Why Ukraine Opposes a Hybrid Court
Debate continues over the best way to prosecute Russia for the crime of aggression.
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Tuesday, 30 May ‘23
This week’s overview of key events and links to essential reading.
As the international community continues to explore ways to bring the Russian leadership to justice, Ukraine remains staunchly opposed to the idea of a hybrid mechanism.
Under international law, there is no way to prosecute the Russian leadership for the crime of aggression against Ukraine apart from a special tribunal.
While war crimes and crimes against humanity do fall under the jurisdiction of the International Criminal Court (ICC), it cannot prosecute the crime of aggression because neither Ukraine nor Russia have ratified the Rome Statute.
In addition, according to both international and national legislation, Ukraine cannot indict the "troika" of high-ranking Russian officials - President Vladimir Putin, Prime Minister Mikhael Mishustin and Minister of Foreign Affairs Sergei Lavrov - who enjoy personal immunity as long as they are in power.
Oleksandra Matviychuk, head of Ukraine’s Centre for Civil Liberties, noted that
"at the moment there is no international court in the world that can hold Putin and his entourage accountable for the crime of aggression. That is why it is so important to create a special tribunal for the crime of aggression and bring Putin, [Belarus president Alexander] Lukashenko, and others guilty of this crime to justice”.
What format this could take remains unclear. The European Commission proposed two options in late 2022 - either an international tribunal or a hybrid court with laws based on the Ukrainian system and procedures following international rules.
For the ICC to consider the crime of aggression, Russia must either accede to the Rome Statute, which it will not do, or the UN Security Council refers the situation to the court .
This would also be highly unlikely as Russia is a veto-wielding member of the Security Council and will veto such a move.
A hybrid mechanism - in which judicial responsibility is shared between the international community and the local state - would bypass these constraints.
In Ukraine, such a tribunal could be organised as a separate chamber in the Supreme Court on the basis of national law, with the involvement of international specialists as, for example, judges.
Alternatively, a court could be located abroad, for instance in The Hague, operating according to Ukrainian law but with judges from both Ukraine and the international community.
However, Ukraine remains opposed to this option. Officials have noted that a hybrid process would need extensive changes to the Ukrainian constitution, something impossible until the end of the state of emergency and martial law, and would still exclude the possibility of prosecuting the highest levels of the Russian leadership.
Yuriy Belousov, head of the war crimes department at the prosecutor general's office, argued that such a tribunal would do more harm than good.
He said that the history of hybrid courts of various kinds, such as in Cambodia or Sierra Leone, showed clearly that they were mostly created in countries that lacked an effective national justice system.
Although Ukraine needed support with training related to international criminal and humanitarian law - the prosecutor's general office has already opened more than 80,000 criminal proceedings for war crimes - the justice system was itself “active and powerful”.
He continued, "The creation of a hybrid tribunal seems to question the capacity of our justice system. Everything that depends on us, we are ready to do."
Supporters of the hybrid option acknowledge that Ukraine would not be able to prosecute the highest echelons of the Russian leadership while they remained in power, but could potentially pursue lower-ranking leaders.
Lawyer Gaiane Nuridzhanian noted some advantages to a hybrid system, especially given that proceedings conducted exclusively by national courts might not be considered sufficiently independent.
"The presence of an international element - a judge involved in such proceedings - can be one of the guarantees of independence, and it can be appropriate.” Nuridzhanian said. “However, according to the constitution of Ukraine, only citizens of Ukraine can administer justice, and it is prohibited by law to make changes to the constitution while martial law is in force."
Matviychuk suggested that one solution would be to expand the powers of the ICC so as to give its jurisdiction to overcome the immunities heads of states enjoy under international law. The ICC does not have the authority to arrest suspects - its jurisdiction extends only to countries that have signed and ratified the Rome Statute, which excludes Russia as well as other states including the US, India and China.
Nuridzhanian said that, given these exceptions, support for the creation of a special tribunal with the competence to judge leaders responsible for violations of international law could be limited.
"The most rational thing in this case is to improve the international criminal justice system, to reform the Rome Statute, so that the jurisdiction of the ICC in prosecuting the crime of aggression is effective, and at the same time, to fill the gap that has arisen regarding responsibility for Russian aggression by creating a special tribunal specifically for our situation,” she said.
The creation of a tribunal would be a slow process, said Oleksandr Pavlichenko, executive director of the Ukrainian Helsinki Union for Human Rights.
"Everything will depend on Ukraine's success at the front, and on the extent to which the international community will see the need for the existence of such an instrument for each specific international entity," Pavlichenko continued. “Will it be a tribunal that will deal with Russia's war in Ukraine? Will it be a permanent tribunal?”
He stressed that this new mechanism needed to be a key part of the legal infrastructure to prevent other potential aggressions. The hybrid option also risks presenting the issue as merely a bilateral conflict between Ukraine and Russia, rather than a historic moment in prosecuting the crime of aggression.
“The court should become a safeguard against future military aggressive actions by states, both at the European and global world level,” he concluded.
Some posit a third scenario as a compromise - a special tribunal regarding the crime of aggression by Russia against Ukraine that could be established and work on the basis of a multilateral international treaty, rather than a UN security treaty.
The coalition of countries (the so-called Core Group) working substantively on the parameters of such a tribunal already includes representatives of 37 countries.
In the meantime, Matviychuk stressed that despite Ukraine’s opposition to a hybrid tribunal, international support was vital given the unprecedented number of war crimes investigation Ukrainian courts were faced with.
"Investigating such a number, and even during the war, is beyond the power of even the best office of the prosecutor general in the world,” Matviychuk said. “Therefore, we need international assistance in the form of permanent involvement of the international element at the level of national investigation and national justice - as a model where national investigators work together with international investigators, national judges work together with international judges.”
