Law students and young lawyers in Ukraine are filing for JURIST on developments and legal issues arising as the country defends itself against Russian invasion. Here, JURIST Ukraine Chief Correspondent Anna Tymoshenko, a law student at Kyiv-Mohyla Academy, says that for a variety of reasons, the International Criminal Court in The Hague is not the appropriate tribunal to adjudicate Russian war crimes in Ukraine. Instead, a separate special international tribunal should be established.

One of the most encourging news reports of recent weeks came at the end of April when the Parliamentary Assembly of the Council of Europe announced its support for establishing a special tribunal on Russian aggression in Ukraine. Among other things, Resolution 2436 (2022) proposes that:

• Russia’s top military and political leaders are the defendants;
• the definition of “crime of aggression” should be taken from Article 8-bis of the Rome Statute;
• the tribunal should have the right to issue international arrest warrants, which may not be limited to functional immunity, including immunity of the heads of state.

This is indeed an important step towards gaining justice for Ukraine and punishment for the crimes of Russian individuals. The creation of such tribunal is essential due to the lack of other effective platforms in this particular case.

Although the International Criminal Court (ICC) has now received referrals from 43 countries (an unprecedented number) on the Ukraine invasion and has already begun its investigation, the buzz surrounding it is much brighter than the actual possible outcome. There are numerous issues here. First, the ICC does not currently have territorial jurisdiction over the situation because Ukraine only submitted two declarations of acceptance of its jurisdiction in 2015 with respect to specific crimes and specific territory (namely, Crimea and Donbass). The Court’s limitations can barely do justice to the terror that Ukrainians are currently experiencing. This issue can admittedly be solved with one more declarationbut there are more problems. To wit, second, it is critical to hold Russian leaders accountable for the crime of aggression, but the ICC has a complicated procedure for invoking its jurisdiction over this crime, and even a Security Council referral would not solve the problem because Russia would obviously block it. Third, using the ICC’s tools, there is little to no chance of obtaining custody of the people at the root of this hell on Earth – aka Russian political leaders. Russia will never simply ‘give away’ Putin, Shoigu, Lavrov, and the rest of the company, so the only hope is for other countries to ‘catch him.’

According to Article 86 of the Rome Statute, states must ‘cooperate fully with the Court in its investigation and prosecution of crimes within the Court’s jurisdiction’. In practice, however, such a provision does not compel countries to devote all of their resources to the implementation of international justice and the functioning of the Court. Member States have authority and resources that are directed first to their own interests and then to supranational bodies. For example, states may sometimes resort to luring perpetrators in order to prosecute an individual without jeopardizing another state’s sovereignty, and by their own means and for their own ends. Meanwhile, why a state would organize a difficult operation and spend enormous resources while endangering the lives of its soldiers for the ICC? Plus, national laws and judicial systems can grant varying degrees of freedom to law enforcement. For example, the United States can apply the Ker-Frisbie doctrine to prosecute people who have been illegally dragged into the country. However, such a mechanism is not an option for the ICC because it must adhere to the principles and norms of international criminal law at every stage of the process, from gaining custody to enforcing a sentence.

There is an interesting precedent in the ICTY, namely the Nikolic case, where the judges denied the motion for dismissal of the case due to the abduction of the perpetrator from his country, arguing that dismissal cannot be the remedy for these violations when dealing with someone charged with the most heinous crimes known to humankind, crimes against humanity. However, the ICTY’s authority and jurisdiction were far more advanced, and the operation was carried out by UN forces, making it significantly different from the ICC mechanism. As a result, the ICC lacks the power of its tribunals-predecessors.

Furthermore, the number of states that have ratified the Rome Statute is still quite frustrating. International justice will never be possible without the participation of the majority of the world, particularly those countries with significant influence in international political and legal affairs. For example, three of the five permanent members of the UN Security Council, namely the United States, Russia, and China, did not sign on to the treaty.

It is difficult to accept, but the ICC cannot fulfill its role as a truly universal criminal court and an effective mechanism to combat impunity for the time being. With the number of crimes against humanity and war crimes committed by Russians increasing by the day, the establishment of a separate tribunal appears to be the only effective mechanism, and the only hope for justice for Ukraine.