Options for Prosecuting Russian Aggression Against Ukraine:A Critical Analysis

Abstract

In the wake of Russia’s unprovoked invasion of Ukraine, there is broad consensus – at least in the Global North – that Russian leaders must be prosecuted for the crime of aggression. That consensus, however, does not extend to how Russian aggression should be prosecuted. Some commentators argue that the International Criminal Court (ICC) is the most appropriate forum, even if enlivening the Court’s jurisdiction requires amending the Rome Statute. Others call either for an ad hoc international tribunal similar to the ICTY and ICTR or for a hybrid tribunal based in the Ukrainian judicial system and supported by the Council of Europe. And still others advocate for national prosecutions conducted by Ukraine itself or by third states that have universal jurisdiction over aggression.

This article provides a critical assessment of the various options for prosecuting Russian leaders for their role in the invasion of Ukraine. The article is divided into three sections. Section 1 explains why Russia’s invasion of Ukraine violates the prohibition of the use of force in Art. 2(4) of the UN Charter and amounts to a criminal act of aggression under either customary international law or the Rome Statute. It also briefly addresses whether Belarus’s support for Russia’s invasion was itself a criminal act. Section 2, the heart of the article, assesses three potential international options for prosecuting the individuals responsible for Russian aggression, paying particular attention to issues of immunity and selectivity. Finally, Section 3 examines proposals for domestic prosecutions in Ukraine or elsewhere.