Prosecuting Putin for his Crime of Aggression Against Ukraine: Part Two

by | Mar 8, 2022

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About Carrie McDougall

Dr Carrie McDougall (@IntLawCarrie) is the author of The Crime of Aggression under the Rome Statute of the International Criminal Court (2nd edition, Cambridge University Press, 2021).

Image description: Vladimir Putin behind a desk with a Russian flag in the background

As outlined in part one, there is near universal agreement that Putin has committed a crime of aggression over which the ICC lacks jurisdiction. This has led to alternative prosecution options being explored.

Domestic prosecutions

At least 74 States have domestic aggression offences. The majority refer to ‘wars of aggression’ (the focus of ‘crimes against peace’, prosecuted before the Nuremberg and Tokyo Tribunals), which captures a narrower range of conduct. But this complication is not presently relevant: Russia is most definitely waging a war of aggression. Most States would, however, lack jurisdiction on the basis of present facts, given the scope of jurisdiction of these offences is limited to scenarios where the country concerned has been an aggressor or victim State.

Ukraine has criminalised aggression under Article 437 of its Criminal Code, enjoys territorial jurisdiction, and has announced that it has opened an investigation.

While it is debateable whether the crime of aggression properly attracts universal jurisdiction under customary international law, at least 18 States assert universal jurisdiction over the crime. This includes Lithuania, which has reportedly opened an investigation in relation to aggression and other crimes.

Poland asserts jurisdiction over aggression that is more akin to the protective principle: it too has reportedly opened an investigation that extends to aggression.

Any domestic prosecution would, however, be difficult.

As detailed in my book, The Crime of Aggression under the Rome Statute of the International Criminal Court (2nd ed, 2021, Cambridge University Press), while the law might be in a state of flux, the prevailing view is that Heads of State enjoy immunity from criminal proceedings in foreign domestic jurisdictions during their term in office in respect of both ‘official’ and ‘private’ acts, even when accused of serious international crimes. Once Putin leaves office, he could be prosecuted for private acts – but it is difficult to accept that the use of force against Ukraine is such an act.

Domestic jurisdictions are unlikely to secure Putin’s presence absent the cooperation of future Russian authorities. While trials in absentia are permitted in some jurisdictions (including Ukraine) they lack credibility.

Any domestic proceeding will struggle to escape the taint of victor’s justice or, as the case may be, victim’s revenge.

As such, it is with good reason that the International Law Commission, among others, has in the past recommended that aggression only be prosecuted on the international plane.

 

An ad-hoc international or hybrid tribunal

In light of the foregoing, the creation of an ad hoc international or hybrid criminal tribunal has been proposed (see here, here and here).

Such a tribunal could be established by multilateral treaty, based on a delegation of Ukraine’s territorial jurisdiction. Alternatively, a hybrid tribunal based on the precedent of the Extraordinary Chambers in the Courts of Cambodia or the Special Court of Sierra Leone could be established through an agreement between Ukraine and the UN.

On the basis of the ICC decision in relation to former President Al-Bashir of Sudan, at least a tribunal given the imprimatur of the GA would arguably be of a sufficiently international character to overcome the problem of immunities. While such a court could not compel Russian cooperation, it could compile a brief of evidence and issue an arrest warrant, inviting States to execute it, which would limit Putin’s capacity to engage on the international stage. In the event of Putin’s loss of power, I also think that Russian cooperation with such a tribunal would be more likely than with the ICC, in relation to which Russia has voiced wide-ranging objections.

It would be essential that the constitutive instrument of any such tribunal replicates the Rome Statute definition of the crime to avoid fragmentation of the law. Equally important would be the need to ensure that the tribunal’s work is complementary to that of the ICC. In practical terms this could be achieved by the conclusion of a cooperation agreement, which could address matters such as the sharing of evidence and the sequencing of trials.

In symbolic terms, support for the ICC could be underscored by the ratification of the Rome Statute and the aggression amendments. This would also go a long way towards addressing criticisms of selectivity and double standards. It is true that these criticisms are unlikely to be eliminated. It also goes without saying that victims in places such as Syria and Yemen are no less deserving of justice than those in Ukraine. But our current inability to deliver justice perfectly should not be a reason to avoid the pursuit of justice that is within our reach.

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