Last month, the International Center for the Prosecution of the Crime of Aggression (ICPA) against Ukraine opened its doors in The Hague. The name is slightly misleading in that the center cannot prosecute Russia’s aggression against Ukraine. In reality, its mandate is to “agree on a common investigative and prosecution strategy” that will “contribute to any future prosecutions of the crime of aggression, irrespective of the jurisdiction before which these will be brought.” On July 17, State representatives and civil society organizations meeting in New York on the 25th anniversary of the Rome Statute discussed the latter point: which jurisdiction will actually hold aggression trials of the Russian leadership? Echoing divisions between Western and Eastern European States, remarks by some State officials, including the German foreign minister, conveyed a latent frustration about their inability to agree on the type of tribunal that should prosecute Vladimir Putin and his inner circle. In a nutshell, Western States – led by Germany and the United States – support a “hybrid” tribunal, while Ukraine and a “Core Group” of Friends for Accountability, notably comprising several former victim States of Russian empire, advocate an international tribunal, created through a United Nations General Assembly resolution. It may seem like a technical legal quarrel or branding exercise, but this divergence of opinion about the nature of the proposed tribunal masks deeper questions about the rationales and legitimacy of international criminal law.
While the ongoing negotiations in Kyiv, New York, and beyond have generated copious commentary, the regional context of Russia’s invasion is often overlooked or misunderstood, with many analysts taking an unduly negative, glass “half empty” view on the proposed tribunal. By drawing on a post-colonial lens, I offer a more positive “half full” perspective that illuminates the regional stakes of accountability for Russian imperialism and deepens the conversation about “double standards” in international criminal law (I develop this discussion more fully in a forthcoming Yale Journal of International Law article). Despite a reductive tendency to analyze global divisions over aggression trials through a “West” versus “Global South” binary, the longer-term stakes of accountability for Ukraine are better illuminated by how people from smaller and weaker States, in both the “Global South” and the “Global East,” can harness the full-scale invasion to transcend geo-political rivalries and unleash the counter-hegemonic potential of international law going forward.
Tracing Global Divisions over Aggression
Russia’s full-scale invasion of Ukraine has prompted important conversations about the crime of aggression. Unlike the investigations of genocide, crimes against humanity and war crimes underway before the International Criminal Court (ICC) and various national courts, there is currently no supranational tribunal that can prosecute the Russian leadership for its invasion of Ukraine and annexations of territory. Although Russian aggression has been ongoing for more than nine years in Ukraine, since the capture of Crimea and the invasion of Ukraine’s Donbas region (and even longer in, for instance, Georgia), some international actors have only belatedly begun discussions about prosecuting Putin and his inner circle. Yet, while the delayed response to Russia’s multiple aggressions has highlighted a blind spot in international criminal law, there has been no unanimity on how to remedy the accountability gap. Some argue for an ad hoc Special Tribunal for Aggression against Ukraine, others for amendments to the Rome Statute’s flawed Kampala jurisdictional regime that prevents ICC investigations of aggression against Ukraine, yet others suggest that aggression trials against Russia should only proceed if other cases of aggression, notably committed by Western powers, are also prosecuted. For instance, Luis Moreno Ocampo, the former ICC Prosecutor, has critiqued the idea of a Ukraine-specific tribunal, which “promotes nothing short of selective justice,” while Christine van den Wyngaert, a former ICC judge, questions “whether the remedy [of a special tribunal] is worse than the disease [of aggression]” writing:
Unlike the [ICTY], which had the support of the entire international community when it was set up, it is to be expected that support for the Putin tribunal in the UN would be much more limited, emanating mainly from Western countries, led by the US… Because the US, among others, would finance a Putin tribunal and would be part of it, the question quickly arises: what about Iraq, Afghanistan, eastern Congo, Eritrea and other hotbeds of conflict? Wouldn’t such a tribunal tap into Putin’s narrative? Doesn’t it risk antagonizing (part of) the Global South?
In recent weeks, momentum for a Ukraine-specific aggression tribunal seems to have reached an impasse. Notwithstanding the creation of the Hague-based ICPA, supporters of aggression trials seem split on the way forward, specifically whether to create an “international” or “hybrid” tribunal. Both Germany and the United States have advocated the “hybrid” route, with U.S. Ambassador-at-Large for Global Criminal Justice Beth van Schaack, arguing last year that “[w]e cannot overlook the growing perception by many states, especially from the Global South, that the concerted response to Ukraine is a stark exception.” Echoing fault lines among regional blocs, in May, Ukrainian President Volodomyr Zelenskyy announced that his government would “work without any hybrid formats,” noting that Ukraine rejected Western-imposed half-baked solutions like the 2014-15 Minsk agreements, which produced only a “hybrid peace.” As he emphasized, Ukraine does not want “some compromise that will allow politicians to say that the case is allegedly done… But a true, full-fledged tribunal.”
As these divergent statements show, opinions about the rationales, desirability, and institutional design of an aggression tribunal vary considerably. Before applying a post-colonial lens to evaluate the dominant narratives and arguments for and against aggression trials, it is necessary to briefly explain how post-colonialism applies to Eastern Europe and the wider “Global East.”
Post-Colonialism in Eastern Europe and the “Global East”
Post-colonialism, a critical approach to the study of international law’s past and continuing role in perpetuating inequalities in the global order, is reflexively associated with (Western) European imperialism in Africa, the Americas, or Asia. However, scholars also apply this framework to other parts of the world, including Eastern Europe, where millions of people have experienced centuries of violence and exploitation at the hands of both Western (e.g. German) and Eastern (e.g. Russian) empires. Yet, while Eastern Europe remains a separate regional grouping at the United Nations, distinct from the Western group, the post-2022 international (legal) debates over Russia’s aggression, including the heated arguments over the aggression tribunal, reveal time and again how Ukraine’s complex liminal and post-colonial status is often misunderstood.
This is not surprising, as Ukraine and Eastern Europe occupy a contested space within the international (legal) imagination. As Olesya Khromenyuk, a Ukrainian historian, explained in the New York Times last year, most people “didn’t imagine Ukraine at all” before February 2022 and many still conjure up “caricatures based not on knowledge of the country or the people who inhabit it but on mythology.” As a country from the former Soviet bloc and the Second World – distinct from the First (Western) and Third (non-Western) World – Ukraine straddles boundaries between Europe and Asia, East and West, and Global North and South. Few realize that Europe’s poorest country is poorer than some countries conventionally deemed “southern,” for instance Colombia, Thailand or Costa Rica. In fact, Eastern Europe is best understood as part of the wider “Global East,” which scholar Martin Müller defines as “all those societies… too rich to be in the South, too poor to be in the North… suspended somewhere in the shadows… not quite belonging to either.” Ukraine is also a post-colonial society whose right to exist has been denied systematically by various empires.
As I and others from the region have argued (see here, here, here and here), reductionist mental maps of Ukraine and Eastern Europe are not without consequences for international debates, which tend to be West-centric in nature and discount histories of non-Western imperialism. Yet, while Eastern Europe is considered “too eastern to be western, too European to be southern” and scholars from the region are excluded from mainstream commentary, my forthcoming article emphasizes the arguments of local stakeholders that challenge the dominant narratives related to the aggression tribunal that have emerged since February 2022, including to counter “west(s)plaining.” Drawing on a post-colonial perspective, I draw attention to the agency of Ukrainians and other victims of Russian imperialism to highlight three points (1) the importance of aggression trials for Eastern Europe; (2) to add nuance to one-dimensional West-centric critiques of an aggression tribunal’s selectivity, and (3) to better understand why Ukraine and Eastern European countries have pushed for international – not hybrid – aggression trials.
Undermining the ICC or Resurrecting the Promise of Aggression?
The ICC does not currently have jurisdiction to prosecute the crime of aggression in Ukraine, and it is generally acknowledged that this cannot be changed anytime soon (amendment of the Kampala jurisdictional regime is under discussion, but diplomats agree such a campaign will take too long for it to matter for the current war in Ukraine). Yet, despite that existing gap, critics object that a new ad hoc tribunal for only Ukraine would compete with, distract resources from, and ultimately undermine the ICC. This argument has two facets.
A New Aggression Tribunal and the ICC
One concern is that ad hoc arrangements in international criminal law undermine the long-term universal aspirations of the permanent ICC, which was created in part to overcome the ad hoc nature of the Rwanda and former Yugoslav tribunals. As law professors Claus Kress, Stephan Hobe, and Angelika Nußberger note, ‘[i]t cannot be doubted that a Special Tribunal falls behind the most stringent rule of law standards and that many national constitutions rule out the establishment of a tribunal ex post facto [after the fact].” France and Germany have expressed concerns that the aggression tribunal could undermine the ICC, and ICC Prosecutor Karim Khan has signaled opposition to the idea, arguing that “[w]e should avoid fragmentation, and instead work on consolidation.”
However, there are weighty counterarguments to consider. Taking a longer-term perspective, the former ICC President, Chile Eboe-Osuji, emphasizes that, while the post-World War II criminal tribunals at Nuremberg and Tokyo were deemed “flawed,” they are now “celebrated” as “worthy precedents,” and “[y]ears from now, [an aggression tribunal] would have correctly earned its place as one of the building blocks in the never-ending construction project of international law.” Equally important, critiques that the aggression tribunal would be ad hoc, while idealizing the ICC’s universality, downplay the latter’s selectivity problems. As Astrid Reisinger-Coracini explains, there is reason to believe that, if the ICC could exercise jurisdiction over aggression, the same selectivity criticisms that have accompanied the ICC’s operations elsewhere would be present in Ukraine. After all, South African politicians have reacted negatively to an ICC arrest warrant for the Russian president, which strongly suggests the same critiques would be leveled at the ICC if aggression were within Khan’s remit.
A second and perhaps weightier objection to a standalone aggression tribunal is that, despite the aggression gap, the ICC has jurisdiction to prosecute the same people as an aggression tribunal, albeit for war crimes, crimes against humanity, and genocide. These concerns became more than just hypothetical after the ICC issued an arrest warrant for Putin in March. While many scholars have countered this critique, explaining the different goals and benefits of accountability for aggression (see e.g., here and here), it is the regional context that best explains why Ukraine and other Eastern European States have pushed so hard for an aggression tribunal. Although lawyers have focused on Russia’s actions after February 2022, the invasion has a deeper meaning in a region scarred by Russia’s imperial ambitions, limited not only to Crimea in 2014 or Georgia in 2008, but stretching as far back as the Russian Empire’s 18th century partitions of Poland and numerous wars of conquest in between, including in Eastern Europe and Central Asia. This longer term dimension of Russia’s invasion is widely recognized among local populations, as is the deterrent value of such prosecutions. As Oleksandra Maatvichuk, a 2022 Nobel Peace Prize laureate, observes:
Russia is a modern-day empire. The imprisoned peoples of Belarus, Chechnya, Dagestan, Tatarstan, Yakutiia, and others endure forced russification, the expropriation of natural resources, and prohibitions on their own language and culture. They are forced to give up their identity. Empire has a center, but it has no borders. Empire always seeks to expand. If Russia is not stopped in Ukraine, it will go further.
While an aggression tribunal would not have jurisdiction to address centuries of Russian conquest and impunity in Eastern Europe, the tribunal’s symbolic anti-imperial dimension, and its potential to deter Russia’s aggressive foreign policy, is not lost on States (or scholars) from the region. As aggression tribunal supporters observed in January, “[e]nsuring accountability for the crime of aggression committed against Ukraine would signal that waging blatantly unlawful and colonizing wars will not go unpunished – whether in Ukraine or elsewhere.”
The Contested Memory of Nuremberg in Eastern Europe
Another important dimension of the tribunal debate relates to the contested memory of the Nuremberg trials in Eastern Europe. Westerners remember Nuremberg primarily as a recognition of Nazi criminality, and a vindication of the Allies’ “righteous cause” in World War II. Of course, critiques of Nuremberg’s “victors justice” are well known, but Eastern European memory of the tribunal is more complicated. Nuremberg didn’t just whitewash mass crimes committed against Lithuanians, Poles, and other people from the region, it also bestowed legitimacy on the Soviet Union as a “liberator” from Nazi rule while re-writing history by eliding that World War II began because of Germany and the Soviet Union’s joint invasion and partition of Poland. Not only is this history still alive in Eastern Europe, which emerged from Soviet imperial rule just thirty years ago, but it explains why Nuremberg has functioned as a cognitive justification for the necessity of aggression trials. While this point is often misunderstood, Nuremberg’s symbolism lies less in its catalytic role for international criminal law, and more in its pernicious legacy for the Russian neo-imperial psyche and fantasies of a “Russkiy mir” (a regional sphere of influence), which foment the ongoing war in Ukraine. As Francine Hirsch, a historian of Nuremberg, explains:
In the United States, the [Second World] war and Nuremberg were remembered as triumphs of Western leadership and liberal values. In the Soviet Union, Nuremberg symbolized the Soviet victory over German fascism and the emergence of the USSR as a world power… Putin has been invoking Nuremberg to rally the Russian people for the war against Ukraine. He has promulgated the lie that Ukraine is being run by Nazis—and has repeatedly made a false connection between Ukrainian nationalist organizations that collaborated with the Germans during World War II and Ukraine’s leaders today. Since the invasion… he has defined his goal as Ukraine’s “de-Nazification.”
It is this distorted legacy of Nuremberg that fuels Ukraine’s demands for an analogous and modern attempt at justice that might set the historical record straight. As Kateryna Busol, a Ukrainian lawyer, emphasizes, “the symbolism of Nuremberg boils down not to a strict historical analogy” but “the expression of an aspiration for an extraordinary and specialised nature of a potential forum.” Because the original Nuremberg verdict shaped a historical narrative that still resonates so deeply in the post-Soviet space, Ukraine intends aggression trials “not just to render convictions, but, first and foremost, to use fact, law and due process to build an argumentative, intricate and multifaceted narrative for future generations, especially for Russian society,” including “how a delirious neo-colonial idea of a ‘gathering of historic Russian lands’” shapes events in the region to this day.
This post-colonial regional context explains why Eastern Europeans have championed an aggression tribunal to reckon with Nuremberg’s legacy, while ideally grounding its legitimacy in a U.N. General Assembly resolution. What may be less obvious, though, is that a second Nuremberg-like proceeding would address both Russia’s memory of World War II, and the “Global South”’s reductionist understanding of the Soviet Union as an anti-imperial force. This raises the question of Asia, Africa, and Latin America’s positions on the war in Ukraine and the aggression tribunal.
“Western” Double Standards and “Global South” Resistance: What about the Small States in the “Global East”?
Notwithstanding Eastern European nations’ interest in aggression trials, there has been less support for aggression trials in other parts of the world. Distance and other more pressing problems partly explain Asia and Latin America’s passivity, but ambivalence about an aggression tribunal also dovetails with critiques of “Western” double standards, which are not limited to international criminal law. Focusing on Africa, law professor Sâ Benjamin Traoré explains that “the perception is that the western zealotry over Ukraine – and not for other situations of blatant violation of international law – is troubling, shocking and nothing short of hypocrisy and double standards in international politics.”
Echoing this critique, debates over the aggression tribunal have repeatedly involved allegations of Western hypocrisy and double standards. According to Kevin Jon Heller, “the war in Iraq [did not] lead to high-profile calls for creating a Special Tribunal for the Punishment of the Crime of Aggression Against Iraq… [so] to create a Special Tribunal now for Russia’s invasion of Ukraine would… send a message that the ‘international community’ cares about some crimes of aggression more than others.” Reed Brody emphasizes that “[f]or Western countries to create a special tribunal to prosecute a crime by Russian and Belarusian leaders for which they are unwilling to submit their own leaders… reinforc[es] a perception that international justice only kicks in against ‘enemies or outcasts.’” The crux of this critique is the moral standing of the tribunal’s sponsors and whether they come to the enterprise “with clean hands,” with critics observing (correctly) that an ad hoc tribunal is needed only because Western powers – specifically the United States, U.K. and France – lobbied for the Rome Statute’s two-track jurisdictional regime that now makes it impossible to prosecute aggression on Ukrainian soil.
And yet the “double standards” critique, pushed primarily by Western scholars (and, in a twist of irony, increasingly by some Western States), overlooks many nuances and counterpoints, ranging from the commonsense observation that “the revival of the crime of aggression has to begin somewhere” to the fact that some “Global South” representatives support an aggression tribunal and its catalytic, forward-looking potential. The critique also reveals various implicit assumptions about the global order and the international law-making process. For one, critics have tended to emphasize the pro-tribunal views of well-known Western figures like former U.K. Prime Minister Gordon Brown or prominent international lawyer Philippe Sands, while ignoring the Eastern European States and thinkers advocating hardest for aggression trials. Simplistic narratives about an aggression tribunal as a “Western” or “Global North” project have cascaded through commentary, too easily conflating academic and celebrity advocacy with official State positions, while also getting the facts wrong on important issues, especially that Western powers, until recently, opposed the tribunal precisely because it could expose them to future prosecution. As a result, one unintended effect of this West-centric commentary on the aggression tribunal has been its backward-looking emphasis on the double standards of Western powers at (1) the expense of Ukrainian agency, (2) the counter-hegemonic potential of sanctioning Russia’s leaders, and (3) the precedent this sets for post-colonial States in other parts of the world.
In that regard, perhaps the most curious aspect of the aggression debate is the reductionist “West” v. “Global South” register within which arguments and counterarguments appear. Despite suggestions that States in the Global South are reluctant to support prosecutions of Putin, there are few, if any, statements against an aggression tribunal by States that could be labeled “Global South,” while there are three non-Western States among the (Core) Group of Friends for Accountability. More importantly, an overly capacious reading of who belongs to the “West” ignores many European States’ principled positions on aggression, while romanticizing the “Global South”’s adherence to norms of non-aggression.
It is worth emphasizing that many European States did not support the Kampala amendments that undermine the ICC’s ability to act in Ukraine today and that creating an aggression tribunal seeks to overcome. By the same token, overstating “Western” support for a new tribunal conveniently overlooks how Western powers’ ambivalence toward Ukraine is a proximate cause of this war and that the same “supportive” Western States’ reluctance to pursue aggression trials after 2014 may have facilitated Russia’s full-scale invasion in 2022 and – if left unchecked – may have further negative effects down the line.
None of this is to downplay the real and justified resentment of Western powers’ interventions in Africa or the Middle East, including concerns about Western impunity for colonialism in the “Global South.” But this does not excuse a romanticized reading of some States’ imperfect track record and contested positions on aggression. For instance, critics of Western interventionism correctly note that the African Union’s Malabo Protocol, including its criminalization of aggression, was born of Africans’ frustration with how the Rome Statute marginalizes certain forms of (economic) criminality that may implicate powerful Western actors. Yet the fact remains that, aside from rhetorical denunciations of Western hypocrisy, the same African leaders codified immunities for heads of State in Malabo, which makes it impossible to prosecute both African and Western heads of State, including for acts of aggression. What does this tell us about “Global South” concern with double standards and impunity for aggression? For all the talk of Iraq, George W. Bush or Tony Blair, the revamped African Court of Justice and Human Rights, even if it had jurisdiction, would not be able to prosecute such individuals, nor could it ever prosecute high ranking NATO officials for intervening in situations like Libya.
These enforcement gaps do not diminish Western violations, but Malabo’s immunity rules – and the paucity of human rights and criminal law enforcement institutions in the Middle East or Asia – should be troubling for anyone genuinely concerned about double standards. After all, many cases of putative aggression – for instance, Ugandan or Rwandan uses of force in the Democratic Republic of the Congo (DRC), Turkey’s involvement in Syria, China’s expansion into the South China Sea and beyond, or Morocco’s occupation of Western Sahara – are intra-South violations of international law. As a result, one risk of a one-dimensional West-centric double standards critique is that, rather than looking for commonalities between the predicaments of some (Eastern) European and non-Western peoples, especially those from smaller and weaker States that have the most to gain from prosecuting aggression, critics endlessly reiterate denunciations of Western hypocrisy, while effectively whitewashing the ambitions of “Global South” hegemons like China (in the South China sea) or India (against Pakistan) that put these States at odds with the aspirations of many of their “southern” neighbors.
Equally problematic in this regard are recurrent allegations of “disparities of attention” implying that Western actors “privilege” Ukrainians but ignore suffering elsewhere. Brody, for instance, suggests that mobilization for the issue of Ukraine is “precisely the kind of overwhelming judicial response that all mass atrocities should elicit” and that “[v]ictims in places like Ethiopia and Yemen can only hope they will now get the same attention, not to mention Palestinians.” Such criticisms may have some merit in areas like migration, but they discount that international criminal law has focused overwhelmingly on crimes in the Global South, so much so that this “disparity of attention” provoked African backlash against the ICC. As I argue in a recent article in the Leiden Journal of International Law, what is striking about this recent iteration of the “double standards” critique is that few critics portray Western-backed ad hoc tribunals in other regions as evidence of hypocrisy, even though they all confront(ed) the same issues of selectivity. Ad hoc international and hybrid tribunals have been set up with support from Western powers primarily in “Global South” countries, from Rwanda, Cambodia and Sierra Leone to Chad, the Central African Republic and Colombia, and at least three ad hoc proposals are now under discussion for South Sudan, Liberia, and the DRC. It is also worth recalling that for many years Western (and global) attention focused overwhelmingly on Syria, which included proposals for an ad hoc tribunal. Strangely enough, few of the myriad articles and blog posts over the past ten years suggested that the world was “privileging” Syrians at the expense of Liberians or the Rohingya, which again speaks to short term memory and reductionist imaginaries that structure (legal) discourse related to Ukraine.
This is not to suggest that the (current) scale of support for Ukraine does not deserve critical analysis, including valid concerns about earmarked funding for ICC investigations. But critics denouncing an aggression tribunal as “Western double standards” should reflect on a principled consequence of their argument, which is that Western powers should play no role in supporting ad hoc initiatives, including in the “Global South,” lest “Western” hypocrisy poison the pursuit of justice. To take one recent example, human rights lawyer Daniel Levine-Spound leverages the Ukraine precedent to advocate aggression trials of Rwandan leaders, eliding that the real obstacle to accountability for Congolese victims is tacit African support for Paul Kagame and glossing over that principled opposition to double standards would mean Western States, including those complicit in colonialism in the Great Lakes, may not come to the justice enterprise without clean hands – that is unless Western crimes are also addressed in countries like Afghanistan or Libya. To be sure, such arguments against Western hypocrisy may have the merit of absolute and principled consistency, but they risk throwing the baby out with the bathwater, while law professor Tom Dannenbaum reminds us that “the marginalization of aggression has itself been understood as primarily benefitting the powerful.”
Not only does absolutist opposition to double standards fail to persuade; importantly, a better framing of the longer-term prospects of aggression is possible. A revival of aggression in Ukraine can be in the interest of (some) African, Latin American, Middle Eastern, Asian, and European States, who – bar the U.K., France and United States – have consistently spearheaded efforts to criminalize aggression. In fact, from the perspective of weaker and smaller States from the “Global South” and “Global East,” there is nothing extraordinary about a revival of aggression in Ukraine, as it reflects long-standing advocacy on these issues from marginalized States in the global order. As Busol reminds us, “[t]he Kremlin’s current encroachment on Ukraine is inherently neo-colonial.” Others emphasize how accountability in and for Ukraine also helps victims of Russian violence in Syria, Libya or Mali; as lawyer Ibrahim Olabi observes, “[w]hile some called out double standards, I personally am happy with how the world responded to Ukraine for a number of reasons, including that it has exposed a big perpetrator that we have a problem with in Syria.” It is precisely in this spirit that aggression tribunal advocates increasingly support a two-track approach to punishing aggression: coupling a tribunal for Ukraine with amendments to the Rome Statute that would remove the ICC’s jurisdictional limitations for the future. For all the talk of double standards, the war in Ukraine may yet benefit marginalized peoples in both the “Global South” and the “Global East.”
What Type of Tribunal? Unpacking the “International” v. “Hybrid” Debate
In addition to the question of whether to establish a special tribunal, there is the issue of how to prosecute aggression, or what type of tribunal is best placed to hold the Russian leadership to account. As noted previously, proponents of a “hybrid” and “international” tribunal (strictly speaking, these terms can be interpreted in different ways) seem increasingly divided, due to several overlapping questions of legality, legitimacy, and realpolitik.
In a narrow legal sense, the debate revolves around immunities, with advocates of an “international” tribunal relying on international jurisprudence to argue that an international – as opposed to a “hybrid” – tribunal may override such immunities, indicting and eventually prosecuting the head of State, the head of government, and the foreign minister of Russia. By contrast, a “hybrid” tribunal based in Ukraine’s domestic jurisdiction would not have this power (though there may be creative ways around this difficulty).
Yet, despite the seemingly clear legal benefits of an international tribunal, some Western States have embraced the hybrid route. Their rationale for doing so is far from clear, though the German foreign minister worries about the critique that “[w]e only care about this war because it is in Europe” and van Schaack alludes to similar concerns from the U.S. perspective when she suggests that a hybrid “will provide the clearest path to establishing a new Tribunal and maximizing our chances of achieving meaningful accountability.” While it is unclear how “hybridity” mitigates the tribunal’s European focus or enhances its legitimacy, some suggest a “hybrid” tribunal simply avoids a contentious vote in the U.N. General Assembly (others retort that an unstated reason behind Western support for hybridity is that such a tribunal has less precedential value and decreases the likelihood that tribunals will be created for aggression by Western States).
At any rate, the crux of this dispute is to what extent a “hybrid” (based on Ukrainian law) or, conversely, “international” (endorsed by the U.N.) tribunal can be considered “legitimate enough” to overcome selectivity critiques. In this regard, law professor Kai Ambos warns that a General Assembly resolution “passed by only a weak majority would prove a heavy mortgage on the legitimacy of a [aggression tribunal]” and “that the tribunal will not be able to concentrate fully on its actual task – investigating, prosecuting and trying the Russian war of aggression.” Equally contentious is the number of States that would have to endorse such a resolution to constitute the voice of the international community, with some arguing for a higher two-thirds threshold while others see a simple majority of approximately 90, or as few as 60, as sufficient. The better view is that Ukraine should invoke its anti-imperial and post-colonial credentials to marshal cross-regional support and that a simple majority of States drawn from different continents should suffice; for instance, the contentious advisory opinion on the decolonization of Chagos was triggered by a simple majority vote (94 in favor) in the General Assembly, yet the International Court of Justice’s opinion is widely seen as authoritative and may eventually convince the U.K. to negotiate (though the British government rejected both the advisory request and, initially, the opinion itself).
In addition to realpolitik concerns and suspicions of Western double-dealing (as Estonia observes, worries about insufficient votes have the negotiation process at the General Assembly backwards; see also Lithuania), it is worth pausing on traditional arguments for hybridity and how they relate to the Ukrainian case and post-colonialism in Eastern Europe. In other contexts, hybrid tribunals were created to overcome the shortcomings of international ad hoc tribunals, while merging the benefits of the domestic and international sphere. As Judge Antonio Cassese observed in 2006 in relation to the Special Court for Sierra Leone, it “was designed to improve on” the tribunals for the former Yugoslavia and Rwanda, which were “marred by four essential flaws”: their “costly nature,” the “excessive length” of proceedings, their “remoteness from the territory where crimes had been committed,” and “the unfocussed character of the prosecutorial targets resulting in trials of a number of low-ranking accused.”
One complication in Ukraine is that Russian aggression – a classical inter-State war, where transitional justice has never been used before – does not lend itself to the traditional arguments for hybrid courts, which have all operated in intra-State wars, for atrocity crimes, and against the backdrop of State collapse. Not only are domestic prosecutions of aggression contested in international law (as Van Schaack acknowledges), the core argument in favor of “hybridity” – capacity-building – has little purchase for trials of aggression, where the symbolic dimension of international criminal law outweighs any longer-term “shadow effects” on the domestic rule of law. Given the small number of aggression trials, it is doubtful that the training given to Ukrainian experts on aggression can be re-used elsewhere in the future. Similarly, while hybrids are supposed to blend the best of two worlds, and overcome the shortcomings of purely domestic or international trials, a hybrid tribunal for aggression based on Ukrainian criminal jurisdiction suffers from the same major weakness that a domestic Ukrainian court does – it cannot overcome immunity, which raises the unavoidable question: what (positive) difference does hybridity actually make?
Perhaps most importantly, a necessary condition for any hybrid tribunal, its appropriation by the national government, seems entirely missing in Ukraine. While some foreign organizations, scholars, and governments have pushed for a hybrid court, left unaddressed in their analysis is the fact that Ukraine seems opposed to the idea. As a result, the “hybrid court” for Ukraine is a contradiction in terms. By definition, hybrid tribunals cannot be imposed upon a sovereign State, with some Western commentary and policy-making uncomfortably close to west(s)plaining by ignoring Ukrainian agency and insisting on imposing institutional arrangements on an Eastern European State against its will.
Given Zelenskyy’s opposition to “hybrid” solutions, it might be worth considering for a moment why Ukraine opposes a hybrid court. Although neither the Ukrainian government nor civil society have advanced an official rationale for an international tribunal, statements point to its greater legitimacy, efficiency, overcoming the immunities of Russia’s leadership, preventing future cases of (Russian) aggression, and parallels with Nuremberg as plausible rationales. Perhaps the weightiest argument against a hybrid tribunal is the concern that Ukraine would be seen as a judge in its own case, though – viewed from a global perspective – a similar problem arises with respect to a (nominally) international tribunal that does not have cross-regional buy-in.
Another argument worth considering is how Eastern Europe’s post-colonial status and “semi-peripheral” position in the global order informs Ukrainian ambivalence about hybridity. Drawing on Czech writer Milan Kundera’s idea of Central Europe as a liminal space between Western and Eastern Europe, and Müller’s conceptualization of the “(Global) East” as experiencing a “dual exclusion,” wherein it “serves as the Other against which Western Europe has long narrated its own civilisation and progress,” Ukraine’s policy choices – in response to Russia’s invasion generally, not just in the international legal sphere – can be understood as conveying a latent desire to be recognized, belatedly, as an equal member of Europe and the international community. In so doing, Ukraine harnesses the legitimacy of international law to separate itself from the legacy of Russian empire and Russian approaches to international law. In this regard, Ukraine’s position on aggression trials is different from African or Asian States who view hybrid courts as a means of asserting local agency and object to excessive foreign involvement; by contrast, Ukraine’s embrace of international law, including its push for an international tribunal – endorsed by the international community through the U.N. General Assembly – would be seen as overcoming Ukraine’s “semi-peripheral” status and its recognition as a full member of the global order. As China’s recent denial of post-Soviet States’ sovereignty demonstrates, these are anything but unsubstantiated concerns in this part of the world. It was no other than Lennart Meri, a former Estonian statesman, who argued that “international law is the nuclear weapon of small states.” It is this belief in international law’s promise that best explains Ukraine’s embrace of an “international” over a “hybrid” tribunal, while also differentiating arguments for an “international” aggression tribunal from the rationales behind hybrid courts in other regions, especially for cases of intra-State violence (for a longer discussion on this point, see my article).
Few deny that an aggression tribunal is an imperfect solution borne of necessity. Ideally, the ICC Prosecutor would already be able to investigate the crime of aggression in Ukraine. Alas, the past cannot be undone, and it is only the future that can be changed. A post-colonial analysis of the proposed tribunal sheds additional light on the rationales for aggression trials and master narratives that have come to structure the debate, but its most important take-away may be the negative precedent that would result from an absence of accountability in this instance.
In the face of centuries of Russian imperialism in Eurasia, the world faces an unusual and yet – history would suggest – fleeting moment of opportunity to give victims of modern empire a shot at a modicum of accountability. For all the talk of double standards in the global order, State officials and populations from different regions, legal traditions, and especially from smaller and weaker countries in the world must answer a few burning questions: do they believe that victims of a future great power invasion will be better served by the absence of accountability for aggression in Ukraine? Is inaction in this case a bulwark against colonial expansionism in the future? What kind of tribunal sends a stronger message about the world’s condemnation of imperialism and a deterrent for the future? Does inaction make the concurrent push to amend the Kampala jurisdictional regime more likely to succeed? As the world looks on, the answers to these difficult questions lie with diplomats and public opinion in the West, the Global South, and the Global East.