Selectivity and the ‘Brick-by-Brick Defence’: A History-Based Critique of the Proposed Special Tribunal for Ukraine

With the war in Ukraine entering its second year, an academic debate has flourished regarding whether international criminal law ought to be used as a tool to remedy Russia’s devastating invasion. The most high-profile suggestion has come in the form of a statement calling for ‘the creation of a Special Tribunal for the punishment of the crime of aggression against Ukraine’.[1] The statement has received signed support from a plethora of influential individuals, ranging from eminent professors of international law, such as Dapo Akande, to politicians, like Gordon Brown, and public intellectuals, including Stephen Fry. The statement calls for the creation of an international criminal tribunal ‘to investigate the acts of violence by Russia in Ukraine and whether they constitute a crime of aggression’, and to prosecute ‘both the perpetrators of the crime of aggression and those who have materially contributed to or shaped the commission of that crime’.[2]

However, the suggestion of a Special Tribunal has not been met without opposition. Professor Kevin Jon Heller has raised several objections to the proposal.[3] His most powerful objection is that a Special Tribunal would portray international law in a disastrous light, as trying Russian aggression displays a selectivity in prosecution that is ‘so obvious, and so indefensible, that international lawyers simply have to say enough is enough’.[4] The problem of selective prosecution is colloquially encapsulated by the phrase ‘one rule for us, another rule for them’. As Heller reminds us, a coalition led by the UK and the US undertook, on false pretences, the invasion of Iraq, which led to the deaths of 200,000 civilians.[5] Yet, no prosecutions for aggression against Iraq took place. Thus, the international community prosecuting Russian aggression through a Special Tribunal, a proposal supported by the very states that invaded Iraq, would be a blatant example of selectivity. On this basis, Heller concludes that we should seek some other legal mechanism, rather than a Special Tribunal, to hold Putin and Russia accountable for their aggression.[6]

The problem of selective prosecution in international law is not a trivial one. As Professor John Tasioulas highlights, selectivity violates the rule of law by undermining the equality of defendants before the law.[7] On this basis, Professor Mark Osiel has argued that selectivity undermines the legitimacy of international law and has contributed to ‘the demise of international criminal law’.[8]

Some have sought to justify selective prosecution in international criminal law. Tasioulas summarises one of the most prevalent defences of international legal selectivity as:  

‘A pragmatic response, according to which the edifice of international criminal justice must be patiently built up, brick by brick, and that…[selective] prosecutions have their value, despite the cost incurred in transgressing the rule of law, as they are part of an ongoing effort to make international criminal law more generally effective over time’.[9]

We can term this justification of selectivity the ‘brick-by-brick defence’. In a recent blog post, Carrie McDougall seeks to refute Heller’s skpetcism regarding the Special Tribunal, arguing instead that creating a Special Tribunal is the best option available.[10] She rebuts worries about selectivity through the following justification:

‘I don’t see the advantage of standing on principle and letting perfect be the enemy of good. I think we can acknowledge that justice is currently selective and advocate for better outcomes in the future’.[11]

In arguing that, as a stronger prohibition of selectivity can be achieved in the near future, derogation from the rule of law (via selectivity) is justified on the basis that it will strengthen the efficacy of international law, McDougall demonstrates the key future-looking trope of the brick-by-brick defence. However, historical analysis of international criminal law elucidates the brick-by-brick defence of the Special Tribunal to be unconvincing.

There is an unfortunate and consistent history of selectivity within international criminal law. The Nuremberg Trials (1945) and Tokyo Trials (1946) were selective, as only the Axis powers faced prosecution for war crimes, despite the indictment also clearly applying to the Allied area bombing of German cities and Soviet Eastern Front massacres. Indeed, the International Criminal Tribunal for the former Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994) were also both problematically selective. As Professor Robert Cryer demonstrates, the jurisdiction of the tribunals was arbitrarily subjected to strict temporal and geographical limitations (created due to political interests) which meant that certain perpetrators could not be prosecuted.[12] Thus, the potential selectivity of the Special Tribunal cannot be considered exceptional, as such selectivity fits the unfortunate historical trend of international criminal law.

An argument could be made that the brick-by-brick defence is persuasive in the case of Nuremberg, the first international criminal tribunal. At the time of Nuremberg, it would be plausible to say both that: (1) the rule of law must be derogated from to secure the future of international criminal law through the punishment of Nazi defendants, and (2) the prohibition on selectivity and a strong conception of the rule of law would soon be crystalised in international criminal law.

However, in light of its status as merely another selective trial in a long line of selective trials, the brick-by-brick argument is unpersuasive when applied to the Special Tribunal. Whilst continually developing, international criminal law has now existed for seven decades. At what point can we no longer justify selective prosecution, and violating the rule of law, based on the infancy of international criminal law and its required development? The brick-by-brick defence cannot answer such a question. There is no more an objective sense now than at Nuremberg that the absolute outlawing of selectivity in international criminal law is imminent. Indeed, there is no suggestion of what realistic institutional benchmarks within international law must be achieved before an absolute prohibition on selectivity can be enforced in criminal tribunals. Given the long history of selectivity, any idea that the Special Tribunal would be the last, or one of the last, selective trials is an unfounded delusion. Given the apparent ad infinitum nature of the brick-by-brick defence, in which some vague notion of the future seemingly always justifies rule of law violation in the present, such a defence of the Special Tribunal must be met with great scepticism. On this basis, we should agree with Heller that selectivity is unjustified and that the legal response to Russian aggression lies away from a Special Tribunal.

[1] Statement: Calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine (4 March 2022) <https://gordonandsarahbrown.com/2022/03/calling-for-the-creation-of-a-special-tribunal-for-the-punishment-of-the-crime-of-aggression-against-ukraine/>.

[2] Ibid.

[3] Kevin Jon Heller, 'Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea' (OpinioJuris, 7 March 2022) <https://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-is-a-bad-idea/> accessed 1 December 2022.

[4] Ibid.

[5] Ibid.

[6] Kevin Jon Heller, ‘The Best Option: An Extraordinary Ukrainian Chamber for Aggression' (OpinioJuris, 16 March 2022) <https://opiniojuris.org/2022/03/16/the-best-option-an-extraordinary-ukrainian-chamber-for-aggression/> accessed 1 December 2022.

[7] John Tasioulas and Guglielmo Verdirame, ‘Philosophy of International Law’ in Edward N. Zalta (ed), The Stanford Encyclopaedia of Philosophy (Summer 2022 Edition) <https://plato.stanford.edu/archives/sum2022/entries/international-law/>.

[8] Mark J. Osiel, ‘The Demise of International Criminal Law’ (Humanity Journal Blog, 10 June 2014) <http://humanityjournal.org/blog/the-demise-of-international-criminal-law/>.

[9] Tasioulas and Verdirame (n 7).

[10] Carrie McDougall, ‘Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics' (OpinioJuris, 15 March 2022) <https://opiniojuris.org/2022/03/15/why-creating-a-special-tribunal-for-aggression-against-ukraine-is-the-best-available-option-a-reply-to-kevin-jon-heller-and-other-critics/> accessed 1 December 2022.

[11] Ibid.

[12] Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (CUP 2005) 210.