One year after the day Russia invaded Ukraine, Moscow’s aggression continues. The International Criminal Court, various nations, and advocacy groups from around the globe are investigating a flurry of international crimes attributed to the Kremlin. The list of crimes committed by the armed forces of the Russian Federation in Ukraine is staggering.
Over time, the international community’s resolve for accountability for Russian crimes in Ukraine has hardened. For several months these efforts were in a state of flux and uncertainty as to methodology. As diplomats and politicians have worked to pave a path forward, dedicated investigators have begun the critical work of gathering data, criminal information, and evidence for use by domestic, regional, and international justice mechanisms. The amount of data collected to date points directly to Russia’s grave and serious violations of domestic and international law.
With respect to setting up a justice mechanism to hold Russia to account for its actions in Ukraine, a range of initiatives have been considered. To this end, an important dialog was started early between practitioners, academics, and diplomats with respect to how best to create a legally viable and practically useful justice mechanism for the crime of aggression, specifically. Domestic, regional, and international methods have all been considered.
The key legal hurdles relate to authorities, jurisdiction, and immunities. Fortunately, these hurdles can be overcome as practice and jurisprudence show a clear path to accountability. This path is an international tribunal on the crime of aggression with the backing of the United Nations, that allows the Secretary-General to enter into a bilateral agreement with Ukraine to set up the Special Tribunal for Ukraine on the Crime of Aggression. This has been done before for various other atrocities using courts and mechanisms all with the clear authority of the UN General Assembly to recommend action.
A concern has been the impact of Head of State immunity on the prosecution of the current President of the Russian Federation and his political and military leaders for their aggression against Ukraine. At the international level, Head of State immunity does not apply to political and military leadership if they have committed international crimes. The most important case in the modern era was the investigation, indictment, trial, and conviction of a then-sitting head of state President Charles Taylor of Liberia for violations of international law in West Africa.
The UN created Special Court for Sierra Leone set the cornerstone by which all heads of state can be held accountable for international crimes committed during their tenure as a head of state. The Special Tribunal for Ukraine on the Crime of Aggression would be a justice mechanism similar to the successful efforts of the UN Special Court for Sierra Leone. It is important to note that domestic and perhaps regional justice mechanisms that have been considered may not be able to overcome this legal hurdle. At the end of the day, we have done this before related to heads of state at the international level.
We have had useful discussion and dialog on how to hold President Putin and his henchmen accountable for their aggression against Ukraine. The model developed by practitioners and academics of the Global Accountability Network, in conjunction with colleagues in the United Nations, is the solution by which justice for the citizens of Ukraine can be had for the aggression by the Russian Federation. This new Special Tribunal would work in conjunction with the efforts of the International Criminal Court as that court investigates the war crimes, crimes against humanity, and possibly genocide by the Russian Federation. It would be a joint and coordinated effort.
President Putin is hoping that the international community will not be able to come together to set up this Special Tribunal and it will devolve into a regional or domestic action, weaker half measures without a united international effort for justice. Time and distraction are his ultimate weapons. The international community must prove him wrong and create a UN-backed and supported Special Tribunal for Ukraine on the Crime of Aggression and it must do it soon. Past international tribunals and courts in the modern era have shown that in the face of tyranny and atrocity, the rule of law is the ultimate tool for international peace and security. There is no other viable alternative than an international effort.
**Founding Chief Prosecutor of the UN Special Court for Sierra Leone. Dr. Crane investigated and indicted President Charles Taylor of Liberia for war crimes and crimes against humanity. He is the founder of the Global Accountability Network and has, with other practitioners, drafted the UNGA resolution, the creative statute, and the organization of a Special Tribunal for Ukraine on the Crime of Aggression.
David M. Crane is the founding chief prosecutor of the UN Special Court for Sierra Leone and founder of the Global Accountability Network.
Suggested citation: David M. Crane, The Rule of Law in Ukraine: A Cornerstone to International Stability for the Future, JURIST – Professional Commentary, February 24, 2023, https://www.jurist.org/commentary/2023/02/Crane-Ukraine-Rule-of-Law/.
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