Previous International Criminal Tribunals And The Justification For Establishing An Ad-hoc Criminal Tribunal To Prosecute Russian Crimes In Ukraine

In the third year of the Russian-Ukrainian war, initiated by the aggression of the Russian Federation on 24 February 2022, its outcome remains yet unknown. The crimes committed in Ukraine by Russian troops and allied peoples also remain unpunished. This situation has not changed in recent months, despite the positive expectations from the initiative taken by The Hague-based International Criminal Court. This failure stems from the normative impotence inherent in the systemic foundations of the international judiciary itself as far as enforcement of criminal liability is concerned, as well as the unfavourable circumstantial milieu, which has prevented effective criminal prosecution in the status quo. The above claim is substantiated by the invariable state of affairs, with no real prospects at sight for breaking the impasse that undermines trust in international criminal tribunals and debilitates the authority and splendour of  the laws.

This expert opinion sets out to discuss the existing experience in the operation of international criminal tribunals and to assess whether it would be potentially relevant to establish a new, special criminal tribunal for Russian crimes in Ukraine. In view of the facts of the current international situation, this expert opinion is critical of the effects of the initiatives taken to date by the International Criminal Court, notwithstanding genuine praise for the taking of action itself within modest available options, while it cannot but emphasize the generally positive, though varied, assessment of the previously operating supranational criminal courts. As a consequence, this assessment must lead to a postulate that a new international criminal tribunal be established, which would be capable of prosecuting officials of the Russian Federation and effectively enforce the instruments of criminal response in the face of its barbarous conduct that could barely have been expected in the 21st century Europe. While we might have been naïve to think that this would never happen again, as history provides ample evidence that one must be ready for war at any time and in any place, it is true that the International Criminal Court was made anything but "tailored" to the calamities that the world saw in Bucha, Irpin, Motyzhyn or Gostomel.

This expert opinion is based on an article previously published by its author, in which he considered the relevance of establishing a new international criminal tribunal to prosecute crimes under international law committed in the territory of Ukraine in connection with the aggression of the Russian Federation on 24 February 2022. Indeed, as this article seems to have proven, it is precisely these crimes that the Russians and their allied peoples have committed during that war, including, notwithstanding the seemingly ambiguous interpretative conclusions, the crime of genocide. As in the article itself, this expert opinion adopts a general, somewhat philosophical perspective to outline the current position of the International Criminal Court against the background of the armed conflict in Ukraine. From the point of view of the choice of research methods, the formal-dogmatic approach is used here, still with the focus on a blueprint of the concept and inferable general conclusions, rather than purely dogmatic research and analyses. 

This expert opinion is produced at a time significantly later than the article referred to. The time that elapsed between the two gives an excellent basis for answering a fundamental question related to the performance of the International Criminal Court and the effectiveness of its criminal prosecution of crimes under international law. In anticipation, the assessment in this respect will be unequivocally critical, notwithstanding the understandable reasons why we have failed to stop the war in Ukraine or bring those responsible for unleashing it to account, or even to detain those covered in the arrest warrants issued by the Court more than 2.5 years ago. Spectacular declarations aside, the Court has not successfully closed any case within its jurisdiction.

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