The Ukrainian government has in recent days redoubled its calls for a special tribunal whose main mission would be to try crimes committed with Russia, an ambitious task for which Kiev is seeking the help of its main international allies, in the absence of defining where and how the hypothetical trials could be carried out.
The Ukrainian Constitution establishes in its article 125, explicitly, that «the establishment of extraordinary and special courts is not allowed», a legacy of the post-Soviet context in which an à la carte Justice as in the USSR was feared.
However, the Ukrainian president, Volodimir Zelenski, does not hesitate to demand a «special court» to judge «all those responsible for this criminal war», as he emphasized this very week during a speech to the nation in which he appealed to the collaboration of other European countries.
Experts do not see this demand as incompatible with the Ukrainian legislation, as long as the concept of ‘international’ is added to the court claimed by Zelenski, in such a way that, even if it could be constituted in Ukraine, it would be done with a framework outside the Ukrainian judicial system itself, the portal Just Security points out.
Zelenski has received the key backing of the president of the European Commission, Ursula Von der Leyen, who, in outlining a series of measures, proposed the creation of the aforementioned special court so that «Russia’s horrible crimes do not go unpunished» and Vladimir Putin’s regime «pays» for them.
In this context, Brussels proposes that, «while continuing to support the International Criminal Court», progress should be made towards the creation of a «specialized court» backed by the United Nations to «investigate and prosecute Russia’s crime of aggression».
It is precisely this crime of aggression that Zelenski also focuses on, aware that singling out Moscow for the start of the conflict itself is not possible under the umbrella of the ICC, a court with which he nevertheless wants to continue to collaborate.
The Rome Statute, which shaped the ICC, provides for aggression as a crime to be prosecuted, but its definition was not endorsed by all parties, which prevents it from exercising jurisdiction over it. It would only be possible if the country of origin of the alleged aggressor, in this case Russia, accepts the jurisdiction of the court.
The ICC Prosecutor’s Office has initiated its own investigation, for possible war crimes and crimes against humanity, and Kiev has actively promoted these inquiries. Not surprisingly, the Ukrainian government already decided to submit to the jurisdiction of the Hague-based court in 2014, when the conflict broke out in the east of the country and Russia absorbed the Crimean peninsula.
A hypothetical trial of Putin for crimes that do fall under the jurisdiction of the ICC seems distant, in any case, since it would depend on whether, in the event of being charged with war crimes or crimes against humanity and having an arrest warrant pending, he would travel to a country that does cooperate with The Hague where he could be arrested.
THE ROLE OF THE UN Community sources recognize that, for the claims put forward by Von der Leyen, the tribunal will need «the backing at political, financial and administrative level» of the United Nations, an organization which, on the other hand, has one hand tied behind its back by the right of veto enjoyed by Russia in the Security Council, the main executive body.
It would be possible to question the UN Secretary General, António Guterres, and to seek legitimacy in the General Assembly, where all member states are represented and no country has the right of veto. Ukraine has already won several diplomatic backing in the Assembly in the form of resolutions in recent months.
Guterres’ office, for now, prefers to stay on the sidelines. «Any decision to establish this tribunal, with or without the involvement of the United Nations, rests with the member states,» chief spokesman Stéphane Dujarric told a press conference this week.
The ICC also avoids entering into the debate and a spokesman consulted by Europa Press said only that the body «is focused on fulfilling its own mandate». However, he adds: «We welcome any effort that will bring more justice to the victims, wherever it may be.
The UN already has a precedent in the establishment of special tribunals, such as the one demanded by Sierra Leone in 2000, with a direct request to the Secretary General at the time, Kofi Annan, which resulted in a Security Council resolution calling for negotiations to set up this mechanism.
Three years earlier, Cambodia also asked the UN for help in trying the Khmer Rouge leaders. In this case, the collaboration resulted in the setting up of a Cambodian tribunal with foreign participation and international standards.
CONTACTS BEGIN The Ukrainian Executive has redoubled its round of international contacts in search of the tribunal it is demanding, with meetings in the main European countries and also in Washington. At the head of this group is Andriy Yermak, a key figure of the Presidency and of Zelenski’s utmost confidence.
The Minister of Foreign Affairs, Dimitro Kuleba, has also gone with the issue under his arm to the meetings of NATO and the Organization for Security and Cooperation in Europe (OSCE), of which Russia continues to be a member.
The French government, which has already declared itself in favor of the initiative and has confirmed the initiation of contacts with other partners, hopes to «obtain the broadest possible consensus within the international community» in the case of Ukraine, although it seems clear that positions have already been established.
The successive resolutions adopted within the UN have made it clear in recent months which allies Russia has, either through explicit support or through equidistance such as that adopted by China, another of the five countries with a veto right in the Security Council.
Moscow makes it clear that it will not abide by any tribunal created ‘ex profeso’ to review what it continues to define as a «special operation», which it does not fail to justify by virtue of alleged risks to national security. These efforts «will have no legitimacy, we will not accept them and we will condemn them,» Kremlin spokesman Dmitry Peskov declared on Thursday.
