In reaching its decision, the Appeals Chamber examined what is an “international tribunal” before which personal immunities would not attach. Taylor, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) affirmed that no personal immunity attaches for a sitting head of state (Charles Taylor in that case) before an internationally established court such as the SCSL. Subsequently, in the Decision on Immunity from Jurisdiction, Prosecutor v. 61) that the situation is different before international tribunals with jurisdiction over such crimes. As Professor Reisinger Coracini and I explained in our earlier article, in its 2002 “Yerodia” Judgment, the International Court of Justice made clear that personal immunities of a sitting head of state, head of government, and minister of foreign affairs apply to a national court system even in proceedings for international crimes. That is, the offense covers only leaders who are “in a position effectively to exercise control over or to direct the political or military action of a State.” The reason for this firm limitation is that ordinary soldiers, even mid-level commanders, are not the ones who make the decision for a country to wage war.Īccordingly, to be able to prosecute such leaders, it is imperative that personal immunities from prosecution do not attach. Under the Rome Statute of the International Criminal Court (ICC), the crime of aggression is a “leadership crime” (Article 8 bis, para. A hybrid tribunal within the Ukrainian court system would likely immunize top Russian leaders from accountability That institutional model would avoid the risks outlined below. The Parliamentary Assembly of the Council of Europe has the correct approach in calling for a “special international criminal tribunal for the crime of aggression” in its recent Resolution 2482 (2023). Beyond immunizing high-level leaders, prosecution of the crime of aggression by a hybrid tribunal within Ukraine’s court system would also suffer from other defects due, in part, to Ukraine’s constitutional law and other factors elaborated below.Ī diplomatic solution is in the offing. Otherwise, it could be handicapped ab initio (hobbled at the knees) and unable to prosecute the very leaders who are allegedly most responsible for the commission of the crime. The tribunal that is established needs to be fully international. It could place diplomatic efforts on the wrong track with a tribunal that risks being a nullity or worse. The United Kingdom, however, takes the view that the tribunal should not be an international one, but instead “integrated into Ukraine’s national justice system with international elements,” and the German Foreign Minister appears to endorse a hybrid tribunal “deriving its jurisdiction from Ukrainian criminal law.” While the German formulation contains some ambiguity as to what type of tribunal is intended, the U.K. Government and Germany’s Minister of Foreign Affairs recently endorsed the creation of an ad hoc aggression tribunal for the situation in Ukraine. This article is also available in Ukrainian here.)
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