“International criminal justice is patient”

by | Jun 5, 2023

An interesting roundtable discussion has been organised in the lecture series of the Supranational Criminal Law (SCL) roundtable discussions on the question of accountability for war crimes in Ukraine and for the crime of aggression. It has taken place in the framework of the 2023 edition of the International Criminal Court Moot Court Competition of the International Bar Association, where our organisation was presented by Tamás Lattmann, general manager, as a judge. The SCL Lecture Series is a series on international criminal law and has been organised, since 2003, by the Asser institute, the Coalition for the ICC and the Grotius Centre for International Legal Studies of Leiden University.

The subject of the roundtable discussion was centred around the International Criminal Court’s arrest warrant for Russian President Vladimir Putin, charging him with orchestrating the abduction of thousands of Ukrainian children and transferring them to Russia for adoption. This marks the first time a major world leader has been indicted by the Court. Additionally, various proposals are getting more and more vocal around the idea of finding a way to prosecute individuals responsible for the aggression by Russia.

Using the opportunity provided by the unique summit of students, experts and academics dealing with international criminal law from all over the world, the organisers have called experts to take a look and exchange ideas about how these developments can affect international criminal law, international institutions, and further development of this field – and of world events and international relations in general. Invited experts were Prof. Michael Scharf (dean of the School of Law of Case Western Reserve University), Prof. Milena Sterio (distinguished professor of Cleveland State University, College of Law) and Myroslava Krasnoborova (liaison prosecutor for Ukraine delegated to Eurojust). The roundtable was moderated by Dr. Mark Ellis (executive director of the International Bar Association).

The roundtable started with the introduction by the moderator, emphasising that the Ukraine war is easily one of the biggest crisis since the second World War, which has driven a vast attention to the question of the crime of aggression, leading to the development of different ideas and models to prosecute that crime.

Professor Scharf emphasised that the international community has not been able to develop a solution for this ever since the Nuremberg trials, mostly because the major powers have been worried and concerned. As a result of this, the 1998 diplomatic conference leading to the adoption of the Rome Statute, the founding document of the International Criminal Court was not successful in adding this crime to the list of crimes under its jurisdiction. Its later amendment in Kampala, 2010 has produced only a limited result, and as a consequence of this the Court does not have jurisdiction over the crime of aggression in the current Russia-Ukraine war, while according to his opinion, this is one of the most important questions of contemporary international law.

Professor Sterio has outlined various ideas about how to create a forum to examine this crime. According to her explanation, there is the possibility to create an ad hoc international criminal tribunal, which had an international treaty as its base. Creating one by the United Nations Security Council (like the Yugoslavia or the Rwanda tribunal) is highly improbable, as Russia would veto any proposal to that. It could be adopted by Ukraine and the United Nations General Assembly, or it could be created as a regional agreement between Ukraine and the Council of Europe or the European Union. It is also possible for Ukraine to create an internationalized, but still domestic court (like the one created in Iraq after 2003, professor Scharf later hinted that the US would prefer this idea) and it is also an option that the domestic courts of Ukraine examine the case based on Ukrainian domestic law – while in this case head of state immunity could mean a serious obstacle to the proceeding.

Reacting to a question by the moderator, Ms. Krasnoborova, a diplomat representing Ukraine has made it clear that the Ukrainian position is very clear: there should be no impunity, but head of state immunity is something that requires serious considerations. After this the moderator asked participants, if the have ideas about how to get around this immunity. Prof. Scharf reminded everyone to the extradition cases from the International Court of Justice and the Charles Taylor case from the Sierra Leone Special Court, and concluded that international tribunals do not have to observe that. He also added that the UN General Assembly seemingly has “dusted off” the Uniting for Peace resolution since February 2022, using it for circumventing the Security Council and a possible Russian veto. This has been supported by the vast majority of member states, while there was a small debate among the speakers related to the weight of various member states and a possible resistance to this method.

However, they have agreed that the current situation stands without precedent. While the International Criminal Court had already had head of states under indictment, but in those cases the Court had acted on a referral by the UN Security Council, contrary to the current situation.

Talking about the referrals by the Security Council, there was a question related to the opinion of the United States and its typical “exceptionalism” and hostile attitude towards the Court. Ms. Krasnoborova emphasised that while Ukraine tries to be proactive in the matter and cooperate with Eurojust, they experience serious assistance from the United States. Professor Scharf added that the current administration has a much more friendly attitude towards international tribunals but there is still significant opposition to that within US politics. Professor Sterio explained that the United States is still concerned about its 2003 Iraqi war being qualified as aggression, which explains this attitude.

The moderator asked participants about the relevance of the indictment of president Putin. Professor Scharf has called it a “game changer”, even with Russian domestic politics, giving momentum to anti-Putin movements. Additionally, it makes the person under indictment a “prisoner in your own country”, narrowing its foreign policy field of manoeuvring. He has noted that all state leaders under indictment have soon fallen from power, even now we can see that Putin already has to face domestic political attacks, e.g. from figures like Prigozhin. Professor Sterio added that this may even be helping Russian opposition, but raised the question, what will happen in South Africa and how will the BRICS states react in the future. Ms. Krasnoborova added that the effect of the indictment on Ukrainian society is also important, it has created a huge unity, which is very important in this period of time.

The next question from the moderator was about how long can the international community support this indictment. Professor Scharf’s somewhat optimistic answer was organised around the idea that Putin probably thinks that the international community will sooner or later get tired, but he thinks that this will not happen. Professor Sterio supported this idea with the statement “international criminal justice is patient”.

The moderator raised the issue of currently more than 90 thousand potential war-related criminal cases existing in Ukraine and asked if Ukraine is able to handle those with proper quality. Ms. Krasnoborova emphasised that this task is up to the local justice system and since 2014, Ukraine has seriously started to develop its capacities. She has agreed with the moderator about fair trial rights and ensuring those being the most important problem related to this question. Professor Scharf has drawn the attention of the audience to the use of “lawfare” by the Ukrainian party, meaning that it is very careful not to commit the same violations and to have fair cases even related to domestic corruption-related cases. All of the participants of the roundtable have agreed that quality of legal defense is of utmost importance, fare trials have to be ensured. The Ukrainian diplomat has added that probably not all 90 thousand cases will be prosecuted in the end.

The last question from the moderator has raised some debate among the panellists. What happens if Russia wins? Will that lead to an end of the current and introduce a new world order? Professor Scharf reminded everyone, that Russia has used its veto power in the UN Security Council fourteen times during the Syria crisis, and as a result of this, the UN General Assembly started to be more active: it has used Uniting for Peace resolution five times since the beginning of the Ukraine War – and the Security Council could not do anything against it. He has argued that a new world order is seemingly being formed, while the moderator argued that some relevant states do not support this, so this optimism is not well-founded. Professor Sterio reminded the audience that the global south becomes more important, just as China, and this contributes to forming a new world. Using this thought, professor Scharf reminded everyone, that against all expectations, China did not conclude a military deal with president Putin a few days after his indictment by the International Criminal Court was published, supporting his earlier position.

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