The EU on Wednesday proposed a “specialised court” backed by the UN to prosecute Russia’s “crime of aggression,” in one of the most concrete steps so far.
The plan will get round the fact that the International Criminal Court (ICC) can investigate war crimes in Ukraine, but cannot try the “leadership” crime of aggression in Russia’s case.
Yet, serious questions remain about a special court’s feasibility and legitimacy – let alone about whether the Kremlin or Russian military leaders will ever end up on trial.
“On both legal and practical levels, there are considerable obstacles,” Cecily Rose, assistant professor of public international law at Leiden University, told AFP.
‘Political will’
The first hurdles involve setting up such a tribunal, which will require global support to prosecute a war fought in Europe.
“Whether those can be overcome depends on the political will of those involved. They are not insurmountable, but it will take effort,” said Oona Hathaway, international law professor at Yale University.
Support was growing globally for Ukraine, as seen when 143 states voted in the UN General Assembly (Unga) in October to condemn Russia’s annexation of parts of Ukraine, she said.
The Unga will likely be the only avenue to back the court proposed by the EU, since Russia will use its permanent seat to veto any UN Security Council involvement.
However, support could be limited for a tribunal that only involved European states or a regional organisation like the EU “as it sends the wrong message about the crime of aggression,” said Hathaway.
‘Regime change’
The next problem will involve arresting suspects when the crime of aggression is limited to top political leaders.
Russia has said any Ukraine tribunal will lack legitimacy.
Rose said such a court would “have trouble securing custody over accused persons who are current or former high-level leaders, such as Putin.”
“Unless there is a regime change in Russia, Putin and other very high-level leaders will have to leave Russia in order be subject to arrest in another state.”
Immunity for Putin?
Putin and top-level officials will likely be immune from prosecution, at least while they are in office and maybe later too.
“If they were to leave Russia, other states would arguably be obliged to respect the immunity of these individuals,” said Rose, although the issue remained “highly debated.”
Although the UN Security Council has previously ordered states to cooperate with arrest warrants, such as in the ICC case against former Sudanese leader Omar al-Bashir, Moscow will again veto such a move.
“There could very well be a court with no accused persons in custody,” Rose told AFP.
Trying them in absentia would be possible – but creates a “whole range of problems.”
Money pit?
Funding would be an issue too, as it has been for many international courts.
“There will be significant costs involved in setting up such a court,” said Victoria Kerr, an associate fellow at the Hague-based Asser Institute for European law.
The Netherlands has already volunteered to host a Russia tribunal.
However, there is a cautionary financial tale in another Dutch-based court, the Special Tribunal for Lebanon.
Set up in 2009 to prosecute those responsible for killing Lebanese former premier Rafic Hariri in 2005, it cost up to US$1 billion and convicted just three people, none of whom ever appeared in court.
Undermining the ICC?
Creating a special court for aggression has raised concerns that the Hague-based ICC could be undermined.
The ICC is probing war crimes and crimes against humanity in Ukraine even though Russia is not a member, as Kyiv has accepted its jurisdiction.
A special rule says the ICC does not have jurisdiction over aggression in the case of non-members.
“The importance of any future convictions for these crimes (war crimes and crimes against humanity) should not be undervalued or overshadowed by the emphasis on the crime of aggression,” said Rose.