*This piece was originally published on Nederland Rechtsstaat 20 March 2023
A little over a year ago I wrote a blog on this forum in response to the war that broke out in Ukraine as a result of the unlawful aggression committed by Russia. In that blog I called for the rapid and effective deployment of (international) criminal law in response to the aggression and war crimes committed by Russia.
Regarding the role the International Criminal Court (ICC) can play in the investigation and prosecution of international crimes committed in Ukraine, I mentioned in my previous blog that it is disappointing that the ICC has no jurisdiction over the crime of aggression, but that it does have jurisdiction over war crimes and crimes against humanity. At the time I had some concerns about a possible ICC investigation into war crimes, namely that the ICC would act too hesitantly and cautiously. Now a year later I must admit that my fears are unfounded and that with the recent arrest warrants against Putin and Lvova-Belova dated 17 March 2023, the ICC has shown that it is properly and energetically tackling the investigation and prosecution of war crimes in Ukraine.
In the past year there has also been a lot of discussion about whether a new special international tribunal for the crime of aggression should be set up in addition to the prosecution of war crimes at the ICC. In this follow-up blog, I will discuss both developments (the arrest warrants of the ICC and a possible new international aggression tribunal), how they relate to each other and what the position of the Netherlands should be.
First, two preliminary observations are in order:
What we have seen over the past year in the war waged in Ukraine is nothing short of atrocious. The -unnecessary and cruel- loss of many young soldiers' lives is already extremely saddening, but not directly relevant from a criminal law perspective; under prevailing interpretations of the laws of armed conflict the military opponent may be attacked and killed in wartime. War crimes, however, cannot be committed and should not go unpunished. The stories and reports that come out about the war in Ukraine show that innocent civilian casualties are being made on a very large scale.
The war crimes in Ukraine are mainly committed by the Russian armed forces, on a scale and in a manner that shows that international humanitarian law (IHL) has little value for Russia. The evidence for a multitude of war crimes is piling up, and there is nothing to suggest that the situation could improve. Given the nature, scale and particular brutality of the war crimes already committed, the need for a criminal justice response remains as great, if not greater, than the situation a year ago.
Another initial remark I would like to make is that outside the international framework for the enforcement of atrocity crimes (ie the ICC and the discussion about an aggression tribunal), many criminal investigations and prosecutions are already happening, which escapes popular attention somewhat. Ukraine itself is and will continue to be very active in prosecuting those suspected of war crimes before its national courts, under difficult circumstances and in compliance with due process standards. Although this blog is not about the domestic justice response, the national prosecution of war crimes in and by Ukraine is of particular importance; when answering the question of the optimal criminal justice response to Russian aggression and war crimes, we should not solely be focused on existing and/or new international tribunals and, in particular, offer help and support to Ukraine in their national prosecution efforts.
2. The arrest warrant against President Putin and Lvova-Belova
According to the ICC’s press release, on 22 February 2023, the Prosecutor of the ICC, Karim Khan, requested ICC Pre-Trial Chamber II (PTCII) to issue arrest warrants against President Putin and Ms. Lvova-Belova, the Russian Children's Rights Commissioner. This application was granted on 17 March 2023. The arrest warrants issued by the PTCII concern the war crime of deportation of at least hundreds of children from Russian-occupied Ukrainian territory to Russia, where these children were given Russian nationality in an accelerated procedure and were adopted by Russian families. Both Putin and Lvova-Belova are alleged to be liable as co-perpetrators of these crimes and in the form of command responsibility. The arrest warrants themselves have not been made public; this is in the interests of the investigation and to protect witnesses. The reason for publicly announcing the arrest warrants is that ‘the public awareness of the warrants may contribute to the prevention of the further commission of crimes (…)’.
With these arrest warrants, the ICC Prosecutor has shown that he is pursuing the investigation with vigour, and that he would not be hesitant to hold the highest authority, President Putin, accountable in the very first cases. This is to be applauded. The Prosecutor is sending an unmistakable signal that the ICC is on top of the criminal offenses in Ukraine and will stick to it and do precisely what the ICC was created for: to prevent as much as possible impunity for the most serious crimes, and has so far aimed to focus on the most responsible persons, including heads of state and government.
In my view, the first arrest warrants herald an appropriate first steps towards criminal cases at the ICC in several respects. It is a fairly straightforward accusation. The cases would concern the protection of the most vulnerable in times of war, namely children. The ICC has already shown that it wants to pay special attention to this category of vulnerable victims; in the first ICC cases against suspects Lubanga and Katanga, the focus was already on the protection of children, with the accusation aimed at using child soldiers. Evidence of the deportation of children from orphanages and shelters in Ukraine is abundant and can hardly be disputed. There will also be little or no discussion about the illegality and criminal liability of these deportations. It might be argued as a legal defense to charges against Putin and Lvova-Belova that evacuation of these children was necessary for their own safety. Such a defense was argued by the accused –and rejected –at the Cambodia Tribunal for the Khmer Rouge in the case of the 'evacuation' of the civilian population from Phnom Penh. This does not seem credible to me in the Ukraine Situation since the deportations only extended to these children, not the wider population as a whole group that was in need of protection, and the children’s adoption was then accelerated and unlawfully arranged with a view to the children remaining in Russia. Finally, it is an appropriate case to bring against Putin, as he has undeniably been directly involved in the deportation-operation with his presidential decision; in short, it does not seem very complicated to me to prove his responsibility as a co-perpetrator, or as a responsible superior, for the entire operation.
These arrest warrants are likely to be the first step in a series of investigations and suspects. Any further action from the ICC will require a complicated balancing act between the ambitions and the capacity of the ICC, which must also be able to continue to devote sufficient attention to several other situations. Consultation and coordination with other fora of investigation and prosecution, especially the Ukrainian criminal justice system, are crucial in this respect. I can imagine that the lower-ranking suspects, namely the soldier or battalion commander who murders, rapes or tortures civilian victims, can be properly prosecuted in Ukraine, while the formal and informal (e.g. Prigozhin of the Wagner group) political and military leaders from Russia will be the focus of the ICC.
As I said in my previous blog, these arrest warrants do not mean that there will be a criminal case against the two suspects. Russia is not a state party to the ICC. It is therefore not obliged to cooperate and will not do so without regime change. Without the arrest of the two suspects, one further step in the ICC procedure may be taken: a Pre-Trial Chamber can, in the absence of a suspect, if every effort has been made to ensure his presence, confirm the charges (see art. 61 paragraph 2 sub b ICC Statute). But a trial under the ICC’s prevailing legal framework is only possible in the presence of the accused (see art 63 paragraph 1 ICC Statute), even though some ICC jurisprudence appears to have questioned that rule. Both this case and the case against former president of Sudan, Al Bashir - who has managed to escape trial at the ICC since his arrest warrant in 2009 - are, in my opinion, a good reason to think seriously about the introduction of the possibility of trials in absentia in the future.
Apart from the fact that it is not yet realistic that both suspects will be arrested and handed over to the ICC, there is another 'shadow' hanging over Putin’s arrest warrant, and that is the possible state immunity of Putin as sitting head of state. As long as a head of state suspected of international crimes remains in office, it has always been the case that the law regarding state immunities precludes them being arrested and tried outside their own country. The question is whether this rule also applies when it comes to adjudication by an international tribunal, and - by extension - a member state’s execution of an arrest warrant issued by an international tribunal.
This is a complicated issue. There is a group of countries and legal scholars who believe that the state parties to an international tribunal can jointly agree to waive state immunities for their heads of government and heads of state in relation to the tribunal they have jointly set up, but that they cannot assert an exception to state immunities in relation to countries that are not a party to that international tribunal, in this case Russia. Others, however, believe that international tribunals, which act on behalf of the international community, have an exceptional position and that state immunities do not apply at all to those 'truly international' tribunals; thus this would affect the state immunities of all countries, state party or not.
The highest judicial authority of the ICC, the Appeals Chamber, firmly endorses the latter position and has determined in the case of former President Al Bashir of Sudan that the rules on state immunities only apply between states and not in the relationship with an international criminal tribunal. With this, it seems that state immunities will not benefit Putin in proceedings against him at the ICC; the fact that the arrest warrant against him has been upheld by PTCII shows that the approach taken by the Appeals Chamber still appears to be the prevailing view within the ICC.
But there are some comments to be made here, and as far as I am concerned, it is not yet a foregone conclusion that Putin would not be entitled to immunity in the future at the ICC -or at a future tribunal of aggression (see section 3 below)- if his arrest would take place while he is still head of state.
In the first place, the opinion of the ICC Appeals Chamber that Al Bashir cannot invoke head of state immunity is very difficult to separate from the fact that his criminal case was brought before the ICC through referral by the UN Security Council. It is true that Sudan is not a party to the ICC, but it can be argued that the Security Council equates Sudan’s international obligationswith those of an ICC state-party, f at least insofar as obliging Sudan to cooperate with the ICC, as if it were a party to the ICC Statute. By extension it is plausible that state immunities do not apply in Al Bashir’s case. Putin's situation is, of course, entirely different; Russia has not ratified the ICC Statute nor is the Ukraine Situation a result of a UN Security Council referral – hence there is no clear analogy between the Al Bashir immunities issue and that of Putin’s immunities when it comes to any relationship of Russian cooperation or support towards the ICC.
Moreover, there is a lot to be said about the position of the ICC Appeals Chamber that state immunities do not exist in relation to international criminal tribunals. The independent advisory body of the Dutch government with regard to international law, the Advisory Committee on International Law Issues (CAVV), in a recent advisory report strongly disagrees with the ICC Appeals Chamber. The Committee agrees with criticism of the ICC Appeals Chamber's ruling:
The core of this criticism is that international law does not allow a group of states to impose obligations on third states without the consent of the latter. This is known as the principle of the relative effect of treaties. States cannot therefore simply decide among themselves that the immunity of (a representative) of a third state no longer applies, without the consent of that third state. Even if it is recognized that a group of like-minded states can set up a tribunal of aggression (particularly on the basis of a delegation of jurisdiction), these states cannot, in principle, affect the immunity of a third state that was not involved in the establishment of this tribunal – and over whose officials the tribunal will exercise jurisdiction, if any. Ultimately, states can only delegate to an international tribunal powers that they themselves initially have. States themselves do not have the power to waive personal immunity. In principle, therefore, they cannot delegate that power to an international tribunal. Another important point of criticism concerns the concept of 'international tribunal'. Not every international tribunal acts on behalf of the international community as a whole, and it is unclear what makes a tribunal truly international. Without a clear definition of the characteristics that make a tribunal sufficiently "international" not to recognize personal immunity, the reasoning of the Special Court and the Criminal Court renders persons entitled to invoke personal immunity vulnerable.
The CAVV then concludes that state immunities for sitting heads of state (this is different for former heads of state, but I will leave that aside for now), should still apply in relation to international criminal tribunals if a. the home country of the head of state in question is not a party to the tribunal; or b. there is no basis in Chapter VII of the UN Charter (i.e. a Resolution from the UN Security Council) for the exercise of jurisdiction.
It is extremely difficult to predict where this discussion will ultimately lead in future cases at international tribunals. Substantively, there is little to criticize about the analysis of the CAVV, while the judges of the ICC seem very comfortable with reinterpreting the customary law on state immunities in favour of asserting ICC jurisdiction over individual sitting heads of state. But the CAVV being right on the law at this moment in time is not the end of the matter. The fact is that there is a great deal of discussion about the law on state immunities and that the legal position can change rapidly under the influence of international tribunals. The ruling of the ICC Appeals Chamber is difficult to ignore and - whatever one may think of it - is currently the applicable law on the matter and has been further strengthened as a precedent with the arrest warrant against Putin. I have no objection to this development, provided that the conditions for the non-applicability of state immunities before certain other international tribunals are made clearer.
In this context, I am in agreement with a trend to broaden the category of international tribunals where state immunities do not apply, thus going beyond the situation of states-parties or UN Security Council referrals. I would say that because of the size (124 states-parties), the way it was established, its mandate and the permanent nature of the ICC, there is sufficient reason to consider the ICC as an international tribunal to which state immunities of non-party states do not apply; the same could apply to tribunals established with close involvement of the UN, such as a treaty between a state and the UN (eg the Cambodia Tribunal or Sierra Leone Court). But in the case of a regional tribunal or temporary international tribunal involving only a few states, state immunities of non-party states should apply in full.
3. Is it desirable to set up a special international tribunal for the crime of aggression?
In my blog from a year ago I noted that there is currently no forum where the crime of aggression that Russia - and also Belarus - committed against Ukraine can be prosecuted. National prosecution, for example in Ukraine, is not possible due to state immunities (see above) and the ICC has no jurisdiction over the later added crime of aggression. This lacuna has led to calls to set up a new international tribunal that would focus exclusively or mainly on the prosecution of Putin et al. for the crime of aggression. Others have argued that the establishment of such an aggression tribunal is not a good idea.
Within the international community, the EU seems to be taking the lead and is proposing a new aggression tribunal to be set up. In November 2022, the EU Commission published a document containing two options for the establishment of an aggression tribunal. In February 2023, the International Center for Prosecution of the Crime of Aggression against Ukraine (ICPA) was established within Eurojust. This center aims to ‘support and enhance investigations into the crime of aggression by securing key evidence and facilitating case building at the earliest possible stage’. It can be regarded as a step towards a fully-fledged international aggression tribunal. The establishment of such a new international tribunal is the emphatic wish of Ukraine.
The question that must be asked - after more than one year of war and after the recent issuing of arrest warrants by the ICC - is whether the establishment of an international aggression tribunal is desirable. As far as I am concerned, there are four reasons in favour of establishing an aggression tribunal.
First, without the establishment of a separate tribunal, the crime of aggression by Russia will go unpunished.
Secondly, a new tribunal offers the opportunity to develop a revised set of rules of criminal procedure specifically for the tribunal. On several points this could diverge from the ICC and, for example, provide for Putin et al. to be tried in absentia, so that justice can also be done without the presence of the suspect.
Thirdly, in addition to establishing criminal liability, a newly established tribunal for aggression could provide a legal basis for the definitive expropriation of the frozen assets and property of wealthy Russians in Europe. In total, this concerns about 319 billion euros, which the EU has already indicated that it would like to use for reparations to Ukrainian victims and the reconstruction of Ukraine. The ICC Statute only offers the possibility of confiscation of proceeds, goods and assets obtained directly or indirectly through a crime (art. 77 paragraph 2 sub b ICC Statute), and therefore offers an insufficient basis for broad reparations linked to the crime of aggression.
Fourth, one could welcome a new tribunal of aggression because - in consultation and coordination with the ICC - it could somewhat ease the ICC’s task of preventing impunity; in other words, a wider net to prevent impunity, with multiple options for prosecution, can be a good thing.
At the same time, there are also objections to the new aggression tribunal. I would emphasize five important points to consider in the current debate. First, as Kevin Heller has already pointed out there is the objection of selectivity and arbitrariness. It is indeed remarkable that states within the ICC were unable to reach agreement on a broader jurisdictional regime for the crime of aggression - with which the ICC could simply have tried Putin et al. for aggression itself at the moment - and that various states are now creating an ad hoc tribunal, for Putin only. The idea of establishment of an aggression tribunal for Putin would be more credible if it were accompanied by a campaign to lift the ICC's jurisdictional restrictions on aggression by means of an amendment to the Statute. And this is not happening, which makes the criticism of selectivity and arbitrariness justified in my opinion.
The same point of criticism -selectivity and arbitrariness- applies to the procedural advantages that a new aggression tribunal to be set up could provide compared to the ICC, namely enabling trials in absentia and providing for broader options for confiscation and reparations. These are also points that are to be addressed preferably within the ICC.
Second, there is the question of immunities. I have already addressed the continuing uncertainty about whether or not state immunities will apply to heads of state and government when tried by an international tribunal whose jurisdiction they do not recognize. It is true that this law is in development and the establishment of an international tribunal of aggression may go hand in hand with very strong UN involvement (this is also the wish of the EU, the driving force behind the establishment of an aggression tribunal). But it is not yet known for sure that strong involvement of the UN will be realized, and whether the nature and scope of possible UN involvement will suffice to justify an exception to state immunities. Moreover, the heads of state and government who are now pushing for a certain erosion of state immunities when it comes to an international trial of Putin et al. should realize that this could also turn against them at some point in the future, in a situation where they themselves are considered suspects.
Third, we need to think about the truth-telling function of such a tribunal. I wonder how bad it would ultimately be if Putin et al. did not have to appear before an international tribunal for the crime of aggression. Since, in addition to aggression, Russia has also committed a multitude of war crimes - and since an arrest warrant has already been issued against Putin for one of those war crimes – we are no longer facing a situation where no international tribunal would be available at all to hold Putin et al. criminally liable. The added value of delivering international justice is not only norm expression and reparation towards victims, but as far as I am concerned, it is importantly about factfinding, and discovering the truth. When war crimes are committed, there can be confusing and complicated factual situations in which an international trial leads to the presentation of the available evidence and, on that basis, the establishment of the facts and, where appropriate, criminal liability. The crime of aggression committed by Russia hardly raises any questions of evidence; the act of the Russian military operation into Ukraine is not disputed, even by Russia, and it is clear who is responsible in a criminal sense, namely the Russian political and military leaders. Even though Russia (and others who support Russia) may dispute the legality of the invasion, if not for whole of Ukraine, at least for certain regions, the truth that a military operation on Ukrainian soil has taken place is not contested. Using a criminal tribunal to establishhe truth seems thus less of a priority to me when it comes to the aggression committed by Russia. This is especially so given that the International Court of Justice already held that Russia ‘shall immediately suspend the military operations that it commenced on 24 February’.
There is a fourth reason that the establishment of an aggression tribunal would not be desirable. The establishment of a new international criminal tribunal is a costly affair and requires a lot of stamina. The added value of a criminal case against Putin et al. for aggression against Ukraine after, for example, several years of issues concerning the establishment of said tribunal and further investigations is perhaps less great than we would think.
Fifthly and finally, we need to think about the relationship between the new aggression tribunal and the ICC. As I mentioned earlier, in the case of adequate coordination, there can be a good division of labour and mutual reinforcement. But there is also a risk that - despite all good intentions - the new aggression tribunal will be regarded as a competitor of, or an alternative to, the ICC and that the question arises of what the value and relevance of the ICC actually is if another tribunal is also needed.
All things considered, I am not yet convinced that an aggression tribunal for Putin et al. is desirable. The recent developments, particularly the ICC arrest warrant against Putin, strengthen my conviction that the Ukraine investigation is in good hands with the ICC, despite earlier concerns I expressed about this. In this context, we should not forget that the aggression committed by Russia, despite the fact that the ICC has no jurisdiction over that crime, can certainly play a role in war crimes investigations and prosecutions. Prosecutor Khan already pointed out in his press release that the deportations of children took place in the context of an unlawful war of aggression. I can well imagine that the context of an unlawful war of aggression will play a role in a possible later criminal case as an aggravating circumstance in sentencing.
Abandoning -or suspending- the idea of an aggression tribunal does not prevent the EU from establishing, with the help of other countries, a different type of international legal body that would focus on the expropriation of frozen Russian bank assets and property, with the aim of ensuring reparations and compensation for victims. As far as I am concerned, such a ‘claims tribunal’ would fill more of a gap than an aggression tribunal. It can make an essential contribution to the palette of remedies for Ukraine and victims. Should future efforts focus more on such a 'claims tribunal', then I can imagine that a necessary condition for further -financial- compensation is that this court first determines that there has been aggression, who is responsible for this, and who are the victims of this. This means that an international tribunal will still rule on the crime of aggression, albeit not in the form of international criminal liability. But that seems to me, again, less important at the moment now that Putin et al. are being prosecuted at the ICC.
4. The position of the Netherlands
It emerges from paragraphs 2 and 3 that my view is that the ICC deserves broad support in further investigation and prosecution of war crimes committed in Ukraine and that I consider the establishment of a new international tribunal for aggression less opportune at present. But what does the Netherlands think?
The Netherlands is clearly a staunch supporter of all initiatives that have been taken - and may still come - to hold suspects of international crimes in the war in Ukraine criminally liable. In his speech on 3 March 2023 at the United for Justice Conference in Lviv, Minister Hoekstra of Foreign Affairs expressed it as follows:
I want to thank President Zelenskyy, Minister Kuleba, and Prosecutor-General Kostin for hosting us here today. We are in this with you, and will help you in any way we can. The ICC is making a strong effort to investigate crimes committed here. The Netherlands is supporting these efforts by providing forensic teams. We're also an active member of the core group on the establishment of a tribunal on the crime of aggression. We will host the International Center for the Prosecution of the Crime of Aggression in The Hague. And we will host a register of damage, in consultation with Ukraine and our European partners. As we said at last year's Ukraine Accountability Conference in The Hague: we are in this together. There, we discussed the need for increased coordination on accountability initiatives. Forty-five states expressed their political commitment to a Dialogue Group to achieve this goal. To bring parties together, to exchange information, and to improve cooperation. Today, I am proud to announce the official launch of this Dialogue Group, together with my colleagues from Ukraine, ICC Prosecutor Khan, EU Commissioner Reynders and Eurojust President Hamran. This Group will provide states, international organisations, and civil society with a platform to discuss and update each other on national and international accountability initiatives. To strengthen coherence and identify needs and opportunities.
Earlier reports show that Minister Hoekstra supports the ICC and is in favor of a new aggression tribunal to be set up, which he would like to see set up in The Hague. However, ICC Prosecutor Khan has expressed concerns on the establishment of a new aggression tribunal and that this could lead to unnecessary fragmentation of investigations and prosecutions; in his view, it would be better to consolidate and strengthen the ICC and to resolve any gaps within the ICC framework.
It is obvious to ask the Dutch Minister of Foreign Affairs - and the Minister of Justice who be attended a conference in London on March 20 on strengthening and supporting the ICC in the Ukraine investigation - what they think about the objections that have been raised with regard to setting up a new aggression tribunal. The Ministers could also be asked how they view the issue of state immunities and the position taken by the CAVV that a new aggression tribunal cannot simply set aside these state immunities. As far as I am concerned, it is also important to know whether the Netherlands, like the ICC Prosecutor, sees problems in the increasing fragmentation of accountability systems and related investigations. Finally, there is the question of whether instead of a criminal law focus on the crime of aggression, one should rather create an international tribunal that is about the expropriation of frozen Russian bank assets and goods with the aim of realizing reparations and damages. Not only is this the real gap, but this ambition seems complicated enough to me.
It seems that the Netherlands is not very critical when it comes to initiatives to set up international tribunals, as long as they are housed in The Hague. But it follows from this blog that more is not always better and that the quality and credibility of the entire international criminal justice project, as it has taken shape over the past three decades (since the establishment of the Yugoslavia Tribunal in 1993), does not always benefit from ad hoc solutions and creations, while the position of the permanent institution (ICC), and the need for improvements there, remains underexplored.
More than a year of war in Ukraine has made it clear that the criminal justice response from the international community must not fail. It is positive that - despite previous concerns - the ICC has responded appropriately and effectively to the crimes committed during the war in Ukraine. An extensive investigation has been conducted, which has now resulted in arrest warrants against President Putin, among others, for war crimes. It is to be expected that more arrest warrants will follow, and that the ICC will commit itself to prosecuting war crimes in Ukraine in the coming years.
At the same time, there are plans to set up a separate international tribunal to try the crime of aggression, as the ICC has no jurisdiction over it. There are definitely reasons to set up such a tribunal, such as preventing impunity for this specific crime. But there are also objections to its establishment, such as the fragmentation of investigations and prosecutions, and the creation of double standards (an aggression tribunal for Putin, but no structurally broader jurisdiction for aggression at the ICC). All in all, the establishment of an international tribunal for aggression does not seem desirable at the moment, also because Putin et al. will be prosecuted before the ICC and there is therefore no urgent need to set up such a tribunal to prevent impunity. In my view, there is more reason to set up a separate international tribunal that focuses on the expropriation of frozen Russian assets and goods, with the aim of realizing reparations. This would fill an important gap.
The Netherlands wants to support the ICC and be a pioneer in the establishment of a new aggression tribunal. I conclude that the Netherlands should adopt a more critical attitude towards a possible new aggression tribunal, even if such a tribunal were to be seated in The Hague and strengthen the position of the Netherlands/The Hague as a center of international law, peace and security. It is precisely this last responsibility – enhancing respect for international (criminal) law - that requires the Netherlands to pay more attention to the objections associated with the establishment of an international tribunal for aggression.
*Author's Note: I would like to thank Tom Hamilton and Jöelle Trampert for their valuable comments and feedback, and Srivani Nair for their assistance in editing.