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Jason McCue

Partner, McCue & Partners LLP

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The politicians can help us help them by ensuring all three legal constituencies are heard together at each table that is developing the broadest possible justice solutions for Ukraine

Justice for Ukraine: plugging the justice gaps

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Justice for Ukraine: plugging the justice gaps

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Dr Jason McCue presents the differing views within the legal community on providing justice for Ukraine in the context of the recent Justice and Accountability for Ukraine conference and the need for a permanent peace court

People must be confused as to why Ukrainian justice is still in limbo when the need, desire and merits of it are so clear. At the Justice and Accountability for Ukraine (JAFUA) conference, held on 1 February, concerning a special tribunal for Ukraine, the frustration of Ukraine’s very able and charismatic Prosecutor General, Andriy Kostyn, was understandable and shared by all. The conference highlighted not only the legal challenges but how politics is the driving force behind encouraging, forging and maintaining the pathways to justice. While political divergence is inevitable, there thankfully now appears enough consensus within a solid rump of pro-Ukraine states to progress beyond or around the challenges.

Three different views on providing justice for Ukraine

Not unreasonably the politicos look to the legal community for guidance, justification and implementation across their justice policies. One almost feels for the politicians who are receiving mixed messages from the lawyers, prolonging the limbo. The legal world appears divided into camps. The unintended consequence of divergence within the legal fraternity is creating a bottleneck.

There are three broad churches within the legal sector on approaches to delivering Ukrainian justice: the conservative internationalists (in low attendance at the conference), the pragmatic internationalists (in force at the conference) and the modern radicals (looking lonely at the conference). The conservative internationalists rarely like to leave their ivory towers and focus solely on justice being delivered through – what has become the accepted norm post WW2 – the established international courts and laws. Their ascendency naturally soaks up the oxygen of the broader debate (and therefore public funding) and unfortunately strangles progress on alternative justice avenues.

These internationalists have ironically become conservatives. Weaned on the success of the post-war development of international law and its courts, these once radicals have now become the establishment landscape. This inevitably created a generation of believers whose faith never dies even when their belief structures fail. It has also created a legal bureaucracy that has fostered legal apparatchiks. The apparatchiks work, live and breathe within the grey corridors of their international ivory towers, where windows offer limited views of the alternative legal landscape outside. Critics say they blindly cling to the notions, ideals and beliefs of the United Nations (UN), the International Court of Justice (ICJ) and the International Criminal Court (ICC), and harsher ones feel it is akin to the KGB romanticising the Lubyanka.

For others, established international structures are too limited or not fit for purpose in today’s world; the UN’s legal functions flawed by the veto system, the ICC’s restrictive ambit and low output (its £160m annual budget has only managed 10 successful prosecutions in over two decades). The modern radicals and pragmatists respect the faith of the conservatives in their system but despair with it at times: the broken and imperfect institutions, the blinkered reliance on it alone, the lack of tolerance for other alternative justice beliefs, its dominance and control by indulgent priest like states, or its failures in adapting to meet the justice needs of today.

Radicals either look to drive solutions outside of the international courts within the frontier lands of the worlds domestic courts or seek to shake them up or widen the doors and purposes for state and non-state actors. The pragmatic internationalists in the Ukrainian debate, are concerned with the limitations of the other churches and, therefore, rightly believe the gap must be plugged with a new bespoke specialist hybrid platform – something in-between an international and a Ukrainian court – a special tribunal for Ukraine. The truth is that all three views and their methodology are valid, not mutually exclusive, and should all be pursued. The legal sector would assist the politicos more by advocating the benefits of a more inclusive and multi-dimensional approach to providing justice for Ukraine, rather than being fundamentalist about their own approach. We are all equally at fault. Mixed conferences and working groups are beneficial to let the internationalists have a day out of their ivory towers and bring the radicals back from their hinterlands.

The accountability gaps

There are huge accountability gaps on justice for Ukraine. Six example gaps to plug (and there are many more) demonstrate the need for a progressive multi-dimensional legal approach to deliver the breadth of justice Ukraine needs and deserves.

First, while the crime of aggression was activated by the state parties to the Rome Statute in 2017, the ICC lacks jurisdiction to prosecute Russia for the crime as Russia is not a party to the Rome Statute. Alternatively, the ICC's jurisdiction over the crime of aggression can be triggered through a UN Security Council referral, but Russia's veto power prevents such referral. Thus, political consensus is lacking to enable the Treaty of Rome’s baby to prosecute this crime in the current conflict. The pragmatists are right that a special tribunal is the only way to plug this gap and plug it we must, so why not get on with it. Some shudder at the delay due to what appears to be the ICC apparatchiks’ approach of jealously defending their territory and, thus, playing mawkish nursery games with Ukrainian justice. As Professor Phillipe Sands KC so rightly put it during the conference – this is not a question of law, it is a question of turf. Ukraine’s bespoke hybrid tribunal should be fast tracked, we should stop just debating its political and legal challenges and rather let them be met in the design and implementation process or even later, through its judges. For instance, navigating personal immunities of the accused does not need the UN Security Council to disapply them, but simply to rely on established international law and practice being applied in the tribunal.

A second accountability gap is born out of the consequence that it runs counter to the internationalists’ belief in the sanctity of international criminal law, and that the stigma of criminal prosecution provides sufficient justice and acts as a deterrent. They are palpably wrong. Putin openly mocked the recent criminal charges laid against him by the ICC. The pure focus of international justice on criminality has not stopped conflict in our lifetime. We need to accept in the modern world that the stigma and restrictions of criminal law alone do not stop dictators or kleptocracies. That is because their likes not only scoff at the rule of law, but they reject our systems and wear its criminality as a badge of honour within their constituencies. What deters them are financial penalties and having to pay for their wrongdoings. Effective justice for the global all needs to carry a financial cost. Justice for Ukraine is a coin that has two sides; Ukrainians need the international community to validate their position by criminalising the wrongdoers for the harm done to them, but they also need Russia to pay for the losses that have resulted from that harm. The apparatchiks in their ivory towers miss a key point: that true justice on the ground is also about financial accountability, not just about token wrongdoers being convicted. The crime of aggression in itself is perfectly placed to encompass consideration of the greatest breadth of damages caused to Ukraine. The ambit of ICC crimes similarly. Any relevant international criminal justice platform could be modelled to also make a judicial assessment of criminal damages or the fine flowing from the crime. Such an assessment is key to enabling a compliant way to confiscate relevant Russian assets to satisfy such fines or reparations. Even if the platform’s crimes are focused on individuals, fines and damages might at the very least be attempted to be framed to capture state assets (not least as proceeds of crime), particularly where the individuals, especially with the crime of aggression, are often proven to control, use and benefit the state through their crimes. The radicals advocate that internationalist approaches must modernise to include and attach assessed criminal damages awards, or at the very least punitive fines. Otherwise, the only avenue for direct financial accountability – as reparations commissions focus on voluntary contributions – is to rely on lawfare litigation in the domestic courts to make elements of Russia pay.

A third accountability gap is overlooked because of the inconvenient truth that it sours political support. The ICJ allows for state-to-state disputes, but it has little enforcement powers when faced with the veto of a permanent member of the Security Council. The crime of aggression (like other international crimes within the ICC) is focused on the individual. It concerns the crimes of individuals controlling the acts of aggression. Thus, the debate, whether on the special tribunal or the ICC for any of its crimes, centres on their designated ambit, the liability of individuals. And so, the current debate on justice for Ukraine inherently does the same and avoids the sticky question of state or government liability for the crimes. Self-interested states do not want to expose themselves to uber crimes such as these; it was and continues to be far more palatable to simply expose ‘rogue individuals’ to the crime than the state itself. Nevertheless, everyone can see the justice gap here where individuals can be prosecuted for say ‘controlling’ a state’s aggression but the state itself cannot be held accountable. It is corporate liability in reverse; entrenched views against piercing the sovereign veil of immunity around the state. It is arguably perverse in the modern world. That perversion is ironically highlighted by the current legal conundrum on how to legally justify (noting these limitations to international justice) the confiscation of sanctioned Russian state assets.

Especially with a crime which is predicated on a state attacking the sovereignty of another state – not only should a controlling offender not be able to hide behind the very notion of sovereignty, but neither should the state the individual controls. Absent consensus reform, radicals seek other avenues to make the Russian state accountable for its aggression; in the US, by simply designating Russia a state sponsor of terrorism, its sovereign immunity weakens and makes it vulnerable to legal actions there. In parallel with such efforts, might the internationalists consider asymmetrical ways for relevant international platforms and laws to be extended beyond the ‘individual’ (e.g., the crime of aggression), but in a pragmatic way, only to indirectly ‘encompass’ the offending state. It might be demonstrated indirectly through the way the case is presented or perhaps even through pursuing ‘joint responsibility’ of the state for an attached financial penalty (rather than liability for the crime itself). This argument is compelling in instances where the individual is effectively the state, as opposed to where a state merely fails to control a wayward individual. Pragmatists would say don’t waste your time and don’t slow down the process through adding further complexities around the legal frameworks through which we seek to prosecute. They are right, but radicals are also right to separately but compatibly, and in parallel, fight for their belief that the world and Ukraine needs something better.

There is a fourth accountability gap which appears an enigma to internationalists. This is the need for private and individualised justice for the people. While international courts and special tribunals focus on state or collective justice, they do not as a function provide ‘individualised’ or personal justice or compensation to the person in the street. Attempts to address this through the creation of reparations commissions are pragmatic but limited. At worst, such avenues provide only token or symbolic compensation, and at best are no more than a collective justice mechanism to placate the people. Pragmatic reparations commissions are important but miss the point that Ukrainians are not asking (on the accountability level) for token charitable handouts dressed as collective reparations. They want individualised justice and for the wrongdoer to pay; just compensation for their actual real losses, assessed through a judicial process, that thereby legitimises their personal fight, grief and suffering. The pragmatists understandably believe wholesale individualised justice is too enormous a task to handle and that collective and token justice is the only effective way to deliver any such element of justice. But the Ukrainian people deserve more to close the horrors they have endured; closure is personal and without closure there can be no sustainable stability or peace. Absent the creation of an alternative means, the only established way to achieve this is through lawfare claim litigation. In respect of Ukraine, this means mass class actions in domestic courts (in any court around the world where jurisdiction can be grounded through established notions such as universal jurisdiction, temporary jurisdiction, commercial activity or continuing harm, to name a few grounds). It also means allowing for the domestication of Ukraine court judgments for damages – obtained by Prosecutor Kostyn’s Office and the private sector – in domestic courts around the world to enable their satisfaction against relevant available Russian assets. For internationalists, such an avenue challenges the sanctity of their fundamentalist perspectives and their hallowed ivory towers. As a result of this dynamic, the international community focuses support and funding on internationalist solutions and remains hesitant to do the same to plug this important justice gap.

A fifth accountability gap lies in those non-state actors and corporates that facilitate the crimes of the Russian government and its war machine but often evade liability. While historically, international criminal law has sought to target clear trophy facilitators of international crimes – such as Tesch and IG Farben – Nazi producers of Zyklon B so clearly destined for the holocaust – many international crimes and forums fail to extend to the wider, less striking elements of the war machines that are equally responsible for supporting the broader range of criminality across a war. In modern times, wars are not sustainable without the complicit support and connivance of a state’s private sector. For example, sanction busters, military suppliers and industrial sectors that prop up or propagate the criminally controlled regime. International criminal concepts such as the crime of aggression tend to focus on control rather than covering the more supportive roles (who as a result evade accountability). The classic role of lawfare litigation is closing down such international law loopholes and, thereby, making the Russian private sector war machine accountable. When the tobacco industry went out of control, it was not establishment mechanisms such as regulation that brought it to heel, but tort lawyers. Yet the international community provides no facilitation of such legal avenues to fill this accountability gap for Ukraine.

The final gap is in some way the most pressing and overarches all the others. This is the need to not just provide Ukraine with just reparations to enable them to rebuild their lives post-war, but to provide them with it now to help sustain their war efforts. The internationalists are struggling to consider how their hallowed infrastructure and laws might be used or adapted for these needs. A pragmatist would prefer not to have the added challenges of delivering this objective for fear it may delay justice. The radicals want to push the boundaries of current law and practice within domestic courts, established international and regional forums, and special tribunal models to achieve this goal, but lack any support or interaction to enable them to help pioneer this.

The need for a permanent peace court

Politicians are not getting the unbiased steers from the legal world on justice and multi-dimensional approaches that they need to provide broader solutions to Ukraine. But they must also listen to the global all. A majority of the public reasonably dream of a permanent peace court to tackle the crime of aggression, not only against individuals but against states too. A permanent court depoliticises the criticisms of any special tribunal and counters selective justice inherent within any model that necessarily focuses on the current protagonists. A peace court could develop a reparations element whether through a penal fine or judicial assessment of damages. While valid pragmatic arguments are made about the challenges of obtaining political consensus to create what would be the ultimate nuclear justice deterrent to deter future conflict, the apparatchiks on the other hand make an emotional argument against it; that it would harm and detract from the notion and function of the ICC (that underperforming body, boycotted by three permanent members of the Security Council, which ironically faces the same political consensus challenges). The angels weep. As the conference agreed, aggression is the ultimate crime, the most existentially threatening crime in the world. Does that not deserve its own court and warrant the special and proper attention it deserves? Can anyone contemplating the world’s future really be serious about designating this immense task to a body such as the ICC, or more conveniently passing the buck to an ad hoc tribunal for Ukraine until the next act of aggression and the wheel needs to be reinvented again? Pragmatism is one thing, but emotion is another. As lawyers we should listen to the people and never allow our beliefs and challenges to block the need for ever perfecting justice. It would be a fitting legacy for Ukraine if their special tribunal (which we must pragmatically fast track in its purist form) had a parallel working group looking at how the model might later be developed and transferred into a permanent peace court.

Lawyers are rarely diplomatic, often peacocks, but in fairness we are nurtured to be adversarial and like argument. But somehow, we have to come together, work together and provide a multitrack and diverse consensus to steer politicians to implement action to plug the accountability gaps for Ukraine. Ukraine deserves the justice gap to be filled and for it to be done immediately. As we flounder and pontificate from our own corners of comfortable intellectual practice, more innocent Ukrainian people continue to be murdered by Russian aggressors. That blood brings shame on the indecision and factionalism in our house. The legal community’s diversity should be its strength and not a bottleneck. We need to get on with it, put our inhibitions and prejudices aside, and start the justice journey for the sake of Ukrainians and the global all. The politicians can help us help them by ensuring all three legal constituencies are heard together at each table that is developing the broadest possible justice solutions for Ukraine. On a final note of optimism, to the credit of the JAFUA conference, legal diversity found consensus in its communique – the urgent call to establish a hybrid internationalised special tribunal that can (and should) under established international law and practice disapply personal immunities that might otherwise protect the individuals accused. As a radical, I celebrate progress.

Dr Jason McCue is a senior partner at McCue Jury & Partners LLP and head of www.payback4ukraine.org
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