On 25 June, Ukraine and the Council of Europe signed an agreement establishing a Special Tribunal for the Crime of Aggression against Ukraine. Forming part of the agreement is the Statute that sets out the Special Tribunal’s powers, composition and key procedures.
In light of the enormous damage that Russia’s aggression against Ukraine causes on a daily basis, matters of compensation have rightly been high on the agenda in Ukraine and among its supporters. Unfortunately, the establishment of the Special Tribunal looks like a missed opportunity to address the economic side of Russia’s aggression.
What Proceeds?
Article 36(2)(b) of the Statute reads as follows:
‘In addition to imprisonment, the Trial Chamber may order (…) the confiscation of instrumentalities, proceeds, property and assets derived directly or indirectly from the crime of aggression, without prejudice to the rights of bona fide third parties.’
Confiscation of proceeds and instrumentalities of crime is a wholly mainstream notion, and it is not at all surprising to see it provided for in the statute of an international criminal tribunal. But how this is meant to apply in the context of the crime of aggression is far from clear.
Yes, there are those who make money from Russian state-organised crime in Ukraine, be it lucrative contracts for the ‘reconstruction’ of Mariupol, theft of grain or other forms of profiteering. Those activities give rise to proceeds that could be plausibly characterised as stemming, at least indirectly, from the underlying crime of aggression.
However, the Special Tribunal’s jurisdiction appears to be limited to the Kremlin’s military and political leaders (Article 4(1)):
‘A person in a position effectively to exercise control over or to direct the political or military action of a State who planned, instigated, ordered or committed, or attempted to commit, a crime referred to in Article 2 of this Statute shall be individually responsible for the crime.’
The quintessential defendants answering this description must be people like Russia’s president Vladimir Putin, the chief of general staff Valeriy Gerasimov, and a select group of other top brass. But have they, personally, made money through the full-scale invasion?
In the case of someone who, like them, is perched atop a corrupt and rent-seeking regime, the question is borderline meaningless. Their political power is bound up with the wealth and comfort they enjoy, and Russia’s aggression against Ukraine may well have solidified that power, but the causal links are too subtle to be cognisable in a court of law – and the amounts, unquantifiable.
The same is true of instrumentalities, or property used in the commission of the crime. The main instrumentalities of the ongoing crime of aggression against Ukraine are, quite simply, the equipment and budget of the Russian armed forces. Legally speaking, of course, they do not belong to any of the potential defendants. What, if anything, could we then imagine to constitute an instrumentality of the crime of aggression liable to confiscation by the Special Tribunal?
My point here is not in any way to criticise the inclusion of the confiscation provision, but to register my concern that it is rendered ineffectual by the Statute’s overall scheme. It does not appear that, despite the immense economic dimension to the war, considerations of compensating the victims have played any serious role in the drafting of the Statute.
Who Are the Perpetrators?
This is evident, in particular, from the Statute’s focus on those directing Russia’s ‘political or military action’. One might wonder whether the word ‘economic’ would not have made a useful addition.
After all, Russia’s economic resilience is a crucial determinant of its ability to carry on with the aggression. The responsibility of those central bankers, financiers and traders who enable Putin’s aggression is aptly summed up in this Financial Times headline: ‘How Putin’s technocrats saved the economy to fight a war they opposed’.
Still, that constituency is far more likely to reconsider their professional and ethical choices in the face of a potential Special Tribunal prosecution than dyed-in-the-wool FSB generals. The lack of any sustained effort by Western nations to bring financial enablers of Russia’s war under criminal justice scrutiny, as opposed to sporadic sanctions designations, is underwhelming, and the Special Tribunal’s lack of focus on this issue is but the latest illustration.
These policy issues aside, an interesting legal question emerges. Uniquely, I believe – and certainly unlike the Statute of the International Criminal Court, or of the Yugoslavia or Rwanda tribunals – the Special Tribunal’s Statute contains no complicity rules. In other words, it tells us nothing of the criminal responsibility of those who aid, abet or otherwise facilitate the commission of the crime of aggression against Ukraine. Those are the rules that could capture the activities of some of the economic enablers of the war.
One interpretation, then, is that no prosecutions for complicity are possible in the Special Tribunal. However, the Statute is remarkably open-ended in relation to the legal rules it will apply. Specifically, Article 3 reads as follows:
The Special Tribunal shall apply:
(a) in the first place, this Statute and the Rules of Procedure and Evidence adopted in accordance with Article 15 of this Statute;
(b) in the second place, applicable treaties, customary international law and general principles of law when necessary to ensure compliance with accepted standards of international criminal law;
(c) failing that, provisions of the substantive criminal law of Ukraine relating to the prosecution and punishment of the crime of aggression.
Given that all other comparable statutes contain rules on complicity, could they not be deemed to constitute ‘accepted standards of international criminal law’, and perhaps enshrined in customary international law? Consider also the curiously worded invocation of Ukrainian domestic law – to be applied if all else fails, but fails at what? – ‘relating to the prosecution and punishment of the crime of aggression’. Which precise provisions this is apt to encompass, and when exactly they can be brought to bear, remains to be seen.
What Next?
The Special Tribunal is an important step forward in ensuring accountability for Russia’s war, and its creation will signal to the Kremlin that there is no desire on the part of Ukraine’s European friends to forego demands for justice. What we have for now is a basic blueprint for the Special Tribunal’s operations. Its Statute will, in due course, be complemented by the more detailed Rules of Procedure and Evidence.
For now, however, the Special Tribunal does not appear to be envisaged as major player in securing financial compensation for the victims of Russia’s war. This effort will therefore have to continue to be pursued through other avenues.
Economic Crime Law 