Prosecution of Putin for war on Ukraine will require hybrid tribunal of The Hague

While Volodymyr Zelenskiy’s rapid visit to the International Criminal Court (ICC) last Thursday appeared primarily motivational, there were some coded indicators of the shape of the tribunal increasingly favoured by the US and EU to prosecute Russian aggression.

The ICC issued arrest warrants for Vladimir Putin last month and its investigators have been gathering evidence of war crimes in Ukraine since he began his all-out campaign in February 2022 to “demilitarise and denazify” the country, as he apparently sees it.

Since then, however, analysis of the type of tribunal needed to establish accountability for the war has continued to focus on the view that it must primarily be one capable of prosecuting the “leadership crime” of aggression reserved for those – such as Putin – who “devise state policies”.

Aggression as a crime was first defined during the second World War when the Allies met in London in 1941 to draft a declaration of war crimes, which led to the creation of an International Military Tribunal, and, in turn, to the post-war Nuremburg trials where aggression was first prosecuted.

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The ICC’s problem in the Ukrainian context is that its jurisdiction to pursue aggression as a crime under international law extends only to its own member states – in other words, states that signed the Rome Statute that established the court – or states that have agreed to the court’s jurisdiction.

[ Arrest warrant for Putin for war crimes in Ukraine welcomed in UK and US ]

Ukraine is among the latter. Russia, however, does not recognise the court. Hence the view that, legally, the ICC cannot prosecute Russian aggression in the case of Ukraine.

So while Zelenskiy’s observations in The Hague may have seemed vague at times, he was in fact being quite specific about what was needed when he called for a “new international tribunal” to combat “the crime of aggression”.

“We are going to set up a specific tribunal… to show that these people are not untouchables,” he said, again indicating a hybrid tribunal, where, as he put it, the invasion of Ukraine itself should be seen as “the primary offence” committed by Moscow.

The “hybrid” nature of the tribunal will also be important. Again, the view among legal experts is that a tribunal “rooted in Ukraine’s own domestic judicial system” is possible and therefore desirable.

It would be “hybrid” in that it would combine that domestic Ukrainian footing with the key tenets of international law, including the capacity to prosecute aggression.

[ Kyiv calls for international response to apparent beheading of Ukrainian soldiers by Russians ]

There is also a view that the court should be located outside Ukraine – in The Hague or elsewhere – at least at first, for safety’s sake and “to reinforce Ukraine’s desired European orientation”, though this remains an unresolved detail.

Fundamentally, however, the view in Washington as recently as a week ago, according to Beth van Schaak, the US state department’s ambassador for global criminal justice, was that a hybrid tribunal would “maximise our chances of achieving meaningful accountability”.

As van Schaak sees it: “This kind of model – an internationalised national court – will facilitate broader cross-regional international support, and demonstrate Ukraine’s leadership in ensuring accountability for the crime of aggression.”

Zelenskiy’s mission is to ensure it happens.