The Time to Prosecute Top Russians for the Crime of Aggression Is Now, Says a War Tribunal Expert
Hans Corell knows how to establish war crime tribunals. The Swede is a former top legal expert for the United Nations who served under Secretaries-General Boutros Boutros-Ghali and Kofi Annan and, on behalf of the institution, was instrumental in setting up criminal tribunals in Yugoslavia, Rwanda, Sierra Leone and Cambodia. The time to negotiate a special tribunal to prosecute top Russian officials for the crime of aggression in Ukraine is now, he says.
"With Russia, you have a dangerous situation where a permanent member of the Security Council is violating the most fundamental principles and provisions in the UN Charter," Corell, who was an under secretary-general for legal affairs and legal counsel, said in an interview from his home in Sweden in January. "The whole world order is essentially being attacked . . . . the United Nations simply has to act."
As Russia's invasion of its neighbor, on Feb. 24, 2022, reaches its grim one-year anniversary, Sergiy Kyslytsya, Ukraine's ambassador to the UN, has been leading an effort there to establish a UN-backed international tribunal to prosecute Russia's senior-most government and military officials with the crime of aggression, and Corell, 83, is one of the prominent legal minds who's been working behind the scenes hashing out the details for such a proposal.
Corell is part of the Ukraine Task Force of the Global Accountability Network, a project led by Prof. David M. Crane, who was the former chief prosecutor for the UN-backed Special Court of Sierra Leone. (The court was established in 2002 to prosecute violations of international humanitarian law and crimes committed under Sierra Leonean law during the country's civil war, from 1991 to 2002.) The task force is sponsored by Crane's Global Accountability Network, a nonprofit group based in the United States that seeks justice for "victims of atrocity crimes around the globe through the rule of law," according to its website. The task force also includes Irwin Cotler, a professor of law at McGill University, in Montreal.
In a phone interview with PassBlue, Crane described Corell -- his "longtime friend" -- as the "father of modern international criminal law."
Born in Vastermo, Sweden, on July 7, 1939, Corell served as the UN's top legal expert from 1994 to 2004. Additionally, under Annan, the UN secretary-general from 1997 to 2006, Corell was his representative at the Rome Conference in 1998, where the Statute of the International Criminal Court (ICC) was adopted. That step brought Corell's career and recent work on the proposal for a special tribunal for Ukraine full circle.
The ICC investigates and "where warranted, tries individuals charged with the gravest crimes," including genocide, war crimes, crimes against humanity and the crime of aggression, its website says. Considered the "mother of all crimes," the crime of aggression is recognized as the one that makes all other crimes possible.
However, as PassBlue reported in December, aggression is the one atrocity crime that's the exception, as the ICC cannot prosecute the offense because it has jurisdiction only over the 123 member states that have ratified the Rome Statute, the treaty that established the court. Neither Ukraine, Russia nor the US is a party to the ICC.
Even though on Feb. 28, four days after Russia invaded Ukraine, ICC Chief Prosecutor Karim Khan opened an investigation into "alleged war crimes and crimes against humanity" committed on Ukraine's territory by "any party to the conflict," Ukraine's President Volodymyr Zelensky and the minister of foreign affairs, Dmytro Kuleba, have been publicly calling on the international community to support a new global prosecutorial body: a tribunal for the crime of aggression to hold Russian President Vladimir Putin and others in the country’s highest seats accountable for the war in Ukraine.
According to the latest totals from the Office of the UN High Commissioner for Human Rights (OHCHR), 18,358 civilian casualties have been recorded in Ukraine, including 7,031 killed and 11,327 injured between Feb. 24, 2022 and Jan. 15, 2023. The total includes men, women and children, and the numbers are likely to be considered higher, the UN notes.
The most recent attack in Ukraine occurred on Jan. 15, when a Russian missile ripped through an apartment complex in Dnipro, a city in the southeast, reportedly killing over 40 civilians with many more missing. On Twitter, Zelensky blasted the perpetrators and vowed to find and hold accountable "everyone involved in [the] terror."
https://twitter.com/ZelenskyyUa/status/1614297489565155335?s=20&t=Mp952vMi8WbwcHQUvVFw-g
Dmitry Peskov, the Kremlin's press secretary, denied responsibility for the attack. "The Russian Armed Forces don't target residential buildings or social infrastructure facilities," he said at a press conference. "The attacks are only aimed at military targets."
The attack in Dnipro came a few days after Ukraine's first deputy foreign minister, Emine Dzheppar, addressed the UN Security Council on Jan. 12 and 13, calling on its members to back Zelensky's plan to hold a "peace formula summit" at the UN in February and to agree on the creation of a UN-backed special tribunal to prosecute the crime of aggression. Dzheppar also met privately with Rosemary DiCarlo, the head of the UN's Department of Political and Peacebuilding Affairs, and Csaba Korosi, the president of the General Assembly.
Dzheppar did not meet, however, with the US ambassador to the UN, Linda Thomas-Greenfield, who would be a crucial diplomat at the UN to provide an endorsement for a tribunal. Despite the US being one of Ukraine's loudest supporters and largest financial backers -- it has committed more than $50 billion in aid to Ukraine since the start of Russia's invasion in February 2022 -- Thomas-Greenfield has not publicly mentioned the establishment of a tribunal for Ukraine focusing on the crime of aggression. Instead, in her remarks on Jan. 12 in the Security Council, she asked whether the international community is using "the many tools" at "its disposal to enforce international law."
"In light of all the violations of international law we see today," Thomas-Greenfield said, "We have to ask ourselves, are we using these tools effectively?"
One of the latest mentions of a tribunal came from Annalena Baerbock, Germany's foreign minister, who, during a speech at the Hague Academy of International Law, on Jan. 16, said that Russia's invasion had exposed an "accountability gap" between "Russia's war of aggression and the ICC." Instead of weakening the court with the creation of a new international tribunal, Baerbock suggested strengthening the ICC "in the form of a court that derives its jurisdiction from Ukrainian criminal law" and supplemented by an "international component.”
Additionally, on Jan. 19 the European Parliament is scheduled to vote on a resolution for establishing a tribunal on the crime of aggression against Ukraine. This initiative is separate from the UN proposal and follows remarks made on Nov. 30, 2022, by European Commission President Ursula von der Leyen, who in a media interview announced a European Union proposal "to set up a specialized court, backed by the United Nations, to investigate and prosecute Russia’s crime of aggression." On Jan. 17, at the World Economic Forum in Davos, Switzerland, von der Leyen reiterated Europe's support for a special tribunal. She said that "Russia cannot get away with what it's done to the Ukrainian people." [Update, Jan. 19: The EU Parliament voted 472 in favor and 19 against with 33 abstentions, to adopt a resolution demanding that Russian military and political leaders be held accountable for the crime of aggression in Ukraine]
Meanwhile, when a reporter at a UN press briefing on Jan. 12 asked Ukraine's Dzheppar about potential obstacles to creating a special tribunal, she said that "the Ukrainian leadership decided" that its "priority No. 1" is passing a UN resolution on Zelensky's peace formula in February. (A related "peace formula summit" plan to be held at the UN next month was recently scrapped by Ukraine.)
Dzheppar added that an "accountability resolution [for a special tribunal] might be considered later on this year." The announcement marked a notable shift in Kyiv's strategy, as Zelensky has repeatedly called on the international community to "turn [the tribunal] into reality as soon as possible" and not to wait "for the end of the war."
PassBlue asked Corell whether he thought Ukraine's pivot indicated a lack of major support among member states for a UN-backed tribunal dedicated to the crime of aggression. Corell said he didn't want to speculate on the reason or the timing of Dzheppar's announcement, given that he's not familiar with the "different views" in the negotiations, but he urged UN member states to act with "determination" as "Russia is committing war crimes in Ukraine every day."
In two separate phone interviews with Corell, on Jan. 4 and 16, he talked about his recommendations for Ukraine's special tribunal, why countries must hold Russia accountable for war crimes and the crime of aggression and how a trip he made to Baghdad to meet with Saddam Hussein in 1998 inspired a song he wrote for Secretary-General Kofi Annan at the time. Annan, who died on Aug. 18, 2018, five days after Corell's wife, Inger, died from cancer on Aug. 13. Corell has two children and three grandchildren. He received his law degree from the University of Uppsala and has been awarded honorary doctor of laws degrees from Stockholm University and Lund University. -- DAWN CLANCY
The interview has been edited for clarity.
PassBlue: After a decade at the UN, you retired from public service in June 2004, so how did you get involved with David Crane's Global Accountability Network and its Ukraine Task Force?
Corell: David Crane and I have known each other for many years. I was involved in recruiting Crane as the chief prosecutor of the Sierra Leone tribunal as I was involved in the establishment of that court. So, we've known each other for many years, and we have had several contacts over the years. He was the one who informed me about the working group, and then I joined the team.
PassBlue: The proposal you've presented with the Ukraine Task Force for a UN-backed tribunal is a mix of the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, which prosecuted members of the Khmer Rouge regime for genocide and crimes against humanity committed from 1975-1979. How did you develop this proposal, and why do you think it is the best option for Ukraine?
Corell: The government of Sierra Leone asked Kofi Annan to organize an agreement between the United Nations and Sierra Leone. Initially, they wanted the Security Council to create a Rwanda type or Yugoslav tribunal, but the Council was not prepared to set up such a big tribunal. So I was charged with negotiating that agreement [between the UN and Sierra Leone]. And it was a very good negotiation with the Minister of Justice Solomon Berewa. We signed the agreement on the 16th of January 2002. [The International Criminal Tribunal for the former Yugoslavia was created in 1993 to prosecute war crimes committed during the Yugoslav wars in the 1990s. The International Criminal Tribunal for Rwanda was set up in 1994 to prosecute the genocide there.]
So the model for Ukraine should be the Sierra Leone tribunal, but Ukraine cannot go to the Security Council as Sierra Leone did for the simple reason that Russia will veto such a proposal. That's why I suggested another agreement I negotiated, namely the agreement between the United Nations and Cambodia. Here, Cambodia didn't turn to the Security Council; instead, it turned to the General Assembly and asked for an agreement. I negotiated that agreement with the deputy prime minister of Cambodia, Sok An. So it's a mixture of Cambodia and Sierra Leone. Like the Cambodia mechanism, the General Assembly should adopt a resolution for a Ukraine tribunal, but the model of the tribunal should be Sierra Leone.
PassBlue: What's the difference between the Cambodia "mechanism" and the Sierra Leone "model"?
Corell: Ukraine cannot turn to the Security Council for the simple reason that Russia would use the veto. So, this is why I mentioned Cambodia as the mechanism because Cambodia also wanted a tribunal, but they did not go to the Security Council. They went to the General Assembly. But the model for the tribunal agreement should be Sierra Leone.
PassBlue: If you're up for it, I'd like to ask you a couple of more personal questions. For example, what have you been doing since you retired? Do you have any hobbies?
Corell: I'm not so active at present, but I like to play the Scottish highland pipe. For example, before he died, I gave Kofi Annan a gift. I composed a song for him called "Secretary-General Kofi Annan's Prayer for Peace."
PassBlue: What inspired you to write Kofi Annan a song on your bagpipe?
Corell: I got the idea when we were sitting in Baghdad the evening before we were to meet with Saddam Hussein in 1998. We were looking at the text of the agreement to be signed between the UN and Iraq, and I asked Kofi if there was anything else he wanted me to do. He fell silent for a while and then said, 'You know, it often helps to pray.' That gave me the inspiration to compose that piece of music for the bagpipe.
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