Challenges and Models for Establishing a Special Criminal Tribunal for Russian Crimes

“The Justification for Establishing a Special Criminal Tribunal for Russian Crimes in Ukraine” was the topic of the third academic seminar held on May 28 as part of the project “Legal Analysis of Russia's Actions in Ukraine Since 2014 in the Context of Crimes of Aggression, War Crimes, and Genocide, and Legal Solutions in Neighbouring Countries Regarding the Status of Ukrainian Citizens.” The speakers—Dr. Joanna Siekiera, Dr. Volodymyr Pylypenko, and Dr. Marcin Berent—under the leadership of Dr. Edyta Krzysztofik and Dr. Iryna Kozak-Balaniuk, discussed the current legal options for holding perpetrators of Russian crimes in Ukraine accountable.

Major Obstacles to Creating a Special Criminal Tribunal for Russian Crimes in Ukraine

The establishment of a Special Criminal Tribunal for Russian crimes in Ukraine faces several significant challenges, encompassing political, legal, and practical issues.

Political and Legal Challenges

1. Requirement for an International Treaty: Such institutions typically require an international treaty between states. Ukraine, as the directly affected country, must be an obligatory participant in such a treaty.

2. Recognition of Jurisdiction: The aggressor state, in this case, Russia, is unlikely to recognize the tribunal’s jurisdiction. This issue is compounded by the potential lack of participation from other states, which could undermine the tribunal's international legitimacy.

3. United Nations Security Council Dynamics: Establishing a tribunal through the UN Security Council is complicated by the need for unanimous support from all five permanent members. Russia, as a permanent member, would veto any resolution targeting its political leadership. Similarly, China, often aligned with Russia, would likely oppose such a resolution.

Jurisdictional Issues

1. Ratification of the Rome Statute: Neither Ukraine nor Russia has ratified the Rome Statute of the International Criminal Court (ICC). Russia withdrew its signature in 2016, and Ukraine’s ratification process has been stalled due to constitutional issues.

2. Limitations of ICC Jurisdiction: The ICC can exercise jurisdiction over crimes of aggression only when the act is recognized by the UN Security Council, which is highly unlikely in the current geopolitical environment given Russia's veto power.

Practical and Procedural Challenges

1. Creation of Hybrid Tribunals: Hybrid tribunals, which combine international and domestic law, are not feasible in Ukraine due to constitutional prohibitions against extraordinary courts.

2. Political Will and International Support: There is a lack of political will among international actors to pursue legal actions against Russia, partly due to economic and political interests. This lack of support makes it difficult to garner the necessary international backing for establishing such a tribunal.

3. Immunity of Heads of State: High-ranking officials, including heads of state, enjoy immunity under international law, making it challenging to hold them accountable without significant legal and political changes.

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