Prepare rather than wait: What should the international tribunal on Ukraine look like, and who will stand trial?

The war in Ukraine, which Russia initiated in 2014 with the occupation of Crimea and the assault on Donbass and escalated with its open invasion from Russian and Belarusian territories in 2022, has shattered the foundations of the modern world order, shattering international norms regarding respect for international law, the inviolability of borders, and the prohibition of the threat or use of force in international relations. Given the gravity of both the aggression itself and of the numerous crimes that aggression has spawned, it is evident that those responsible, including Russia’s highest military and political leadership, must face international justice. However, the specifics of such a tribunal — the legal framework it should adhere to, its location, and the individuals who should stand trial — are far from clear-cut.

The Hague is powerless

Typically, the primary recourse for bringing international malign actors to justice is the International Criminal Court (ICC) in The Hague. Indeed, the ICC is empowered to address all forms of international crimes, which encompass four categories:

• War crimes;
• Crimes against humanity;
• Genocide;
• Crimes of aggression (also known as crimes against peace).

While Ukraine is not a signatory to the ICC, it recognized the court's jurisdiction in 2015 according to the ICC Statute. Consequently, the ICC holds jurisdiction over Russian war crimes, crimes against humanity, and acts of genocide committed on Ukrainian soil. Presently, ICC judicial investigators are actively engaged in documenting and gathering evidence, including within Ukraine itself. Still, the ICC faces obstacles to the prosecution of Russia’s leadership for crimes of aggression. Amendments implemented in 2012 restrict the prosecution for such crimes solely to ICC member states — and like Ukraine, Russia is not a party to the ICC. Theoretically, the case could be referred to the ICC by the UN Security Council, but given Russia's veto power as a permanent member of this body, that prospect remains remote.

The ICC does not supplant national judicial systems but intervenes only when a state is unwilling or unable to conduct a proper investigation and prosecute international criminals. Regrettably, Russia exemplifies such a scenario. In a state governed by the rule of law, the onus lies on the state itself to prosecute its offenders. For instance, in the case of the notorious abuses at Abu Ghraib prison in Iraq perpetrated by a group of American soldiers, justice was served through the decisions of American courts, which found 12 U.S. military servicemen guilty and sentenced them to prison terms. Consequently, there was no necessity for the intervention of the International Criminal Court.