New international criminal tribunals are relatively rarely born, so international lawyers are understandably happy about each new one. Russia’s all-out invasion of Ukraine in 2022 also heightened international political debates about aggression, thanks to which the theoretical basis for the establishment of a new international tribunal has now been created, and now we take a look at based on the available information.
The name of the court is the Special Tribunal for the Crime of Aggression against Ukraine (STCAU).
First question: why do we need a new tribunal when the International Criminal Court could apparently fulfill the task? Primarily because after the initial enthusiasm, it became obvious that that forum could not meet the political requirements. The “triumvirate” of genocide-war crimes-crimes against humanity seems to work fine, but there are very serious problems with the crime of aggression – and this is the most exciting topic for politics and its communication. The issue of aggression is not simple: after a decade after the adoption of the Statute, in 2010, a definition of the crime of aggression was finally hammered into it, but a significant number of state parties heve still not ratified it, and most countries do not even have a domestic legal definition of it, so it seemed easier for states to create a new ad hoc tribunal dealing only with this issue, and the rest can be left to the International Criminal Court.
What is already clear is that the definition included in the tribunal’s statute is based on previous definitional attempts and results of international law – we will return to this issue separately.
Second question: what kind of court will this be? Of the international criminal tribunal models so far, it corresponds to the so-called mixed or hybrid models, i.e. it combines international and domestic legal-institutional elements, and operates and is established with the participation of the state involved in some way. Compared to the “purely” international models, such as the International Criminal Tribunal for Yugoslavia (ICTY) or the International Criminal Court (ICC), we have previously seen such cases in the cases of Sierra Leone (Special Court for Sierra Leone – SCSL) and Lebanon (Special Tribunal for Lebanon – STL), where the judicial bodies were established by agreement between the state concerned and the UN (with the consent of the Security Council).
In the current situation, the agreement was made between Ukraine and the Council of Europe, so this is the first time that the UN and especially the Security Council are left out of the picture. This could pose a serious legitimacy problem in international law, as the Security Council is the only body in the current international legal order where states recognize that it can take a position even in judging the actions of non-party states and reate legal obligations (under Chapter VII of the UN Charter). At the same time, it is obvious that the previous model would not have worked, as a probable Russian veto in the Security Council would not have allowed the institution to be established.
Third question: what are the operational features of the court? One of the most important is that the prosecutor’s office acts on the initiative of the Ukrainian prosecutor’s office, not independently. It has the option to “throw back” the request, so it is not an automatic servant, an extended arm of the Ukrainian prosecutor’s office, but based on this it seems much less independent than the prosecutor’s office of the International Criminal Court, or even that of the previous ad hoc tribunals.
It is too early to discuss many issues in more detail, as the court is not yet operational, but the process of its establishment is already at a point where it is worth taking it seriously. We’ll keep on watching…
Lattmann Tamás honlapja 