Ukraine: Special Tribunal

Geraint Davies Excerpts

Tuesday 9th May 2023 Westminster Hall

[Geraint Davies (in the Chair)]

I call Richard Foord; it is a happy coincidence that I am wearing this blue and yellow tie.

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

I beg to move,

That this House has considered the potential merits of a special tribunal on Ukraine.

It is an honour to serve under your chairship, Mr Davies.

It has become a cliché for politicians across the House to refer to “Putin’s illegal invasion of Ukraine”. Today we should unpick that phrase a little so that we can consider how states such as the UK might respond to the full-scale invasion, aside from our ongoing provision of materiel to Ukraine. I would like to spend a few minutes talking about the crime of aggression, and I intend to set out why accountability for that crime should be sought by way of a special tribunal.

Last September, along with a few other Members of the House, some of whom are here today, I attended the Yalta European Strategy conference in Kyiv; I refer to my entry in the Register of Members’ Financial Interests. The Yalta European Strategy conference brings together politicians, academics and others from across Europe to discuss Ukrainian and European security—we also remembered a time, back in 2013, when the same conference was held in Yalta, Crimea. But talk to historians about Yalta and they are more likely to think of the conference that took place between the UK, the US and the Soviet Union in February 1945, which President Roosevelt approached with an aide-mémoire on the punishment of Nazi war criminals. The Yalta memorandum urged the use of the judicial method against the Nazi leaders because

“Condemnation of these criminals after a trial…would command maximum public support in our own times and receive the respect of history.”

The first international military tribunal at Nuremberg opened in November 1945. Major-General Nikitchenko from the Soviet Union was the presiding judge. He came from a small village about 50 miles from the border between Russia and Luhansk, and was reported to have said in the days before the opening of the trial:

“If the judge is supposed to be impartial, it would only lead to unnecessary delays.”

Thankfully, other parties to the international military tribunal disagreed with him and due process was followed. The London charter of the international military tribunal set the laws and procedures for the conduct of the Nuremberg trials, and they defined three categories of crime: war crimes, crimes against humanity and—the closest to aggression—crimes against peace.

A special tribunal for alleged aggression against Ukraine would be the first aggression-focused tribunal since Nuremberg and Tokyo, which prosecuted the leaders of axis powers after world war two for crimes against peace. These days, there are courts and tribunals that have jurisdiction over war crimes, crimes against humanity and allegations of genocide, and they include the International Criminal Court. However, there is no international body before which individuals may be tried for the crime of aggression, because the ICC cannot exercise jurisdiction over the crime of aggression unless both the victim state and the aggressor state have ratified and accepted the ICC’s jurisdiction over aggression. That is not the case for Ukraine, Belarus and Russia. Russia is not a party to the ICC, and referrals to the ICC by the UN Security Council would be vetoed by Russia.

On 17 March 2023, the ICC issued an arrest warrant for Vladimir Putin for the war crime of illegal deportation of children from Ukraine to Russia. Although that was very welcome, it starts a process that can run in parallel with the initiative to create a special tribunal. It does not change the fact that there is currently no international body before which those responsible for the crime of aggression can be brought from Russia or Belarus. Various acts of aggression can be traced back to the February 2022 full-scale invasion. If proven in court, those acts of aggression could constitute what the Nuremberg trials termed the “supreme international crime”.

A crime of aggression consists of

“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, of an act of an aggression.”

That can include manifestly illegal acts of aggression such as invasion, attack or occupation. It is the crime of aggression from which other international crimes flow, including war crimes, crimes against humanity and genocide.

Bluntly, the videos circulating on social media in recent weeks of the apparent beheading, allegedly by Russians, of a Ukrainian soldier who was still alive show an atrocious act that was unlikely to have happened in the absence of the original aggression. A special tribunal would be the surest route by which to try the Russian leaders for international crimes. Trying senior leaders for war crimes, crimes against humanity or genocide is difficult. It is difficult to link the crimes committed by soldiers on the ground, who might be ill disciplined, to senior military or political figures, who are often well aware of the risk of having crimes attributed to them. No, a special tribunal would focus on the single crime with respect to a narrow clique of perpetrators.

Russia’s use of force against a sovereign state constitutes an illegal act of aggression. It was not authorised by the UN Security Council. It was not an act of self-defence. Aggression is considered a leadership crime. Those exercising control over or directing political or military action with respect to the acts commit the crime of aggression.

Russia is not ignorant of the UN definition of aggression. At a meeting of the UN Security Council in March 1999, during the NATO bombardment of Yugoslavia, Russia’s Foreign Minister, Sergei Lavrov, quoted the 1974 UN General Assembly resolution that defined aggression. Mr Lavrov said:

“No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”

The UK Government announced in January that they are joining a core group of partners to shape thinking on how to ensure criminal accountability for Russia’s aggression against Ukraine. Three primary models for a special tribunal have emerged, and I will outline those briefly. The first option is a tribunal that would be based on a multilateral treaty involving Ukraine and those states willing to support it; that is how the international military tribunal at Nuremberg was set up. It would be a strictly international tribunal—these days set up, perhaps, on the recommendation of the European Union or the Council of Europe through a treaty with Ukraine.

The second option is establishing a free-standing tribunal that would be based on an agreement between Ukraine and the UN. We could pursue endorsement through a resolution of the UN General Assembly. Precedents include tribunals established by agreements between the UN and Sierra Leone.

The third option is creating a special hybrid tribunal that would be based on Ukrainian domestic law, but which would incorporate international elements. The UK Government appear to have supported that third option. Yes, such a tribunal could be created without an international agreement and without statute, without applying strictly international law, and without using significant international prosecutors or judges. However, a tribunal based on Ukrainian domestic law would face various problems. It would be difficult to overcome immunities for key senior leaders in Russia and in Belarus. Ukrainians argue that establishing such a tribunal would not be possible given the domestic constitutional changes required of the Ukrainian Parliament. However, to my mind the main objection to a hybrid tribunal is that other states might feel emboldened to create their own hybrid tribunals in the future, which would have little or no significant international support. The hybrid model is too easy to replicate, unlike a strictly international tribunal.

We also know that Ukraine itself does not support the so-called hybrid model. Last week, President Zelensky called for the creation of a special tribunal in The Hague. Let me quote Zelensky’s Netherlands speech of 4 May:

“Not hybrid promises instead of human rights, but real freedom. Not hybrid impunity and symbolic formalities, but full-scale justice. Not hybrid peace and constant flashes of violence on the frontline, but reliable peace.”

The international nature of a special tribunal would serve to flag a degree of impartiality for the special tribunal. It would more easily overcome issues relating to immunity for serving Heads of State and Governments.

Setting up a special tribunal is alleged by some to risk sending a message that the west’s goal is regime change in Moscow. I do not accept that the call for a special tribunal is somehow tantamount to signalling an interest in regime change. At no point have Ukraine’s allies suggested that we are seeking regime change in Moscow. Kremlin propagandists are already depicting NATO as seeking to threaten Russia’s existence, to tie in with Russia’s victory day today, 9 May—the commemorations of the Soviet Union’s contribution to the defeat of Nazi Germany. The Kremlin is already considering that its options are to win, or to lose power and then face prosecution. I do not accept that the model that the UK proposes for the special tribunal will affect Russia’s suggestion that we seek regime change. We do not.

How to go about creating a special tribunal? The Foreign Ministers of the G7 said in a statement in April, just a few weeks ago:

“We support exploring the creation of an internationalized tribunal based in Ukraine’s judicial system to prosecute the crime of aggression”.

Solidarity across the countries allied with Ukraine is absolutely crucial at this time. Just as the UK has firmed up opinion among Ukraine’s partners in relation to providing equipment to Ukraine, it would be good to see the UK championing the special tribunal cause, which should be as international in character as possible. A special tribunal would signal the disregard in which aggressor states are held. Support for the special tribunal could give aggressors pause for thought in the future.

The late Paddy Ashdown visited Slobodan Milošević several weeks before NATO military action against Belgrade in 1999. 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”.

Writing in a more idealistic era, he wrote:

“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.”

Thank you, Mr Davies.

[Geraint Davies (in the Chair)]

I remind Members that if they want to participate, they will need to bob.

[Jim Shannon (Strangford) (DUP)]

It is a real pleasure to speak in the debate, and I thank the hon. Member for Tiverton and Honiton (Richard Foord) for setting the scene so well. I was happy that he asked the Backbench Business Committee for the debate, and to support him in that, and it is good that we are having it today. What will be more important is if this debate leads to the action that the hon. Gentleman has referred to. I hope that it will.

I join all hon. Members in the Chamber in stating our ongoing and unwavering support for the Ukrainian people at this time. The attendance of Olena Zelenska at the coronation was a timely reminder that, while it was right and proper that we celebrate the passing of the Crown in this way, the problems of the world continue and so do our responsibilities to address them where we can. I believe that one of those responsibilities is to hold Russia to account for its aggression.

For too many years, Russia has pushed the boundaries and, in the desire for peace, little has been said or done to remind it that there is a line that should not be crossed. That line was crossed last March when Russia invaded Ukraine. It was crossed whenever Russia invaded Crimea. I am always reminded of the hon. Member for Rhondda (Sir Chris Bryant)—he is not here today, but he was one of the outspoken Members at that time who highlighted the importance of what was happening in Ukraine. I agreed with him that we should have taken action to support Ukraine. We did not, but certainly the United Kingdom Government, NATO, the United States and everyone else has now come in and supported Ukraine, and that is really good news.

We continue to see the boundary being pushed further, as Russia’s media machine, ably assisted by its allies in North Korea, Belarus, Eritrea and Syria, seeks to spin the war as a noble endeavour and the rape and destruction of Ukraine as a simple casualty of war. It is more than that. That is not the truth at all. The truth is that this war is a violation of peace and should be internationally recognised as such; the hon. Member for Tiverton and Honiton set that point out very well. For that reason, and because each time I see on TV women and children standing by as their homes and future are decimated due to the greed of Russia, my resolve hardens. I was watching that on TV this morning. The hon. Gentleman referred to the missile attack on Kyiv and across all of Ukraine. It is obvious that Russia is, again, hitting civilian targets, and that really grieves me.

Another thing that grieves me greatly is the indiscriminate attacks by Russian soldiers on innocent civilians and the sexual abuse and rape of women and girls. The evidential base is there in some quantity, regarding girls as young as four and women as old as 83. How can that be the world that we live in, where there is no respect for women and young girls? That grieves me.

I would love to see Russia being made accountable in the courts, wherever that may be. The hon. Gentleman asks for that; I ask for that. As a Christian, I am also minded that, while the perpetrators might escape justice in this world, they certainly will not escape justice in the next. They will burn in the fires of hell. I would like to see that happening sooner than it is happening at the present time.

I was delighted to see our Government acknowledging that a special tribunal is a possibility; I would like to see it become more than a possibility. However, for it to become reality, the idea must be driven by all the nations, including ourselves, and not simply be bandied about as a matter of words.

I was very happy to see our UK Government announcing their membership of the core group of states seeking to achieve criminal accountability in this situation. However, that acknowledgement must be followed by action. The Minister is a good Minister, and he always responds in a very positive way; when he responds today, I am hoping he will reinforce our requests to have the words become action. That is certainly what I and others wish to see.

The crime of aggression is, first and foremost, a violation of international law’s prohibition of the use of force. Article 2 of the UN charter proscribes the use of force, subject to narrow exceptions. The UN General Assembly definition of aggression, in article 5, states:

“A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.”

We all know that Russia has been guilty of a crime against international peace and against the innocent peoples of Ukraine. The UN General Assembly definition further states:

“No territorial acquisition or special advantage resulting from aggression is or shall be recognised as lawful.”

It is very clear what the words say. If those words say that, our Government need to make sure that we have the law in place to make those people accountable, and to make Russia accountable.

The prohibition is given teeth by imposing criminal liability on individuals responsible for significant breaches of it. There have been many. It is very pleasing to see Ukraine, President Zelensky and others gathering evidence that will convict people when the opportunity arises. It is clear that the definition is absolutely applicable to the action taken by Russia against Ukraine.

Although I recognise the Government’s position that any new tribunal would also need sufficient international support and must not undermine existing accountability mechanisms, some available options do allow for that. I urge that we make our position clear and, further, that we begin the actions of making this a reality.

The United Kingdom cannot do this on our own—our Government cannot do this on their own. They can do it with the help of the EU states and the fellow members of NATO, of the United States of America and those countries from other parts of the world who have also lent their support to Ukraine. There is a united body that wants to see the accountability process in place. There is a body of countries who want to see a special tribunal for Ukraine in place for the actions of those in Russia who have carried out despicable crimes.

I gently say to the Minister that the upshot of today’s debate should not be simply another resounding message of support for Ukraine. It should be the taking of the action spoken about by the hon. Member for Tiverton and Honiton and this crime of aggression being processed as such. The world must quickly recognise that these actions will not be ignored and that the perpetrators will be held accountable—that includes President Putin, the generals and every soldier who carried out the acts.

In conclusion, the support that we lend Ukraine through weapons and aid is essential. We do it well. I commend previous Prime Ministers, the present Prime Minister and our Government for what they have done in galvanising support across the world to help Ukraine. We need to stand up against evil actions in law, and today’s debate should be the first step. I very much support what the hon. Member for Tiverton and Honiton has said.

[Geraint Davies (in the Chair)]

I invite John Howell to speak next—my colleague at the Parliamentary Assembly of the Council of Europe, which does so much on human rights and the rule of law. In fact, he is the leader of our delegation.

--- Later in debate ---

[Geraint Davies (in the Chair)]

Thank you so much, John Howell, in particular for the reference to the upcoming Reykjavík Council of Europe summit.

--- Later in debate ---

[Stephen Doughty]

The hon. Gentleman makes a very important point. Indeed, he tempts me further forward, but let me refer to some of the other international support. Estonia, Latvia and Lithuania made a joint statement on October 16 last year. I have mentioned the European Union, and the President of the European Commission made a statement on 20 November 2022, as did France. Indeed, there has been a growing chorus of other Governments, academics, legal experts and those who have been involved in similar processes in the past.

We can look at other tribunals that have been created, such as the special tribunals that were created for the former Yugoslavia and for crimes in Sierra Leone and Liberia. There are distinct differences, but we can learn important lessons from them. Indeed, the House of Commons Library refers to the Dutch Government’s willingness to hold a special tribunal. Although that is distinct from the ICC and its position in The Hague, the seat of international justice, the Dutch Government have indicated their willingness.

We have heard about the different options during this debate. That includes, first, amending the ICC’s Rome statute, although there are serious workability issues around that; secondly, a so-called hybrid model, but, as we have heard, President Zelensky does not feel that that is the right way forward; and thirdly, an international court established by the UN General Assembly with the agreement of Ukraine. We could also have a treaty between interested states, creating a special tribunal, and we have heard of a fifth option, which is the model that the hon. Member for Henley (John Howell) referred to in relation to the Council of Europe.

There are two critical issues that we would need to address in any model. First, there is the issue of immunities. There are questions in some of the options about whether immunity would come into play. Secondly, there is the question of selectivity, but I do not think that those need to necessarily stand in the way of the model. As has been said, a number of international legal experts and countries believe that those can be overcome by the special tribunal model.

Let me be clear that the brutality—the sheer wickedness—of what we have seen in Ukraine requires some very creative, robust and ambitious thinking. That is why Labour Members, and many hon. Members across the House, have supported the Ukrainian proposal for a special tribunal. These are some of the worst crimes that we have seen and the most incontrovertible case of aggression. Also, establishing a special tribunal and finding against Putin and Russia, as I very much hope it would, would lead us to a place where we can potentially take further action to give practical help to the people of Ukraine—for example, on the sequestration of Russian state assets. If we can establish and prosecute that original sin—that original crime of aggression—it could help to underpin the international legal basis for other actions that could lead to direct support for the Ukrainian people, as well as achieving the fundamental aim of justice for the country and its people for the crimes they have suffered.

I will end by quoting President Zelensky. In recent days, he said:

“But we know that the lasting peace after victory is achieved by nothing else but the strength of values. First of all, it’s the strength of freedom and of law, which must work to the full to ensure justice. Not hybrid promises instead of human rights, but real freedom. Not hybrid impunity and symbolic formalities, but full-scale justice. Not hybrid peace and constant flashes of violence on the frontline, but reliable peace. When one respects values—true freedom, true justice, true peace is respected”

and that is

“exactly what we need now.”

We should show the same ambition and the same passion for justice, the rule of law and a lasting settlement for the people of Ukraine, after the brutality that they have faced. I am very interested to hear what the Minister has to say about the processes leading towards setting up a special tribunal.

[Geraint Davies (in the Chair)]

Last but not least, I call the Minister.