The International Criminal Court
Participants discussed the successes of the ICC’s investigation into the situation in Ukraine, such as the issuing of arrest warrants, and its challenges including the current political pressures; limited resources; ways to improve public understanding of its role and remit; and its critical work on incorporating a victim-centred approach to pursuing justice.
The workload of the small team working on the Ukraine investigation, including the deportation of Ukrainian children was described as “similar to that of the ad hoc tribunals but without comparable resourcing”. Yet expectations of the ICC remained high. One participant recalled that “time is of the essence as more and more children are becoming lost and untraceable”, making it harder to secure evidence for trial and for family reunification.
It would remain important for the ICC to demonstrate to States Parties how it was working efficiently. However, an honest conversation was also needed on “the true cost of doing international justice properly” and for realistic expectations of the Court.
The Special Tribunal for the Crime of Aggression against Ukraine (“the CoA Special Tribunal”)
Experts discussed the significant recent progress toward the establishment of the CoA Special Tribunal under the framework of the Council of Europe, and lessons to be drawn from previous ad hoc tribunals. From the outset, the CoA Special Tribunal would require high levels of political and public support as well as clarity around its remit, mandate, and its relationship with the ICC (relevant participants made it clear that it had been designed to complement, rather than duplicate the ICC’s work). This would be key for expectation management and ongoing efforts to engage states beyond Europe.
Trials in absentia would be permitted, as per the CoA Special Tribunal’s Statute. It was noted that this was an unfamiliar practice for some states. The principle of complementarity, and the primacy of the ICC were key in the relevant Core Group negotiations on the CoA Special Tribunal, and the drafters took into account various tribunals’ precedent, rules, and procedures, including: ICC Rule 61 (former ICTY Rule 61) on the confirmation hearing process to proceed with the accused in absentia, the ongoing Kony case at the ICC, as well as discussions with victims groups and civil society organisations.
Universal jurisdiction
Experts discussed the role that universal jurisdiction could play, with Germany leading the way in recent years. Challenges included legislative limitations, resourcing at national level, cooperation on the physical location of suspects, and prohibitions of trials in absentia in some domestic legal systems.
One commentator noted that states that did not have universal jurisdiction should focus on other ways to pursue justice, including criminal accountability via statutes that provide for broader jurisdiction – extraterritorial jurisdiction (e.g. Foreign Corrupt Practice Act in the USA), present-in jurisdiction (war crimes statutes) – as well as utilising existing statutes creatively such as money laundering statutes to “follow the money”. States with limited universal jurisdiction could do more to utilise the powers they already had.
Communication and outreach
For both the ICC and CoA Special Tribunal, but also other justice efforts including under the principle of universal jurisdiction, stakeholders were encouraged to proactively communicate their work. This could include communicating the ‘big picture’ (i.e. how efforts fitted into the ‘web of accountability’) and factual and digestible narratives of cases, emphasising their judicial independence and how cases met international fair trial standards. This would help counter disinformation campaigns fuelled by social media and AI that seek to “introduce shades of grey” and undermine the legitimacy of accountability mechanisms. Actively raising public consciousness of the crimes committed in the conflict was considered essential to maintain public support for judicial processes. This would in turn be critical in maintaining political support for the relevant mechanisms.
Recommendations
- All relevant stakeholders, including governments, parliaments and civil society should actively enhance and coordinate efforts to disseminate counter-narratives to disinformation campaigns including on social media. This could be supported by closer work between legal and media professionals to ensure both timely and accurate reporting of cases; and donor requirements on communication and outreach. Where appropriate, the coordination and amplification of messaging could help to achieve greater impact.
- When established, the CoA Special Tribunal should consider
- having a strong communication strategy and communications and dedicated media expertise to engage and inform the public, journalists, lawyers, victims’ organisations, professional bodies, universities etc.providing media training to the prosecutor, judges and senior staffinvesting in a high-quality and accessible website to explain the Tribunal’s role and allow interested audiences to follow cases, receive updates, access judgments and understand procedures easily.
- creating a working group to consider standards and modalities for the possibility of victim participation, whilst not undermining the efficiency of proceedings (as per Article 22 of the Tribunal’s statute).