By issuing an arrest warrant for Vladimir Putin, the International Criminal Court (ICC) has put down a marker to show that legal proceedings against the Russian president and his high-ranking officials are within its remit.
But the decision does more to muddy the waters than to clear them. Because the ICC does not have jurisdiction over the crime of aggression, Ukraine has proposed a Special Tribunal for these offenses, something suggested by the authorities immediately after the war started in February 2022. Supported by the European Union (EU) and its parliament, it is a second possible outcome. The UK and US have meanwhile suggested a hybrid court, with elements of both Ukrainian and international law.
This is far from good. Might we see, for example, Putin in the dock at the ICC in the Hague charged with the crime of kidnapping Ukrainian children, and then observe his reappearance at a second tribunal, possibly in Kyiv, charged with waging aggressive war against a neighboring state?
It is time the international community fixed this issue. The best approach would be a unified trial that would allow a full examination of Russia’s crimes in all their complexity and breadth. This would emphasize the unity of international justice, it would be legally more straightforward and it would attract the world’s attention as a new Nuremberg; an important accounting for the past.
The Nuremberg trials of 1945-49 saw Nazi leaders charged with four blocks of crimes punishable under international law and later reaffirmed in the Rome Statute: crimes against peace (the crime of aggression), war crimes, crimes against humanity, and the crime of genocide.
There is evidence of all four in Ukraine. Because the allegations have much in common and are interrelated in their corpus delicti, it would be feasible to consider them all in a single proceeding.
Consider the alternative. If Putin and his administration officials were found guilty and sentenced at one trial — whether at the ICC or the Special Tribunal — and then went on to another hearing, it would not enhance international justice, but rather the opposite.
Although formally this would concern a different crime, the second trial would imply the first trial was insufficient, its decisions were not final and different findings could reasonably be reached.
In the eyes of global public opinion, it would suggest divisions in international law, and the second set of hearings would be open to attack as a pointless, expensive, and time-consuming exercise that would change nothing. Instead of facilitating further consolidation of universal justice for the gravest crimes at the international level, such a development would compromise the entire idea.
A unified trial would also be a better option from the perspective of the procedure. It could start with the issue of jurisdiction and its overlap, continue with the evidence, its collection, study, and assessment, and finish with the jailing of anyone found guilty. As with previous international cases, ICC member states could offer their prisons for convicts.
The practical aspects of a single trial are not as difficult as they might seem, since international law is based on consensus. Special Tribunal discussions have reached the point of considering the most suitable configuration, with the prevailing opinion shifting toward the US-UK view that it should be “hybrid” — based on both Ukrainian and international jurisdictions, and deriving its legitimacy from both (although some human rights lawyers are concerned that this may be insufficient to prosecute Putin.)
This would also allow the participation of the ICC. There are two options: to establish a common chamber consisting of judges from both the ICC and the Special Tribunal or to have a single trial in front of two courts, which would then make a unified decision, with each ruling on the crimes for which they have jurisdiction.
Some will question why a Special Tribunal is needed at all since the ICC has made such a decisive first step into the case. It’s a legitimate question, and the answer is mostly a formal one (mentioned above) that there should be a separate prosecution for the crime of aggression. Alongside that, a huge amount of political capital has already been invested in the Special Tribunal’s establishment, and it has been requested by the victims of Putin’s aggression in Ukraine.
Regardless, it’s time to make a decision before the issue of jurisdiction begins to distort the path to justice.
Oleksandr Moskalenko is an academic researcher focusing on European politics. He is an In-resident Fellow at the Center for European Policy Analysis (CEPA, Washington, DC). He is a Ph.D. in European Law .
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
