우크라이나에 대한 침략범죄의 기소 및 처벌을 위한 특별재판소 설립 문제

Since the Russia’s full-scale invasion of Ukraine launched on 24 February 2022, various proposals have been suggested to establish an ad hoc (special) tribunal for the prosecution and punishment of the crime of aggression against Ukraine because at present the International Criminal Court(ICC) cannot exercise its jurisdiction due to the Russia’s being non-state party to the Rome Statute. The modes or the options of establishing the special tribunal could confront considerable difficulties and uncertainties as they require a more dynamic interpretation of current international law. We should consider many legal issues in creating the ad hoc tribunal. The issues include i) What is the legal basis for the jurisdiction of such a special tribunal?, ii) Should the tribunal be established as an judicial organ of national criminal justice system or independent international court?, iii) Whether the Russian or the DPRK(North Korea) should consent to the creation of the ad hoc tribunal, and iv) Whether the Russian or the North Korean leaders could enjoy the state immunities before such a tribunal or not? As experienced in the precedents of establishing the Extraordinary Chambers in the Courts of Cambodia(ECCC), the Extraordinary Chambers of Africa(ECA), and the Kosovo Specialist Chambers, if the ad hoc tribunal for the crime of aggression would have the status of the judicial organ of Ukrainian national court system, there should be the difficulties in characterizing the tribunal as ‘international’ tribunal and therefore in denying the state immunities to the troika(that is, head of state, head of government, minister of foreign affairs) of the Russia or the North Korea. There could also be the difficulties in clearly solving the problem of rejecting state immunities of the troika, if the special tribunal would be established in the mode of hybrid court in regional or domestic level. In this context, the most important factor in establishing an efficient ad hoc tribunal for the crime of aggression against Ukraine is that the ad hoc tribunal should have ‘truly international’ character on behalf of the international community as a whole because, as a matter of principle, state immunities cannot be enjoyed before international courts or tribunals. But there still remains a problem of which court or tribunal can be considered as being ‘international’. The Establishment of a tribunal of a nature similar to the Special Court for Sierra Leone(SCSL) could be invoked as an existing precedent in denying the criminal state immunities of the troika. Considering the current state of international law, the most feasible way to create the special tribunal for the crime of aggression seems to be the adoption of a resolution by the U.N. Security Council(UNSC) according to Chapter VII of the U.N. Charter. But this way seems to be unreal as the Russia, a permanent member of the UNSC, is anticipated to veto the adoption of the resolution. Therefore, under the present circumstances, it seems to be widely proposed that, as the second alternative, we can use the broad interpretation of the U.N. General Assembly(UNGA)’s power based on the “Uniting for Peace” resolution. Given UNSC’s inability to perform its duties due to the veto of one of its permanent members, Russia, the UNGA could exceptionally either create itself an ad hoc tribunal. This signifies that the prosecution or punishment of the crime of aggression against Ukraine would be made by virtue of conclusion of a multilateral treaty with the resolution of a body representing the international community as a whole. this multilateral treaty should include as many state-parties as possible. From this perspective, it is actually advisable that, for the special tribunal to get the truly international character, an international agreement should be concluded with the recommendation or auspice of the UNGA.