetary matters, the recruitment of key personnel, and the appointment of the prosecutor and judges. It will also be able to sign agreements with states and international organizations, which will cover pivotal issues such as the arrest, transfer, or detention of indicted individuals.\u201d<\/p>\n\n\n\n Council of Europe officials speaking on background say there are a series of workshops being held in The Hague, each tackling one of the main issues which will help define the budget parameters: individual or group trials? Witnesses and perpetrators to be interviewed online or via video? Witness protection measures? Role of the defence? All those elements will have expert input from current practitioners and guide how big the STCA budget should be.\u00a0The Council hopes that this budget scoping phase will be concluded by the beginning of 2027 to enable states to fully commit and for the tribunal\u2019s management to start the important processes of establishing the court, electing judges and a prosecutor.<\/p>\n\n\n\n But Nadia Volkova, director of the Ukrainian Legal Advisory Group, an NGO, says there are \u201cmany grey areas\u201d to be resolved. And she puts it bluntly: \u201cTo use a crude analogy, from the get go, it's just like pissing into the wind every step of the way. They managed to push it through and they have it now, but then there is no strategy. There is only an aspiration as to where they want to be.\u201d<\/p>\n\n\n\t Even with a rudimentary sketch of the practical side of how it will operate, there are a myriad of issues \u2013 mainly legal \u2013 that need resolution. \u201cI don't think the authors and the drivers of the process have the answers because a lot of it is left down to the judges under the rules and procedure,\u201d says Volkova.<\/p>\n\n\n\n One of the \u201cmain\u201d legal issues, Reisinger Coracini says, is how exactly proceedings will be transferred from Ukraine to the STCA. There is a \u201ccompromise clause\u201d in the STCA statute, she says, that gives the international prosecutor powers not only to receive information but also \u201cindependent investigation powers\u201d. But there is \u201cbuilt-in tension\u201d in that transfer, she suggests. \u201cIf the international prosecutor is completely independent, they could not only conduct additional investigations within transferred proceedings, but also add or discontinue proceedings. This might not always be in the interest of Ukraine. On the other hand, one would also not want a prosecutor of an international tribunal to be completely bound by what is done on the national level.\u201d <\/p>\n\n\n\n For Grigait\u00e9 Daugird\u00e9 this is a real concern: Belarus, Lithuania\u2019s neighbour, and a source of continuing hybrid attacks, contributed to Russia\u2019s war \u201cby giving its territory to the aggressor\u201d. North Korea, she says, did the same by \u201csending their troops\u201d. But, she asks, \u201cwhat happens if Ukraine, for different political reasons decide not to refer Lukashenko [Belarus president] to the tribunal? Then if Lithuania decides to separately send Lukashenko's file, would our prosecutors be able to do that? I don't see any argument or obstacle as to why the tribunal\u2019s prosecutor should not be able or willing to receive additional documentation, but of course, it will depend on their courage, and ability to ground their decision.\u201d<\/p>\n\n\n\n Much of the four years of negotiations leading to this moment was spent on the thorny question of immunities of state officials.\u00a0\u201cWe have a clear provision in the statute that functional immunities shall not apply,\u201d says Reisinger Coracini, referring to the usual principle that officials of foreign States cannot be prosecuted in the courts of another State for acts committed in the exercise of their functions. When it comes to war crimes, this immunity is lifted. But debates on these issues have continued in places like the UN International Law Commission. \u201cI would therefore hope that we will get a very strong and clear and legally sound decision by the judges at a very early stage, which engages with and discusses all the arguments; an authoritative and convincing kind of Tadic decision [the first decision by the UN Yugoslav tribunal<\/a> in 1995] on functional immunities.\u201d\u00a0<\/p>\n\n\n\n Then come personal immunities attached only to heads of state, prime ministers and ministers for foreign affairs \u2013 in the case of Russia, Vladmir Putin<\/a>, Mikhail Mishustin, and Sergey Lavrov, also referred to as the \u2018troika\u2019. \u201cIt is clear that there will be a procedural stop when it comes to confirming a potential indictment against the Troika,\u201d Reisinger Coracini warns. \u201cThe pre-trial judge shall not confirm indictments against members of the Troika and will suspend proceedings. But you also have the expectations coming from Ukraine \u2013 maybe not so much the government because they have signed off on this \u2013 but the expectations of the population that this will be a tribunal that should be able to go after those very much at the top of the military and political hierarchy. I believe this is a question of managing expectations, but it will remain a source of frustration.\u201d\u00a0<\/p>\n\n\n\n Volkova says \u201cthere isn't a lot of understanding or even interest in the tribunal right now. There's no trust in this tribunal yet, there's no belief that it will work and be effective. So by the time it's established, it will need to prove itself\u201d. <\/p>\n\n\n\n Reisinger Coracini wonders about another issue: victims\u2019 participation. \u201cWe don't really have experience with how a special tribunal should deal with victims of the crime of aggression. The only international tribunals that we had were the post-World War II on the crimes against peace [at Nuremberg<\/a> and Tokyo], but there was not really any victim participation in the way we understand victim participation today \u2013 how the voices of victims should be heard, how victim communities should be treated, or even who will count as a victim of the crime of aggression. These are far-reaching questions that the special tribunal will face, and I think it's very important how the tribunal will deal with them.\u201d<\/p>\n\n\n\n \u201cThe definition of a victim is not in the statute,\u201d Volkova notes. There\u2019s been an ongoing discussion, she says, \u201cwhether it should be the entire Ukraine or just specific individuals who have suffered. What we've heard lately and informally is that most likely there will be representation from different regions from Ukraine. But which regions and how they're going to choose, I have no idea. I guess that will have to be defined in the rules of evidence and procedure.\u00a0And that\u2019s a huge task for anyone to take on because there's so much responsibility. You are defining a victim of a crime of aggression for the entire state. On what authority? Who the hell are you to tell me whether I'm a victim or not? That's definitely one of the key aspects where civil society will be quite active. Victims\u2019 associations have a voice and hopefully they will not stand back and will also have a say in all of this.\u201d<\/p>\n\n\n\n \u201cMy biggest hope is that it will not take another five years before the tribunal becomes operational because this tribunal is the final cherry on the justice cake,\u201d says Grigait\u0117 Daugird\u0117. \u201cWe all say that Russia, of course, first of all, has to be defeated on the battlefield. But a big part of defeating Russia is defeating Putin and his imperial mindset. And this tribunal does exactly that because it sends a very clear signal that despite the fact that you are permanent member of the UN Security Council, despite the fact that you actually made those decisions as sitting head of state, despite that fact that this tribunal would still have to wait before an indictment could be enforced, still the indictment will be there, the evidence will be presented publicly, and all these efforts will be part of history. Because history is written by judgments, it is written by tribunals.\u201d<\/p>\n\n\nThe \u201ccompromise clause\u201d<\/h2>\n\n\n\n
Immunity for Russia\u2019s Troika<\/h2>\n\n\n\n
Who is a victim?<\/h2>\n\n\n\n
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