The US agrees that Putin should be tried for the war against Ukraine. But thereʼs no agreement to the Special Tribunal. Why and how to change this? Interview with Mark Ellis, a lawyer who has worked with tribunals

Since the beginning of the full-scale invasion, Ukraine has been convincing the world to create a Special Tribunal for the crime of aggression — it is needed precisely because itʼs impossible to bring the political and military leadership of Russia to the International Criminal Court, which has already issued a warrant for the arrest of Russian President Putin. The informal coalition to punish Putin includes 36 countries. The best and only option that would suit Ukraine is to create a tribunal via the United Nations mechanism. Such a tribunal will be able to overcome Putinʼs presidential immunity, and will also deprive Russia of the opportunity to devalue the court. In the spring, the United States announced that it does not support a special tribunal, but a so-called internationalized one, which is based on Ukrainian legislation, but with an international component — in particular, international courts will be added to Ukrainian courts. This option does not solve key issues. It cannot overcome the immunity of the president, it does not correspond to the Ukrainian Constitution and will not have legal weight. Last week, the International Association of Lawyers adopted a resolution calling on all UN member states to support the creation of a Special International Tribunal on Russian aggression. The executive director of the International Association of Lawyers is an American expert on international law, Mark Ellis. He has extensive experience working with various international tribunals and knows how to prosecute those responsible for international crimes. Babel journalist Oksana Kovalenko spoke with Ellis about how to convince the US to support the Special Tribunal on Russian aggression.

Earlier, international tribunals, for example regarding Yugoslavia or Rwanda, were created through the UN Security Council. But Russia is a permanent member of the Security Council, has the right of veto and will block any resolution. Is it possible to create a Special Tribunal on Russian aggression based on the decision of the UN General Assembly, so that Russia would never be able to question the legitimacy of the decision of this tribunal?

Some UN member states and legal theorists believe that only the UN Security Council can properly establish an International Criminal Tribunal. However, an agreement between the UN and Ukraine through the General Assembly is indeed a legally possible option. There were such cases in history. For example, an agreement between the United Nations and the Royal Government of Cambodia created the Extraordinary Chambers in the Courts of Cambodia (ECCC). The agreement was then approved by the UN General Assembly, not the UN Security Council.

How should this happen?

The United for Peace resolution, which was voted on the proposal of the USA back in 1950, is important here. It was created in order to circumvent new vetoes of the Soviet Union during the Korean War. The resolution expressly states that if the Security Council, due to the lack of unanimity of the permanent members, fails to fulfill its main task of maintaining international peace and security or when there is a threat of an act of aggression, the General Assembly shall immediately consider this matter in order to provide appropriate recommendations to the members of the UN. In particular, in the event of a breach of peace or an act of aggression. On this basis, the General Assembly can recommend or send a request to the UN Secretary General to conclude an agreement with Ukraine on a special court for the crime of aggression.

Then what legal decision or amendment should be adopted so that the USA agrees to the Special Tribunal and does not see a threat to its national interests? Is there a way?

On March 27, US Ambassador for Global Criminal Justice Beth van Schaak announced that the United States supports the development of an International Tribunal that will prosecute for the crime of aggression against Ukraine. However, she noted that the US supports an "internalized national tribunal".

The New York Times reported that Beth van Schaak did not want to set a precedent that could pave the way for a similar trial to haunt American leaders. Indeed, the United States has always strongly opposed such tribunals. Washington even threatened an international tribunal [the International Criminal Court] that could rule on US actions. And so the United States is unlikely to support an international tribunal that could potentially be repurposed or expanded to deal with cases of aggression by other countries, including the United States.

However, the hope that if the US supports the idea of creating an "internalized national court" it will prevent the formation of courts against the US is rather questionable. Because the precedent will appear anyway. That is, any state that is a victim of aggression will be able, with the support of allied states, to create an international court and prosecute the aggressor.

And do I understand correctly that the US believes that the hybrid tribunal will not create such a precedent and will not threaten them?

Some argue that an internationalized hybrid national tribunal is easier and more correct to create. However, such a tribunal could still be problematic for the US, as it would set a precedent where several countries, including Russia or China, could set up an international tribunal directed against the US. However, I think that this internationalized ― hybrid national tribunal ― will be viewed by the US as the best model.

What can be done to convince the US to support the Special Tribunal, rather than a hybrid model?

I donʼt think there is much to offer to convince the US to support a truly international tribunal. The US has long expressed its distaste for such a model. This issue is political, not legal. The only way I see for the scenario to change is if a significant number of states support the resolution on an international tribunal in the UN General Assembly, and among these states will be Germany, France, Great Britain and other "weighty" countries. However, today we do not see this movement. For example, Great Britain and Germany have already spoken in favor of a hybrid national model.

As far as I understand, the main reason is that the US, as a leading country, could do things that could also be seen as aggression. How to prevent risks for the US? They had experience, having participated in various international courts, including the International Military Tribunal for the Far East, the Nuremberg Trials, and the tribunals for the former Yugoslavia and Rwanda. So why is Ukraine different?

Because none of these prosecution mechanisms that you mention dealt with the crime of aggression other than Nuremberg. But Nuremberg was very different from any modern mechanism. The United States actively fought against Nazi Germany and became the only world superpower. They did not have to deal with opposing forces.

Earlier, during World War I, when the Treaty of Versailles held Kaiser Wilhelm II accountable for aggression, the US strongly opposed it. They maintain the same position even now. And, of course, the US does not support the International Criminal Court. So, the point is not that Ukraine is different, but that the United States consistently opposes any international mechanism that could then be used against the United States. You might call it "American exceptionalism." I categorically do not agree with the US position, but it is so. I think that the US will actively support the Special Tribunal against Putin, but its modality must be consistent with the interests of US self-preservation.

And yet, how can Washington be persuaded to support a resolution in the General Assembly?

It is in the US interest to support the Special Tribunal to prevent possible future acts of aggression, especially if it could help deter China from invading Taiwan.

In addition, on March 2, 2022, the UN General Assembly adopted the resolution "Aggression against Ukraine". The USA supported it. Therefore, it would be a logical next step to support the Special International Tribunal. If this is not done, it will be a humiliation for President Zelensky, who stated that the crime of aggression can be overcome only in this way. The US Congress rightly supported Zelensky with a resolution that "calls on the American president to support the creation of a special tribunal to punish the crime of aggression against Ukraine."

According to the scenario currently supported by the US, this would be "selective justice". In addition, there are many legal obstacles to creating a court based on Ukrainian law, which would nullify all efforts to bring those responsible for the aggression to justice. The US would hardly like to be held partly responsible for this failure.

Translated from Ukrainian by Anton Semyzhenko.

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