Ukraine: Special Tribunal

John Howell Excerpts

Tuesday 9th May 2023 Westminster Hall

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Davies. This is an interesting subject, and an appropriate time to raise it. In just under two weeks’ time, a summit of the Council of Europe takes place in Reykjavík. It is only the fourth summit in the history of the Council. High on the agenda is Ukraine.

We have two issues. The first is how we can deal with crimes against humanity. As we have heard, that is already taken care of; there is an established precedent for that. The second is how we can deal with crimes of aggression. We heard some examples of how crimes of aggression can be dealt with, but the problem is that none of those precedents can be transposed on to the situation in Ukraine. It is legitimate to point out that there are substantial differences between the situation at hand and those precedents. Much caution is required even in drawing analogies between how those tribunals ran and how they can be set up now.

One organisation above all—this will gladden your heart, Mr Davies—is able to take this role. It is not the UN, from which it is almost impossible to believe that there will be an agreement to take this forward. It is the Council of Europe. The Council has already committed to going for a tribunal of aggression, both at the level of the Parliamentary Assembly and at the level of the Committee of Ministers, which is the equivalent of a second Chamber to the Assembly.

It is perfectly legitimate to point out that national defence does not fall within the normal scope of the Council of Europe, which has long stated that it is not a defence organisation. However, the Council has on a number of occasions expressed itself on Ukraine, and has said that it wants to help the situation there. With your permission, Mr Davies, I will reaffirm a number of those statements. First, the Council of Europe has reaffirmed the need for a strong and unequivocal international legal response to the aggression against Ukraine. It has already said that aggression is a crime, and we need to deal with it. It permits no place for impunity for serious violations of international law. Secondly, the Council has stressed the urgent need to ensure a comprehensive system of accountability for serious violations of international law arising out of the Russian aggression. I will come back to that and give a suggestion on it.

The Council has noted with great interest the Ukrainian proposals to establish an ad hoc special tribunal for the crime of aggression against Ukraine, subject to what will be decided at the Reykjavík summit. Thirdly, the Council welcomed ongoing efforts, in co-operation with Ukraine, to secure accountability for the crime of aggression against Ukraine, and to secure full reparations for the damage, loss or injury caused by Russia’s violations of international law in Ukraine. Those ideas of accountability and full reparations are crucial to what the Council summit will be able to decide.

The Council of Europe is looking to set up a register of goods and buildings destroyed by the Russians during their war of aggression. One may think, “Why is a register necessary?” It is necessary, first of all, so that we can work out the scale of reparations. We cannot pluck a figure for reparations out of the air; it must be based on actual evidence. The Council of Europe stresses very much the need for accountability, which is why it thinks that a tribunal is a good idea.

The summit will be attended by a very senior member of the Government. Representatives of leading countries are going, including President Macron and the President of Germany; the President and Prime Minister of Iceland will be there as well. The summit will cover setting up that register, the ability to deal with reparations, and the accountability of Putin. I read a legal treatise that says that the Council of Europe is perfectly legitimately set up to deal with matters within the prism of accountability for the commission of an international crime, and with the crime of aggression. That is not outside the Council of Europe’s scope. That means that the Council would not be acting ultra vires in concluding an agreement with Ukraine for the creation of such a tribunal. That is an important note on which to finish my comments.

--- Later in debate ---

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

It is a pleasure to serve under your chairpersonship, Mr Davies. You are wearing an excellent tie; there are a number of good ties on display. I thank the hon. and gallant Member for Tiverton and Honiton (Richard Foord) for securing this critical debate, and thank all colleagues for their valuable and insightful contributions. I also declare an interest: I travelled on the same trip to Ukraine as him. It gave us a huge insight into the reality of the devastation of Putin’s brutal actions against the civilians and people of Ukraine.

Over the weekend, we came together in this country to celebrate the coronation of His Majesty King Charles III, and to look forward to the future. It was a time of celebration, hope and optimism. In Ukraine, tragically, this weekend could not have been more different. Ukraine had to withstand yet another series of barrages against civilian areas. Yesterday morning alone, Russia launched 16 missile strikes on cities and regions, including Kharkiv, Kherson, Mykolaiv and Odesa, as well as 61 other airstrikes—barbarous actions that are feared to have killed even more civilians.

As we have seen throughout the conflict, Russia’s brutality truly knows no limits. Such damage has been done to the people and the country of Ukraine. Families have been torn apart, lives have been lost, injuries have been caused, and devastation has been inflicted on cities, towns and villages. There is also the impact on the economy. At the root of that is the flagrant disregard that Russia has shown towards Ukrainian sovereignty. Its actions are those of a tyrant who continues to believe that he and his regime are outside any legal or moral standard—outside the parameters of accountability. We need to show him and the Russian regime that that is not the case. That is why today’s debate is so integral to our efforts, and those of our allies and partners, to hold him to account for the atrocities being committed in his name.

As you will know, Mr Davies, the Opposition have been clear since the war began that the Government would enjoy our full support if they strengthened the UK’s position on the conflict in Ukraine, and the response to Russia’s actions. There is a great deal of unity across the House, whether on sanctions; tackling illicit finance; providing military, technical and humanitarian support to Ukraine; or expanding and emboldening our diplomatic coalition. The first lady of Ukraine will have heard that again when she attended the coronation at the weekend.

I have a series of questions for the Minister on the issue of a special tribunal. As far back as March last year, days after the latest phase of this brutal invasion, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) joined others in calling for the creation of a special tribunal to prosecute President Putin and others in the Kremlin regime for the crime of aggression. We welcome other ongoing efforts, which have already been discussed. That includes individual war crimes investigations and prosecutions in Ukraine domestically. The International Criminal Court has taken the welcome step of issuing an arrest warrant for the utterly brutal alleged crime of the illegal deportation of children. We have to accept that we can pursue distinct, potentially complementary, legal routes to ensure that Ukraine and its people receive justice.

Ukrainian Foreign Minister Dmytro Kuleba said at the start of the conflict that the establishment of a special tribunal would be critical to holding Putin to account for the original sin—the crime of aggression. We and others have listened, and have added our voice to the growing international chorus that backs that practical and necessary step. I was going through the Library briefing on the issue. There have been a lot of questions and debates on this issue in the House, but we have yet to hear the Government’s thinking on a special tribunal. As has been mentioned, the Government have joined this core group, but the commitment appears to concern a hybrid model. It is important to note, and we have said all along, that we want to be led by Ukrainians—what Ukrainians want and what the Ukrainian Government want. President Zelensky has been very reluctant to have a hybrid model. Indeed, he recently said:

“only one institution is capable of responding to the original crime—the crime of aggression. A Tribunal! Not something hybrid that can formally close the topic…Not some compromise that will allow politicians to say that the case is allegedly done…But a true, full-fledged Tribunal. True and full justice.”

Throughout, we have listened to and been led by the wishes of Ukraine’s leaders and its people, and that needs to happen on this issue as well.

In February, the President of the EU Commission also announced that he would establish the International Centre for Prosecution of the Crime of Aggression against Ukraine, which will be headquartered in The Hague. We have heard about the excellent work going on in the Council of Europe and other international examples, some of which I will come to later, but we have yet to hear a clear position from the Government on this. It is very important that we do, because we have heard about the potential weaknesses and limitations in some of the other models. The ICC alone does not have jurisdiction over the crime of aggression unless both the victim and aggressor have ratified and accepted the Court’s jurisdiction over a specific crime, so another way forward must be devised if we are to hold the regime to account.

It is beyond any reasonable doubt that Russia’s invasion of Ukraine and its ongoing use of force against Ukrainian sovereignty, territorial integrity and political independence is an act of aggression amounting to a violation of article 2(4) of the UN charter. Russia has irrefutably breached the threshold amounting to the legally defined crime of aggression under article 8 of the Rome statute of the ICC, which relates to 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”.

Similar questions can be raised about others who have been involved. Will the Minister comment on the situation with regard to Belarus and its aiding and abetting of the Russian regime, particularly as we saw in the early stages of the war and the attempts to capture Kyiv?

The United Nations General Assembly passed a resolution on 2 March last year, which:

“Deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter”.

The Minister knows that that carried the support of 141 states and was a clear, incontrovertible and significant decision by the United Nations General Assembly.

[John Howell]

The hon. Gentleman speaks of other states being involved. Is he aware that a big impetus for the tribunal comes from Estonia, Latvia and Lithuania? That is partly to support Ukraine, but it is also seen as a defensive measure should Russia invade those countries.

[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.