On August 21, 2023, Ukraine’s capital of Kyiv hosted a large international conference Special Tribunal for the Crime of Aggression against Ukraine: Justice to be Served. The conference gathered key figures behind Ukraine’s push to launch a special tribunal. The event was aimed at reinvigorating global efforts to prosecute the crime of aggression against Ukraine, a crime which cannot be prosecuted under the current jurisdictional regime of the International Criminal Court. The conference was even more relevant, because despite optimistic expectations at the beginning of the year, disagreements between Ukraine and its allies have left some wondering: in the end, will justice be served?
Many in Ukraine believe that justice would be served when a fully-fledged international special tribunal for the crime of aggression is created. In the ICJ’s Arrest Warrant ruling (Democratic Republic of Congo v. Belgium), the Court stated that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.” Thus, establishing an international criminal court would help keep Russian officials accountable. Furthermore, it would also secure the necessary level of legitimacy in the eyes of the international community and ensure a truly global scope of its decisions.
However, some of Ukraine’s allies, including the US, UK, and Germany, have a different idea of the path to justice. They endorse a hybrid (internationalized) tribunal. Most often, they want it to derive its jurisdiction from Ukrainian criminal law. This article will explore the hybrid model and why some in Ukraine are opposed to this model.
Implications of a hybrid tribunal
Hybrid tribunals are a unique form of ad hoc criminal tribunals that combine both national and international elements. Hybrid tribunals themselves are quite heterogeneous: while the Special Court of Sierra Leone was established by an international treaty between the UN and Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia were established by domestic law and were only supported by the UN in accordance with the respective Agreement. These differences result in varying degrees of ability to prosecute foreign leaders. In Prosecutor v. Taylor, the Special Court for Sierra Leone examined whether it could prosecute Liberian President Charles Taylor. In that decision, the Court referred to the powers of a “truly international” court, which is an “expression of the will of the international community.” Not all hybrid tribunals satisfy this requirement (arguably as in the case of the Extraordinary Chambers in the Courts of Cambodia). Thus, while the hybrid nature of a tribunal does not necessarily preclude the prosecution of foreign leaders, it might make prosecution more difficult.
Moreover, other technical complexities add the difficulty of establishing a hybrid tribunal. For example, under Article 126 of Ukraine’s Constitution, foreign citizens cannot be judges, which makes it impossible for an internationalized tribunal to form part of Ukraine’s judicial system.
Finally, in such a case with high political stakes involved, it is crucial to ensure impartiality and neutrality of the future tribunal. This will have a direct bearing on the cooperation between such a tribunal and sovereign states, especially those preferring not to take sides in the context of the war in Ukraine. Thus, a fully international tribunal would in this aspect would likely be more suited than a hybrid one.
Where are we now?
The government of Ukraine has recorded more than 136,000 crimes committed by Russia since February 2022. About 11,000 civilians have been killed, including more than 500 children. At least 20,000 more children have been abducted and forcibly taken to Russia, and Russia has also destroyed more than 116,000 civilian infrastructure facilities in Ukraine.
Therefore, it is appropriate and legitimate that Ukrainians ask the international community to take the lead in establishing a special tribunal, which would not only provide justice for Ukraine, but would revive the rules-based international legal order.
Today, there are already numerous resolutions by the Parliamentary Assembly of the Council of Europe, the European Parliament, NATO Parliamentary Assembly, and the Parliamentary Assembly of the Organization for Security and Co-operation in Europe. The Seimas of the Republic of Lithuania and the parliaments of Estonia, the Netherlands, the Czech Republic, France, and Latvia have also adopted a resolution to support the establishment of a special tribunal for the crime of aggression.
Ukraine’s Ministry of Foreign Affairs established a Core Group, which by July 2023 consisted of 38 states, to create a special tribunal on the crime of aggression. It serves as the main platform for exploring legal and technical issues involved in the creation of such a tribunal and calls on other states and international organizations to join the collective work.
On July 2, 2023, the Interim Prosecutor’s Office opened in The Hague to carry out an international investigation and prosecution of Russian war crimes and directly collect evidence and facts for the trial of the crime of aggression. This would surely facilitate the work of a special tribunal yet to be established.
Moreover, Ukraine is launching an International Compensation Mechanism consisting of a register of losses, a compensation commission, and a compensation fund. The UN General Assembly adopted a resolution that supported Ukraine in seeking Russia to pay war reparations to Ukraine. The Register of Damages has been established at the Hague, but other elements, like a claims commission and a fund, have not yet been created.
The type of court to prosecute Russia’s crime of aggression against Ukraine remains unresolved. A fully international special tribunal would be able to ensure full prosecution of the crime of aggression. Such a tribunal would likely need an endorsement from the UN General Assembly, perhaps even inviting the UN Secretary-General to enter into negotiations with the government of Ukraine to establish such a tribunal. However, if there is a lack of international support, it would likely be reflected in a legal watering-down of the tribunal’s powers and, thus, its format.
Mariia Lazareva is a Master of International Law Candidate at the Institute of International Relations of Taras Shevchenko National University. She specializes in European law.
Erik Kucherenko is a Master of Public Policy Candidate at Oxford University. He specializes in public international law.