Ad Hoc International Tribunal Least Problematic Way to Prosecute Russian Aggression, Tsybulenko and Rinta-Pollari Say

Paul Goble

            Staunton, Dec. 24 – Political leaders and legal experts around the world are debating what forum would be the most useful for trying Russian leaders for engaging in aggression in Ukraine. Two leading specialists say that the least problematic way would be the creation of an ad hoc international tribunal.

            Yevhen Tsybulenko, a Ukrainian scholar, and Henna Rinta-Pollari, a Finnish jurist, make this argument in a new article, “Legal Challenges in Prosecuting the Crime of Aggression in the Russo-Ukrainian War,” Review of Central and East European Law, 48 (3-4) (2023): 319-350 at https://brill.com/view/journals/rela/48/3-4/article-p319_003.xml.

            They reach that conclusion after examining the problems involved with other proposed solutions and suggest that while an ad hoc arrangement is not ideal, it is almost certainly on balance the best one.

            Tsybulenko and Rina-Pollari note that “neither Russia nor Ukraine are Member States of the Rome Statute, which established the International Criminal Court,” and thus have not committed themselves to having a crime like aggression transferred to its jurisdiction for final judgment.

            Creating nationally based courts also presents problems. On the one hand, there is the question of immunity, something especially troubling because “the crime of aggression … is regarded to be a leadership crime.” And on the other, the Ukrainian constitution explicitly prohibits the adoption of such courts.

            An international ad hoc tribunal would avoid these problems and could be established “either through a treaty signed by the United Nations and Ukraine on the basis of a referral from the United Nations General Assembly and the United Nations Secretary-General or a multilateral treaty between Ukraine and other states supported by the United Nations.”

            They argue that “despite the fact that none of the analyzed methods of prosecuting the crime are perfect, the most appropriate approach in the context of the Russo-Ukrainian war would be to establish an international ad hoc tribunal” either through a UN treaty or a multilateral treaty between Ukraine and other states with the former the more practical.