Ukraine wants Canada to take a leadership role in the creation of a special tribunal to prosecute Russian military and leaders for the crime of aggression.
Andrii Smyrnov, the deputy head of the office of the President of Ukraine, said he shared an outline of the plan with Canada’s ambassador last Friday, and hopes the government will be a leading voice in establishing the tribunal.
“I really hope for Canada’s endorsement in this,” he told The Globe and Mail in an interview in Kyiv.
Ukraine is pushing for a special tribunal to prosecute high-ranking Russian perpetrators. It would be in addition to the International Criminal Court, which is investigating allegations of crimes against humanity and war crimes in connection with Russia’s invasion of Ukraine. The international court does not have jurisdiction to prosecute the crime of aggression.
The United Nations defines an act of aggression as the invasion or attack by the armed forces of one state on the territory of another state, or any military occupations.
Adrien Blanchard, a spokesperson for Foreign Affairs Minister Mélanie Joly, said Canada will be relentless in its efforts to hold Russian President Vladimir Putin and his accomplices accountable.
The Canadian government is aware of Ukraine’s proposal, he said, and supports “all efforts aimed at ensuring that all those complicit in these atrocious crimes and illegal war are held accountable and confronted with the full force of the law.”
Mr. Smyrnov said the creation of a special tribunal is the only option for bringing people who committed acts of aggression to justice. “It is more important than anything else. This is the primary crime,” he said.
The world has been “passive” when it comes to Russian aggression, he said.
Ukraine is in negotiations with countries that include the Netherlands, he said, about hosting the tribunal. He said Ukraine is also working on a United Nations global resolution to endorse the idea and believes it will receive support.
“I have seen a lot of grief and sorrow and tragedy in last half a year. … How many mass graves, how many raped and tortured people’s bodies should be discovered?”
While academics agree a tribunal to deal with the crime of aggression is necessary, they differ on what form it should take, said Mark Kersten, an assistant professor at the University of the Fraser Valley and consultant at Wayamo Foundation, a non-profit that works to strengthen the rule of law and promote justice for international and transnational crimes.
The alternatives include an international tribunal; one set up by the United Nations General Assembly; and a hybrid model that is a shared responsibility between Ukraine and the international community.
Mr. Kersten said he sees a hybrid model as more credible because it could be designed to take into account local context, including local law and staff, domestic outreach and more.
He said such a tribunal could help build Ukraine’s capacity to investigate atrocities now and in the future. An outstanding question though is whether a new tribunal could prosecute heads of state and foreign ministers. “I think it’s a really big question as to whether other states around the world would support that.”
He said he believes an international or hybrid tribunal could be designed so it could prosecute heads of state and foreign ministers.
Mr. Kersten said it is important to remember that when the ICC was founded, Western states in particular, such as Canada, France, Britain and the United States, did not want the court to be able to investigate and prosecute crimes of aggression.
Ukraine is proposing a tribunal that would be empowered to determine whether Mr. Putin or others are criminally responsible for the war itself and, therefore, the crime of aggression.
Kevin Jon Heller, a professor of International Law and Security at the University of Copenhagen, Centre for Military Studies, is also in favour of a hybrid model. He said it would be easy to get it up and running by basing it out of Ukraine’s judicial system, and bringing in outside support. “You could get it set up in a few months, you could be issuing indictments not long after that,” he said.
Mr. Heller said creating a new tribunal from scratch is expensive, time-consuming and takes a lot of energy to recruit investigators, prosecutors and judge, but with enough political will and money, it could be done quickly.
However, he said, the legitimacy of the tribunal is extremely important and the involvement of states that have committed aggression themselves and states that pushed to limit the ICC’s jurisdiction over aggression could reduce its credibility.
“All the countries that went out of their way to make sure that the ICC didn’t have broad enough jurisdiction over the crime of aggression,” he said.
The downside to a hybrid model based in Ukraine, he said, is that it might not be possible to prosecute somebody who had personal immunity because they are a foreign leader or head of state. “You couldn’t prosecute Putin and [foreign affairs minister Sergei] Lavrov in that court, but you can prosecute any other Russian government or military official that you got your hands on in that kind of court. So it’s again, it’s pros and cons.”
Ralph Janik, who teaches international law in Vienna and Budapest, disagrees with the hybrid model.
“I think the main reason why it should be composed of international experts only is that Russia is very keen on pretending that there is a bias, that Ukraine is trying to make Russia look bad, and that these are show trials and scams and so forth. You can avoid that by saying no, there was not a single Ukrainian judge present.”
Mr. Janik said it could be in Turkey, which has kept relatively neutral throughout the war.
The Globe and Mail, September 28, 2022