State Department proposes mixed tribunal to try Russian leaders

WASHINGTON — The Biden administration is calling for the creation of a joint tribunal in which Ukraine and its international allies would try Russian leaders for crimes of aggression, but some human rights lawyers fear the plan has a fatal flaw:

This could protect President Vladimir V. Putin from prosecution.

Beth Van Schaack, the State Department’s goodwill ambassador for global criminal justice, said Monday the administration supports the formation of an “internationalized national court” in which the United States and other allies would assist Ukrainian prosecutors. to sue the Russian leadership for the crime of aggression or unlawful invasion of another country.

“We are committed to working with Ukraine and peace-loving countries around the world to defend, staff and fund such a tribunal so as to achieve global accountability for international crimes committed in Ukraine,” he said. she said at a press conference. conference on war crimes at the Catholic University of Washington.

While his remarks represented one of the most emphatic statements to date indicating U.S. support for the prosecution of the crime of aggression, they also underscored the challenge of seeking to hold world leaders accountable for their actions both they stay in power. Also setting clear limits on how far the administration is willing to go, Van Schaack acknowledged her reluctance to set a precedent that could pave the way for a similar court to prosecute US leaders.

Critics of Russia’s invasion of Ukraine have debated rival proposals to hold Russia’s leadership accountable for the war, including the creation of a hybrid court rooted in the Ukrainian system, with international elements, or the creation of a purely international chamber with jurisdiction over the crime of aggression.

Although the details are yet to be ironed out and would likely require changes to Ukrainian law, legal experts say a hybrid court could include both Ukrainian and international judges and have jurisdiction over the crime of aggression under Ukrainian law and international. It could also meet outside the war zone, including in The Hague.

Ukraine, like other countries, allows sitting heads of state to claim immunity from prosecution. By implementing the proposed hybrid court, Ukraine’s lawmaker could make an exception, but if Mr. Putin were ever arrested and arraigned in court, his lawyers could argue that the exception was illegitimate.

David J. Scheffer, who served as the US ambassador-at-large for war crimes issues from 1997 to 2001, said the State Department’s proposal for a hybrid tribunal rooted in Ukrainian law was insufficient.

“It’s disappointing,” added Mr. Scheffer, who called for a special international court, not a national or hybrid court, to prosecute the Russian leaders.

Several former diplomats and scholars want the United Nations General Assembly to set up a purely international judicial institution like the International Criminal Court in The Hague, which prosecutes war crimes and has ruled that it does not need honor the immunity of incumbent heads of state. They argue that such a new court could cite that precedent, making it harder for Mr Putin to claim immunity and have a case thrown out.

(Aggression is different from war crimes, which involve atrocities committed during a war, regardless of the legitimacy of the conflict.)

“Aggression is a crime perpetrated by leaders; if leaders have immunity, what do we even do? said Jennifer Trahan, professor of global affairs at New York University, who favors a court independent of the Ukrainian judicial system. “We are one moment away from Nuremberg. Do we really want to deter aggression and the use of force? If we do, we need to have a real deterrent response.

But Harold Hongju Koh, a Yale Law School professor who was one of the Obama administration’s top State Department lawyers, argued that a hybrid court, modeled on a similar court that has judged the leaders of the Khmer Rouge in Cambodia, could be put in place. and run much faster.

Mr. Koh noted that even in a purely international model, the issue of overriding the immunity of sitting heads of state is far from assured.

“The best should not be the enemy of the good,” Mr. Koh said. “A hybrid court has the advantage that such a court has actually worked. The Ukrainians actually have a prosecution unit working and trying cases. Do you want to get on a train that’s going somewhere and see if it can take you where you want to go, or wait for an entirely new train to be built? Why not get on the train?

Vedant Patel, the State Department spokesman, said Tuesday that the new approach should not be seen as “an alternative or replacement” for the activities of the International Criminal Court. “What it is is another mechanism where we support all international efforts to look at atrocities,” he said.

This month, the International Criminal Court issued an arrest warrant accusing Mr Putin and one of his senior officials of illegally abducting Ukrainian children and transporting them to their country.

But this tribunal has no jurisdiction to prosecute the separate crime of aggression against citizens of countries that are not parties to its treaty and have not signed an amendment that added aggression to its scope. Russia did not, and neither did the United States.

Some in the United States – particularly in the Pentagon – also believe that the tribunal should not exercise jurisdiction over other offenses within its jurisdiction, such as war crimes, against citizens of countries that are not party to the treaty who created it.

But late last year, Congress amended a law to allow support for court investigations stemming from the war.

Still, the Biden administration is divided on how to work with the court. While agencies like the Justice and State Departments support sharing information with him about Russian war crimes, the Pentagon has opposed it, fearing to set a precedent that could make it easier for Americans to prosecute. the future.

In her remarks, Ms Van Schaack appeared to refer indirectly to the dispute, noting that “the implementation of the new legislative amendments to assist the ICC prosecutor is under review”.

Van Schaack, who has helped investigate war crimes in Rwanda and the former Yugoslavia, said US officials and European partners, together with the new International Center for the Prosecution of the Crimes of Aggression in The Hague, “would build criminal cases against those leaders responsible for planning, preparing, initiating or waging this war of aggression for future trials.

The Ministry of Justice is increasingly focusing on a similar support role, providing Ukrainian prosecutors with logistical help, training and direct assistance in major cases.

In addition to helping prosecutors in Ukraine, any evidence gathered could be used for war crimes and genocide prosecutions, and could even lead to new sanctions against Moscow, she added.

Scheffer, who has helped create international court systems to prosecute defendants from Rwanda, Sierra Leone and the former Yugoslavia, said nesting the prosecution in a national court – as opposed to creating of a fully international court – could sideline efforts to detain Mr. Putin. responsible.

“I’m skeptical of significant financial support for an internationalized Ukrainian court until they start bringing charges,” Scheffer said.

Michael Crowley contributed report.