International Special Tribunal: Ukraine

Clive Efford Excerpts

Tuesday 3rd September 2024 Westminster Hall

[Richard Foord (Honiton and Sidmouth) (LD)]

I beg to move,

That this House has considered the potential merits of an international special tribunal on crimes of aggression in Ukraine.

It is an honour to serve under your chairship, Mr Efford. The motion should refer to “the crime” rather than “crimes”. It should be singular because this debate is about the crime of aggression. I think it might have been amended to the plural by the Table Office, but I very much hope that we can keep the crime of aggression as the topic for this debate.

It is 15 months since we last had a debate on the crime of aggression and the potential merits of a special tribunal on Ukraine. On 9 May 2023, I opened a debate in this Chamber some 15 months after the full-scale invasion of Ukraine by Russia in February 2022. It is easy to forget the shock that many of us felt two and a half years ago when we woke up on 24 February to discover that our intelligence agencies had been right all along in their forecasts and that the Kremlin had deployed more than 150,000—some think nearer 200,000—of Russia’s armed forces personnel across the border into Ukraine. It is that original decision and original aggression on which this debate should focus.

The crime of aggression is defined as

“the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State”.

It is called a “leadership crime”, because under the Rome statute criminal responsibility is limited to

“a person in a position…to direct the political or military action of a State.”

The key thing about the crime of aggression is that it is the original sin—the leadership crime from which flow other international crimes, including war crimes, crimes against humanity and genocide.

If Members have looked at newspapers this week, they may have seen that there has been press attention on Putin’s visit to Mongolia and suggestions that Mongolia should heed an International Criminal Court arrest warrant to transfer Putin to The Hague. That arrest warrant relates to an alleged war crime: the unlawful deportation of children from occupied areas of Ukraine to the Russian Federation—like other war crimes and crimes against humanity committed in Ukraine, that would not have occurred had it not been for the original aggression.

When I addressed the previous Government 15 months ago, I said to the Conservative Minister that the special tribunal should be as international in character as possible, because a national tribunal based on Ukrainian law, or a regional tribunal, would not be sufficiently international in character for the personal immunities—which relate to Heads of State, Foreign Secretaries and Presidents—to be disapplied.

The preference of G7 members has been for the creation of a Ukrainian court using Ukrainian law but based in The Hague, but the problem with such a proposal is that if the special tribunal is part of a domestic legal system, none of the international elements of the tribunal will apply. As Head of State, Putin would have immunity in a foreign domestic court. Only Russia would be able to waive that immunity. Foreign Ministers and diplomats also have a similar personal immunity under the domestic courts of other countries, such as Ukraine.

With the Minsk agreements, we saw a willingness on the part of the Kremlin to accede to some demands only to row back on those agreements subsequently. In any future negotiation we cannot have some sort of bargaining or bartering away of personal immunities in favour of a political agreement that the Kremlin can then renege on, as it did before. Immunity applies to Heads of State and Governments for acts performed in the exercise of their functions, even after they have left office, and as such they should be dealt with by an international court at an intergovernmental level.

Fifteen months ago, the then Foreign, Commonwealth and Development Office Minister stated that the UK Government did not have a definitive view about whether a special tribunal should be a Ukrainian court established with international support or a fully international court. They said at that time that all options were on the table. Previously, the UK has traditionally held the position that only the UN Security Council has the power to disapply personal immunities, but clearly that idea would not fly given that Russia has veto power over any Security Council resolution.

The Minister responsible for Europe, the hon. Member for Cardiff South and Penarth (Stephen Doughty), was present at the debate 15 months ago in his capacity then as a shadow Minister. He asked the Conservative Government about immunities and said they were a

“critical issue…that we would need to address in any model”—[Official Report, 9 May 2023; Vol. 732, c. 114WH.]

of a special tribunal.

In February this year, an international conference to consider a special tribunal took place just across the road from here, at Church House. The communiqué from the conference referred to the merit of a strictly international tribunal or a highly internationalised tribunal having key international features: an international agreement; reference to international law for the purposes of jurisdiction; significant international components, such as prosecutors, judges and venue; and firm international backing, where possible, from international and regional organisations. The communiqué said:

“We believe this would offer the best hope of disapplying relevant immunities and give a tribunal full legitimacy, and complement the ongoing work of the ICC (in investigating alleged acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine).”

The effect of lifting immunities could relate to that most precious thing for any tyrant: their reputation. The late Paddy Ashdown visited Slobodan Milošević several weeks before NATO military action against Belgrade in 1999. Lord Ashdown commented that Milošević

“seemed more frightened by the threat of indictment by the International Criminal Tribunal for the Former Yugoslavia, than...of NATO bombing”.

Twenty years ago, at the height of liberal interventionism by what at the time we called rather grandly “the international community”, Lord Ashdown reflected on international justice in relation to war, writing that

“these new courts and tribunals, which the world has established in recent years...have the potential to become instruments not only for justice, but also for prevention, since they can represent a...warning to belligerent or tyrannical leaders.”

These days, there is far less talk of a “global village”, and terms like “international community” are used far less readily and do not strike a chord in the way they did 25 years ago. In February 2022, when the UN Security Council considered a resolution condemning Russia’s aggression in Ukraine, both India and China abstained. The Council of Europe is seeking to fill the gap. An international tribunal based on a treaty with the Council of Europe would be sufficiently international to overcome the personal immunities, if its founding treaty was open to any state to sign and it was ratified by at least 60 states. The involvement of the Council of Europe in the creation of a special tribunal, together with the potential accession of non-member states from outside Europe to the treaty creating such a tribunal, would contribute legitimacy to the effort to prosecute the crime of aggression committed in Ukraine.

Yesterday evening, I talked to someone else who participated in the International Criminal Tribunal for the former Yugoslavia. Sir Geoffrey Nice was the lead prosecutor of Slobodan Milošević for the UN, and he wrote the following to me after our conversation:

“No self-respecting lawyer—indeed, no self-respecting human—should have anything to do with any court premised”

on

“an immunity, granted by political agreement”.

I know that this issue is of genuine interest to the Minister, and I look forward to hearing any contribution from her or from other Members about whether the UK should have a stance whereby personal immunities should be disapplied. Surely, we cannot see immunities applying for President Putin, President Lukashenko, Sergey Lavrov and other senior architects of the aggression in Ukraine.

[Clive Efford (in the Chair)]

I remind Members to bob in their place if they intend to speak in the debate.

--- Later in debate ---

[Richard Foord]

I am grateful to all hon. Members who have participated in the debate. The hon. Member for Strangford (Jim Shannon) took us back to first principles when he talked about freedom, liberty and democracy. It is a reminder that while we are talking about arcane legal matters, this is also a matter of the self-determination of the Ukrainian people and their ability to choose their own future. He also gave us the image of David and Goliath, and it is partly through the proposed special tribunal that it is suggested the international community could try to tip the scales in favour of David.

The hon. Member for East Londonderry (Mr Campbell), who is no longer in the Chamber, talked about the loopholes in sanctions. He was right to do so; I was informed earlier this week that oil services companies are still actively doing business with Russian energy companies. SLB, which has UK offices at Buckingham Gate, is one such company. Essentially, though inadvertently, it is contributing funds to Moscow’s war machine.

My hon. Friend the Member for Oxford West and Abingdon (Layla Moran), the Liberal Democrat spokesperson, reminded us of the important work of the core group of more than 40 states established in 2023. It is encouraging that the UK is part of that group, but we could be a more prominent voice were the Government to choose to go down that route. In addition, my hon. Friend talked about the spectre of a second Trump presidency. We know that Donald Trump regards himself as a dealmaker; he thinks of himself as someone able to broker a deal and get a compromise. When we are dealing with absolutes such as international justice and the crime of aggression, there is no room for that sort of grubby compromise, because on the line are the deaths of the 11,000 civilians that we have heard about this afternoon.

The hon. Member for Rutland and Stamford (Alicia Kearns) talked about the rewriting of history by Putin, which we definitely need to be wary of. He tends to engage in historical revisionism. Even before the full-scale invasion, he was engaged in that in relation to Ukraine. In December 2019, he talked about how Poland was somehow responsible for the attack by Nazi Germany because it had laid itself open to attack by Hitler’s military machine. We need to make sure that the record of history is written correctly in relation to Russia and Putin.

The hon. Member for Rutland and Stamford also talked about UK support for Ukraine. I think that we should be very wary of getting into party political turf wars on that one. I see nobody from the Reform party in the Chamber, but that is the only political party in this Parliament not to buy into the consensus on UK support for Ukraine—long may the solid support between political parties continue. In the last Parliament, Grant Shapps, as Defence Secretary, announced an uplift in military aid for Ukraine from £2.5 billion to £3 billion, and that was welcomed automatically. We should not seek to score political points on this issue.

Finally, I am grateful to the Minister for her comments. I will continue to press the Government on the point about personal immunities that I led on, and I will talk to the Minister of State, Foreign, Commonwealth and Development Office, the hon. Member for Cardiff South and Penarth (Stephen Doughty), who I know is very interested in this matter, too.

[Clive Efford (in the Chair)]

For future reference, summing up is meant to be brief, but I was generous because we have plenty of time left.

Question put and agreed to.

Resolved,

That this House has considered the potential merits of an international special tribunal on crimes of aggression in Ukraine.