On 24 February 2022 Russia, aided by Belarus, continued its devastating military offensive in Ukraine. The war there continues unabated. The invasion, occupation, bombardment, and attacks on Ukraine, among other aggressive acts, are some of the most devastating and widespread in Europe since the Second World War. In February 2022, Ukraine and its partners urgently called for the prosecution of Russian and Belarussian leaders, among them President Vladimir Putin, for the crime of aggression.

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That call, almost two years on, is now supported by a “Core Group” of 40 states who have been in talks on creating a Special Tribunal to try senior leaders for this crime. The Netherlands have offered to host such a tribunal.

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The key challenge, still unresolved, is the model that governments can, and should, support. The choice being presented is between a strictly international tribunal or a largely domestic hybrid (“internationalized”) model.

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There is concern, now emanating from a large part of the Core Group countries, that a hybrid model, which would essentially be a Ukrainian domestic court in The Hague, is not workable because it would:

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• postpone and possibly deny altogether the prospects of accountability for President Putin, President Lukashenko, Sergey Lavrov, and other senior leaders, as they would enjoy personal immunities before a domesticated hybrid tribunal;

• delay the establishment of the tribunal for several years because of constitutional changes required in Ukraine once martial law ends;

• deny Ukraine international legitimacy in its anti-imperial struggle against Russian colonial domination.

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On 20 January 2023, the UK backed the idea of a Special Tribunal and tentatively suggested one possible model was a ‘hybrid model’. On 9 May 2023, the Parliamentary Under-Secretary of State for the FCDO (Rt Hon’ David Rutley) stated, before a cross-party selection of senior MPs at Westminster Hall, that the Government had not formed a definitive view and that all options were on the table.

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Initial backing by some States for a largely domestic, hybrid tribunal was formulated on two premises:

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• That it would diminish its precedent value and preserve the idea that only the UN Security Council (UNSC) is authorised to create international courts or tribunals.

• This is not the case as the International Criminal Court (ICC) itself is a treaty-based organisation created outside the auspices of the UNSC, and other successful international tribunals have been created upon recommendation by the UN General Assembly or under Chapter 6 of the UN Charter rather than by the UNSC under Chapter 7 or under the auspices of regional organisations such as the African Union or European Union.

• That a future tribunal will preserve personal immunities for serving heads of state, heads of government and foreign ministers.

• This belief stems from an erroneous belief that only the UNSC can disapply personal immunities. We know that is not the case given the jurisprudence of the International Court of Justice, the ICC, and the Special Court for Sierra Leone that immunities can and should be dis-applied for atrocity crimes being tried before an international court or tribunal.

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We see clear merit for a strictly international tribunal or a highly internationalised tribunal, of some form, having key international features: an international agreement and statute (with the UN Secretary General and/or through multi-lateral treaty); reference to international law for the purposes of jurisdiction and applicable law; significant international components (such as prosecutors, judges, and venue); and firm international backing, where possible, from international and/or regional organisations.

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We believe this would the best hope of disapplying relevant immunities and giving a tribunal full legitimacy and complement the ongoing work of the ICC (in investigating alleged acts of genocide, war crimes and crimes against humanity committed on the territory of Ukraine).

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Several States’ position on this remains unclear and there is a deadlock in discussions among them. As such, States should clearly highlight whether they distance themselves from the hybrid model, whether they endorse a strictly international model, or propose a workable third alternative.

 

We call on international lawyers and experts to continue exploring how the future tribunal will be able to overcome the immunities of the "Troika": the President, Prime Minister and Foreign Minister of Russia and try them for the crime of aggression being committed against Ukraine.

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A strictly international tribunal, or a workable highly-internationalised third model, would signal the disregard in which aggressor states are held by the international community, it would ensure an independent and impartial tribunal, it would encourage other regions to join the effort, and it would genuinely signal a long-term commitment to Ukraine's and its neighbours call to be free of imperial conquest.

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Given its global influence and historic leadership on human rights issues, the UK could play a vital role in further galvanising international backing for the proposal.

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