[Kate McInnes is a practicing lawyer based in Vancouver, Canada, and a student in the M.Sc. in International Human Rights Law program at the University of Oxford]
The creation of the Special Tribunal for the Crime of Aggression against Ukraine (STCAU), a courtroom embedded throughout the Council for Europe framework, marks a historic effort in securing accountability for the most devastating conflict in Europe since World Conflict II. It’s a essential step towards rectifying the fractured international order and delivering justice to victims of an unlawful battle of aggression, to which both states and individuals should be held accountable.
Embedded inside its enabling statute, nonetheless, is a political compromise that threatens to undermine justice for Ukrainians and the credibility of worldwide justice extra broadly. The STCAU’s singular objective, per Article 1, is “to research, prosecute and check out individuals who bear the biggest duty for the crime of aggression towards Ukraine.” But Article 23(5) expressly prohibits the affirmation of an indictment if the accused is a sitting head of state, head of presidency, or overseas minister, and successfully suspends proceedings till that individual both leaves workplace or waives immunity. Taken collectively, Article 1 and Article 23(5) create a contradiction: the STCAU Statute creates a tribunal with an unique give attention to apex perpetrators, whereas concurrently immunising lots of these very people — specifically, entrenched, authoritarian “strongmen” in Russia, Belarus, and probably North Korea — from prosecution.
A lot has been mentioned in regards to the legality (or illegality) of the form of immunity offered in Article 23(5), with the crux of the controversy centred round whether or not the STCAU can correctly be conceived of as an “worldwide” courtroom (see, for instance, Coracini and Trahan, de Hoogh, Eboe-Osuji, Hamilton, Heller, McDougall, and Mullin and Stanton). These arguments relaxation on the idea that the STCAU is a product of the standard corpus of worldwide legislation.
This text doesn’t search to rehash these wealthy authorized arguments, however to view the difficulty via an alternate lens. At its core, Article 23(5) displays the swelling affect of a so-called “rules-based worldwide order” (RBIO) over the standard post-war worldwide authorized order. As John Dugard argues, RBIO capabilities much less as a coherent authorized system and extra as an amorphous regime of pseudo-law which weakens efforts to maintain “a common system of worldwide legislation premised on the identical elementary guidelines, ideas and values.” Below an RBIO, authorized establishments discard or reinvent the established ideas and authorized guidelines generated over the previous 80 years, as a way to serve an (usually) America-centric agenda. The consequence isn’t authorized innovation, however authorized erosion within the identify of political compromise.
This text argues that Article 23(5) is a manifestation of RBIO’s troubling ascendancy. It additionally alerts a deeper concern that political technique, slightly than precedent and principled authorized reasoning, is shaping the structure of worldwide justice.
The STCAU’s Paradox: Concentrating on the Apex, however Suspending Justice
The STCAU’s Statute distinguishes itself from the devices of different “internationalised” mechanisms in no less than two respects, which, taken collectively, expose a foundational contradiction.
First, the STCAU’s Statute imposes a extra exact and aspirational ambit than the Rome Statute of the International Criminal Court or the statutes of different internationalised tribunals. The aim of the STCAU, per Article 1, is “to research, prosecute and check out individuals who bear the best duty for the crime of aggression towards Ukraine.” The Rome Statute, against this, has a broader jurisdiction ratione personae that extends to “individuals for probably the most critical crimes of worldwide concern”. Of the “internationalised” courts, the jurisdictional formulation within the Statute of the Special Court for Sierra Leone (SCSL) is the closest to that of the STCAU in specializing in people “who bear the best duty for critical violations.” Nevertheless, the SCSL Statute, like all internationalised courts and the Rome Statute previous to the Kampala Amendment, didn’t embody the crime of aggression inside its mandate, thus limiting its comparability right here.
The narrowing of private jurisdiction within the STCAU State to these on the apex of decision-making authority over the crime of aggression arguably duplicates the weather of the crime itself — which, below Article 2(1), requires the “planning, preparation, initiation or execution” of aggression by somebody able to successfully train management over or direct “the political or army motion of a State”. Article 1 displays RBIO’s affect as a result of it inflates authorized language to serve political optics. For the drafters of the STCAU, in search of accountability for anybody who satisfies these parts of the crime is secondary to the symbolic impression of concentrating on these on the prime of the ladder.
The language of Article 1 makes the second function of the STCAU Statute all of the extra putting. Regardless of its express give attention to holding these with the “biggest duty” accountable for the crime of aggression, Article 23(5) grants absolute private immunity to sitting heads of state, heads of presidency, and overseas ministers — in different phrases, exactly the people more than likely to satisfy that threshold.
In home legislation, private immunity shields these high-ranking officers from the jurisdiction of home courts, as affirmed by the Worldwide Courtroom of Justice within the Arrest Warrant case and supported by selections in home courts. This immunity doesn’t lengthen to worldwide courts, because it derives from sovereign equality amongst states, which doesn’t apply to worldwide judicial our bodies. The STCAU, nonetheless, codifies it instantly into its statutory framework at Article 23(5), which reads:
The place the indictment considerations a head of State, head of presidency or minister of overseas affairs, the Pre-Trial Choose shall not affirm the indictment and shall order the proceedings be suspended till that individual now not holds that workplace or an acceptable waiver has been offered to the Particular Tribunal. In the course of the suspension, the Pre-Trial Choose shall not in any other case act upon the indictment.
Article 23(5)’s codification of private immunity stands in stark distinction to the statutes of predecessor courts, which have usually explicitly acknowledged that such immunities is not going to bar jurisdiction (see, for instance, Article 27(2) of the Rome Statute). Extra essentially, it additionally marks a departure from the very origins of the crime of aggression, as discovered within the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, which rejected the concept that heads of state might take pleasure in immunity for perpetrating a battle of aggression, on the idea that such impunity would “shock the conscience of civilized mankind.”
In as we speak’s international context, the implications are profound. The people who probably bear the “biggest duty” for the crime of aggression towards Ukraine are entrenched “strongmen.” They don’t preside over functioning democracies the place free and honest elections may provide a path to their elimination, nor do they lead collapsing regimes on the verge of implosion. They’re authoritarians who’ve consolidated home energy and can solely relinquish it upon dying or complete regime collapse. A latest New York Instances exposé gives a well timed reminder that entrenched leaders could even weaponize battle itself as a way of staying in energy.
The deferral of justice, enshrined in Article 23(5), isn’t a short lived delay of justice. It might be, for these actors, a digital assure of lifelong immunity.
The STCAU: An Worldwide(ised) Tribunal? RBIO and the Blurring of Authorized Classes
Taken collectively, Article 1 and Article 23(5) set up a contradiction: whereas the STCAU is tasked with figuring out and prosecuting these bearing “the best duty” for aggression towards Ukraine, it concurrently erects a procedural protect round lots of these very perpetrators.
A central query turns into: does the STCAU qualify as an “worldwide courtroom” for the needs of worldwide legislation? Extra particularly: might the STCAU have lawfully put aside private immunities ordinarily accorded to high-ranking state officers below customary worldwide legislation?
The query of whether or not the STCAU qualifies as an “worldwide courtroom” within the classical sense — by which private immunities may very well be prevented — additional underscores RBIO affect. The STCAU’s institutional design resists classification. It was not established via a multilateral treaty regime (as with the ICC) or pursuant to the Safety Council’s Chapter VII mandate (as with the ICTY or SCSL), the place jurisdiction is extra clearly rooted in collective state consent (see Robinson et al, p. 498, and Mullin and Stantin; extra typically, see Sadat). But its construction, mandate, and origins as a courtroom constructed by a coalition of states place it effectively past the scope of a purely home courtroom working with overseas help.
Kevin Jon Heller has argued that there’s “no argument {that a} [tribunal for aggression] created by the Council of Europe and Ukraine qualifies as ‘worldwide’ throughout the that means of [the] Arrest Warrant case.” However the inclusion of Article 23(5) clearly alerts the tribunal’s aspiration to some type of worldwide competence. If the STCAU regarded itself as something different than a world courtroom, the difficulty of immunities for overseas officers would absolutely be irrelevant. On the very least, its statutory language alerts that the tribunal occupies a legally ambiguous area that isn’t as clear-cut as Professor Heller would counsel.
The STCAU’s ambiguity is a trademark of RBIO’s fragmentation, by which the phrases of the sport are dictated by political whim. RBIO blurs authorized typologies — between worldwide, internationalised, hybrid, and home courts — and permits political expediency to form the jurisdiction of tribunals in ways in which depart from precedent and traditional worldwide legislation.
Article 23(5)’s Influence: A Pragmatic Concession or Entrenching Impunity?
I respect that “the strongman’s clause” was a essential political compromise. In keeping with the Asser Institute’s assessment of the STCAU’s Statute, Article 23(5) was the end result of a paper coauthored by Germany and — to no shock to subscribers of the RBIO thesis — the US. This qualification was important to securing the diplomatic help and votes required for the tribunal’s creation. With out it, the STCAU wouldn’t have come into existence in any respect.
Considered from this angle, Article 23(5) is a realistic concession which presents the prospect of accountability for a lot of potential perpetrators who don’t fall throughout the private immunity troika. In that sense, the STCAU isn’t in contrast to different worldwide(ised) courts, all of that are constructed on compromise. Such trade-offs are, to some extent, inherent to the system.
This rationale, nonetheless, displays the troubling logic of the RBIO, which allows authorized innovation solely insofar because it accommodates political pursuits, and at the price of undermining core authorized norms and the legitimacy of worldwide justice as a complete. A number of the most vital advances in worldwide justice have stemmed from artistic efforts to reconcile the legislation with political actuality, however that creativity has at all times been rooted in precept; it has constructed upon precedent or, on the very least, departed from it in a reasoned and principled means.
On this gentle, Article 23(5) is a transparent expression of the structural pressure between the RBIO and the post-war authorized order it’s slowly supplanting. It alerts a shift towards a world authorized structure more and more formed by political calculus, slightly than coherent, universally utilized ideas. The consequence isn’t merely an exception to the principles — it’s rewriting the principles themselves.
