his piece is part two of a conversation with David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina. Part one can be found here.
In recent weeks, prominent figures in international law have called for the creation of an international tribunal, a Special Tribunal for the Crime of Aggression (STCoA), to prosecute Russia’s crimes of aggression. They believe an STCoA could support the work of the International Criminal Court (ICC). But many experts in the international community, including David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina, and ICC Chief Prosecutor Karim Kahn, are not convinced the ICC and STCoA could happily coexist. Schwendiman outlines reasons the STCoA route may not be the best option for Ukraine.
First, Schwendiman notes the problem of funding. “There is only so much political and financial capital available to spend on this sort of thing, and it is stretched as thin as it can be already,” he explained. The international community lost interest in funding the International Criminal Tribunal for the former Yugoslavia (ICTY), perhaps justifiably, after 10 years. The work in Ukraine could easily take just as long. Additionally, there’s the financial burden of building a physical space for an international tribunal. “It took us from 2015 to 2018 to get the money together to reshape and rebuild the physical place in the Hague to do the Kosovo prosecutions,” Schwendiman said, recalling the challenge of constantly justifying expenses to the EU.
Some proponents of an STCoA “know better than anyone how much it takes to keep investigations and prosecutions alive in these kinds of cases,” Schwendiman points out. Funding will be spread thin between the ICC, STCoA, and any prosecution taking place in Ukrainian courts. The will to continue that funding may be spread thin just as quickly. “I just don't think the will [to fund the courts] is there now and I know it won't be there in future when the excitement for doing this at all levels begins to wane—and it will,” Schwendiman argued.
Second, the STCoA could compete with other entities for evidence. “One of the problems from the very beginning is there is so much international assistance being provided [in Ukraine], that there's a risk that [evidence gathering] will be done in a less than well-coordinated way,” Schwendiman says, adding that he thinks this issue is being addressed now more than it was at the beginning of the war. Schwendiman expressed his own struggles with evidence collection and witness testimonies in Bosnia and Herzegovina. “[Witnesses] often had problems with recollection, with conflating their experience with things they had heard from others.” Schwendiman added that too many organizations on the ground— regardless of good intentions— can complicate this: In Bosnia and Herzegovina, witnesses sometimes “conflated what they had learned during the interviews with non-governmental organizations or others trying to provide them with services.” The creation of a special tribunal in addition to the ICC’s work would only further complicate the process of collecting and sharing evidence and witnesses.
Third, getting political actors like Putin or Lavrov on the stand—the main purpose of an international tribunal for crimes of aggression—will be nearly impossible. In an op-ed for Time Magazine advocating for a special tribunal, deputy head of the Office of the President of Ukraine Andrii Smyrnov conceded this harsh reality. Yet Smyrnov insists that actors like Putin should be prosecuted regardless, arguing that it would carry meaning for Ukraine. Schwendiman acknowledges the importance of the affected nation feeling that justice is served. Yet, Schwendiman is cautious about the risk of making unrealistic promises: “Failure to meet expectations that cannot truly be met can compromise the legitimacy of the judicial effort.” In contrast, Schwendiman referenced the ICTY Chief Prosecutor Graham Blewitt’s “genius” strategy of starting with smaller cases involving low-level actors. This resulted in guilty pleas and successful sentences, which established faith in the ICTY and fostered hope among victims.
The problem of competing for funding, evidence and witnesses and the impracticality of prosecuting Russia’s primary actors makes the STCoA seem less than ideal. Schwendiman prefers the Bosnia and Herzegovina completion strategy model, where foreign judges and prosecutors assist the national judiciary in prosecuting cases and sentencing criminals. For a judiciary like Ukraine’s, which Schwendiman described as “not robust” and “considered corrupt before the invasion,” assistance from international experts can lead to development that benefits Ukraine long after the prosecutions are finished.
Schwendiman acknowledges that Bosnia and Herzegovina’s model was not perfect, calling it “a growth experiment.” But Schwnediman points out that thanks to the ICTY and the completion strategy that followed, Ukraine can look to Bosnia and Herzegovina as a model. “[The ICTY] has a massive body of case law that you can go to to help you understand how you’re supposed to put on a case, what the elements are and what the proofs need to be,” Schwendiman explains. Combining that case law with lessons Schwendiman and his team learned at the Special Department for War Crimes of the Prosecutor's Office of Bosnia and Herzegovina could strengthen Ukraine’s judiciary and coordinate prosecution at a much lower cost than an STCoA.
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An International Tribunal is Not Ukraine’s Solution
Photo by Kiryl via Unsplash.
December 15, 2022
In recent weeks, prominent figures in international law have called for the creation of a Special Tribunal for the Crime of Aggression (STCoA) to prosecute Russia’s crimes of aggression. But many experts are not convinced this is the best option, writes CSPC’s Sophie Williams.
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his piece is part two of a conversation with David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina. Part one can be found here.
In recent weeks, prominent figures in international law have called for the creation of an international tribunal, a Special Tribunal for the Crime of Aggression (STCoA), to prosecute Russia’s crimes of aggression. They believe an STCoA could support the work of the International Criminal Court (ICC). But many experts in the international community, including David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina, and ICC Chief Prosecutor Karim Kahn, are not convinced the ICC and STCoA could happily coexist. Schwendiman outlines reasons the STCoA route may not be the best option for Ukraine.
First, Schwendiman notes the problem of funding. “There is only so much political and financial capital available to spend on this sort of thing, and it is stretched as thin as it can be already,” he explained. The international community lost interest in funding the International Criminal Tribunal for the former Yugoslavia (ICTY), perhaps justifiably, after 10 years. The work in Ukraine could easily take just as long. Additionally, there’s the financial burden of building a physical space for an international tribunal. “It took us from 2015 to 2018 to get the money together to reshape and rebuild the physical place in the Hague to do the Kosovo prosecutions,” Schwendiman said, recalling the challenge of constantly justifying expenses to the EU.
Some proponents of an STCoA “know better than anyone how much it takes to keep investigations and prosecutions alive in these kinds of cases,” Schwendiman points out. Funding will be spread thin between the ICC, STCoA, and any prosecution taking place in Ukrainian courts. The will to continue that funding may be spread thin just as quickly. “I just don't think the will [to fund the courts] is there now and I know it won't be there in future when the excitement for doing this at all levels begins to wane—and it will,” Schwendiman argued.
Second, the STCoA could compete with other entities for evidence. “One of the problems from the very beginning is there is so much international assistance being provided [in Ukraine], that there's a risk that [evidence gathering] will be done in a less than well-coordinated way,” Schwendiman says, adding that he thinks this issue is being addressed now more than it was at the beginning of the war. Schwendiman expressed his own struggles with evidence collection and witness testimonies in Bosnia and Herzegovina. “[Witnesses] often had problems with recollection, with conflating their experience with things they had heard from others.” Schwendiman added that too many organizations on the ground— regardless of good intentions— can complicate this: In Bosnia and Herzegovina, witnesses sometimes “conflated what they had learned during the interviews with non-governmental organizations or others trying to provide them with services.” The creation of a special tribunal in addition to the ICC’s work would only further complicate the process of collecting and sharing evidence and witnesses.
Third, getting political actors like Putin or Lavrov on the stand—the main purpose of an international tribunal for crimes of aggression—will be nearly impossible. In an op-ed for Time Magazine advocating for a special tribunal, deputy head of the Office of the President of Ukraine Andrii Smyrnov conceded this harsh reality. Yet Smyrnov insists that actors like Putin should be prosecuted regardless, arguing that it would carry meaning for Ukraine. Schwendiman acknowledges the importance of the affected nation feeling that justice is served. Yet, Schwendiman is cautious about the risk of making unrealistic promises: “Failure to meet expectations that cannot truly be met can compromise the legitimacy of the judicial effort.” In contrast, Schwendiman referenced the ICTY Chief Prosecutor Graham Blewitt’s “genius” strategy of starting with smaller cases involving low-level actors. This resulted in guilty pleas and successful sentences, which established faith in the ICTY and fostered hope among victims.
The problem of competing for funding, evidence and witnesses and the impracticality of prosecuting Russia’s primary actors makes the STCoA seem less than ideal. Schwendiman prefers the Bosnia and Herzegovina completion strategy model, where foreign judges and prosecutors assist the national judiciary in prosecuting cases and sentencing criminals. For a judiciary like Ukraine’s, which Schwendiman described as “not robust” and “considered corrupt before the invasion,” assistance from international experts can lead to development that benefits Ukraine long after the prosecutions are finished.
Schwendiman acknowledges that Bosnia and Herzegovina’s model was not perfect, calling it “a growth experiment.” But Schwnediman points out that thanks to the ICTY and the completion strategy that followed, Ukraine can look to Bosnia and Herzegovina as a model. “[The ICTY] has a massive body of case law that you can go to to help you understand how you’re supposed to put on a case, what the elements are and what the proofs need to be,” Schwendiman explains. Combining that case law with lessons Schwendiman and his team learned at the Special Department for War Crimes of the Prosecutor's Office of Bosnia and Herzegovina could strengthen Ukraine’s judiciary and coordinate prosecution at a much lower cost than an STCoA.
