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Special tribunal or hybrid tribunal? Why prosecuting Russia won’t be easy [1]

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Date: 2023-09

When the time comes, how exactly will Russia face justice for its invasion of Ukraine and the tens of thousands of war crimes it is accused of?

For now, Russia’s war shows no sign of ending. But the question of holding Russia to account in the aftermath is already proving a source of tension between Ukraine and its international allies, Ukrainian officials and experts have told openDemocracy.

Different options for tribunals on the crime of aggression (that is, the invasion itself) and Russian war crimes have been touted so far. The final decision on the format will be the result of complex negotiations by Ukraine at the international level.

So far, scenarios include courts created under the International Criminal Court (ICC) or the United Nations. And then there is the prospect of a so-called ‘hybrid’ format: a court with jurisdiction in Ukraine, another country and internationally, as well as a joint Ukrainian and international staff.

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In Ukraine’s case, a special tribunal could also be set up – a court recognised by the UN that would be dedicated to the Russian invasion.

But though that’s the Ukrainian government’s preferred option, 18 months of diplomatic work have yet to show results – likely because it could set a precedent for other states that violate the principle of territorial integrity. Not all of Ukraine’s allies want that – certainly not the US, which has its own record of crimes of aggression.

“The doctrine of international law is held hostage by global politics and geopolitics,” said Andriy Smyrnov, deputy head of the Office of the President of Ukraine, at the end of August.

“Some of our partners fear that the precedent [of a special tribunal] will be used against them, because they are also conducting military campaigns abroad. And we must speak honestly about it.”

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[1] Url: https://www.opendemocracy.net/en/odr/ukraine-russia-hybrid-tribunal-special-justice-icc-war-crimes-aggression/

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