Allan Rock is a former Canadian ambassador to the United Nations and a former minister of justice and attorney-general of Canada. Jennifer Trahan is a clinical professor at the New York University Center for Global Affairs, and convenor of the Global Institute for the Prevention of Aggression.
A core group of countries, including Canada and the G7, is considering how the international community will legally respond to Russian President Vladimir Putin’s actions in Ukraine.
As a sitting head of state, Mr. Putin is immune from the jurisdiction of the domestic courts of any other state. That result flows from the principle that sovereign states are equal: National courts in one state cannot sit in judgment over certain high-level officials of another state. Accordingly, if there are charges to be brought against Mr. Putin, alleging that he committed international crimes in Ukraine, they must be brought before an international tribunal. To be considered “international,” a tribunal must be established under international law and in a manner that represents the will of the international community – the International Criminal Court (ICC) is one example, and Mr. Putin has been indicted before the ICC for allegedly deporting thousands of Ukrainian children to Russia. He cannot successfully assert immunity because the ICC is an international tribunal.
Aggression is a crime under international law, and is the primary concern of the core group of countries. The invasion of Ukraine by Russia in February, 2022, constitutes on its face an act of aggression. The definition of the crime in the ICC’s Rome Statute provides that aggression is committed “by a person in a position effectively to exercise control over or to direct the political or military action of a state.” Aggression is therefore described as “a leadership crime” because it implicates those at the top of the aggressor state’s power structure.
Canada and other G7 states claim to want to prosecute the crime of aggression. Although the ICC has jurisdiction, granted by Ukraine, to prosecute other international crimes that may have been committed by Russia in its territory, the ICC does not, for technical reasons, have the authority to prosecute the crime of aggression there. That is an anomaly that must eventually be corrected by amending the Rome Statute, which will take time. Meanwhile, we need a new international tribunal to prosecute the crime of aggression in Ukraine.
The surest way to create an international tribunal is by resolution of the Security Council under Chapter 7 of the Charter of the UN. But Russia, as a permanent member of the council, would veto the resolution. There are two alternatives: The first is a resolution in the General Assembly (GA) requesting the Secretary-General (SG) set up a court for this purpose. Once the GA approves the resolution, the tribunal is established by an agreement between the UN and Ukraine, and the SG can then appoint judges from the international community. There is little doubt that such a court will be “international” in nature and could prosecute Mr. Putin for the crime of aggression. The second way to establish a truly international court would be for the Security Council to recommend the tribunal under Chapter 6 of the UN Charter; in voting under Chapter 6, a “party to a dispute” (e.g., Russia in the current situation) is obligated to abstain from voting, so if Russia respects that obligation, its veto would be avoided.
Here’s the problem: Members of the core group are at odds. Some support the GA or Chapter 6 route. Others propose a Ukrainian chamber with some international elements. The United States, United Kingdom and Germany have publicly announced their support for that latter approach, which has evolved into the G7 position, although some G7 states are musing about a regional approach that involves “pooling” the jurisdiction of several states. But a Ukrainian chamber, even with some international elements, will still be a national court of Ukraine. And the “pooling” model, without more participants, won’t create a truly international court either. In both scenarios, top leaders will enjoy immunity. The very purpose of the exercise will be defeated.
Canada is supporting the G7 position, namely a Ukrainian chamber with international elements. That must change. How can we establish a tribunal for a “leadership crime” in which the leaders will be immune? G7 states are well aware of this deficiency. Cynics might suggest that they are deliberately avoiding setting a precedent for accountability should one of their own leaders ever be accused of such a crime.
Canadians want to see Mr. Putin brought to justice for starting his catastrophic war of aggression in Ukraine. And Canadians deserve an explanation from their government as to why it is supporting an approach that would leave Mr. Putin above the law.