As kyiv and the West dream of a court capable of putting Vladimir Putin in the dock for invading Ukraine, experts warn that such a court would face serious challenges. The EU proposed last week to work towards the creation of a UN-backed “special tribunal” to prosecute Russian crimes of aggression, one of the most concrete steps to date towards setting up of such jurisdiction.
This would circumvent the fact that the International Criminal Court (ICC) only has jurisdiction over war crimes and crimes against humanity committed in Ukraine and not Russian crimes of aggression. Serious questions remain, however, about the feasibility and legitimacy of such a court, and whether it would end up trying the Kremlin or senior military officials.
Global Support Requested
The very establishment of the tribunal would require the mobilization of global support to prosecute a war waged in Europe, a primary source of challenges. “They are not insurmountable, but will take effort,” said Oona Hathaway, professor of international law at Yale University. This will depend “on the political will of those involved”, she added.
There is growing support for Ukraine on a global scale, she points out: 143 states voted in mid-October at the UN General Assembly (UNGA) to condemn the illegal annexations of territories Ukrainians by Russia. The Assembly appears to be the only avenue for UN support for the jurisdiction, since Moscow would use its permanent seat to veto any support from the UN Security Council. But support could be limited for a tribunal that only involves European states or a regional organization like the EU “because it sends the wrong message about the crime of aggression”, Oona Hathaway said.
Delicate arrests
A major challenge would be the arrest of suspects, with the crime of aggression being limited to Russia’s top officials. Moscow claimed in response to the EU appeal that it would not recognize the tribunal, and that it would have “no legitimacy”.
“Unless there is regime change in Russia, Putin and other top officials should leave Russia to be arrested in another state and transferred [au tribunal] said Cecily Rose, assistant professor of public international law at the Dutch University of Leiden. Vladimir Putin and senior officials would likely be safe from arrest and prosecution, at least while in office and perhaps even after.
Immunity and the Veto
“If they were to leave Russia, other states would no doubt be obliged to respect the immunity of these people,” said Cecily Rose, stressing that the question is the subject of intense debate. The hurdle could be circumvented if the UN Security Council ordered all states to cooperate, as was the case in the ICC case against former Sudanese leader Omar al-Bashir.
But here too it would come up against Moscow’s veto. “There could very well be a court without any defendants in custody”, even if it would be possible to try individuals in absentia, according to Cecily Rose.
Crime against humanity and crime of aggression
The ICC investigates suspected war crimes and crimes against humanity in Ukraine, as Kyiv has accepted its jurisdiction, but it does not have jurisdiction over crimes of aggression committed by countries that have not ratified the Statute of Rome establishing the court, like Russia. The establishment of a special tribunal would make it possible to circumvent this obstacle, but gives rise to another fear.
“The significance of any future convictions for these crimes [crimes de guerre et crimes contre l’humanité] should not be understated or overshadowed by its focus on the crime of aggression,” said Cecily Rose.