EU seeks special court to try Russia’s war crimes in Ukraine

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The European Commission unveiled plans on Wednesday (30 November) for setting up a specialised court, backed by the United Nations, to investigate and prosecute possible war crimes committed by Russia in Ukraine.

“Russia’s invasion of Ukraine has brought death, devastation and unspeakable suffering,” European Commission President Ursula von der Leyen said in a statement. “Russia must pay for its horrific crimes, including for its crime of aggression against a sovereign state.”

“While continuing to support the International Criminal Court, we are proposing to set up a specialised court, backed by the United Nations, to investigate and prosecute Russia’s crime of aggression,” she added.

Ukraine has long been pushing for the creation of a special tribunal to prosecute Russian military and political leaders it holds responsible for starting the war, in addition to the International Criminal Court (ICC).

The Hague-based ICC launched its own investigation into alleged crimes against humanity and war crimes only days after Moscow’s invasion started in February, but it does not have jurisdiction to prosecute aggression in Ukraine as Russia is not a signatory to the court’s treaty.

Therefore, that tribunal will only be able to judge specific cases of war crimes and crimes against humanity perpetrated in Ukraine.

Russian President Vladimir Putin, as well as his prime and foreign ministers, however, would still enjoy immunity from prosecution while in office.

At the same time, the only legal way the ICC can be called in to try Russia’s war is through a decision by the UN Security Council, which is rather unlikely as Russia, which has a permanent seat on the body, would undoubtedly veto any such attempt.

EU proposal

A proposal text circulated by the European Commission noted that 14 EU member states had already opened separate investigations into acts carried out in Ukraine “based either on personal or universal jurisdiction”.

The text said that, when it came to crimes of aggression, “an alternative investigation mechanism could be considered” where EU member states’ interests or citizens were affected.

European Commission officials said the path of the proposed special tribunal would run alongside the ICC, which “the EU will continue to give its full support to”, but would require UN support.

However, Commission’s initiative is set to face significant legal and political obstacles.

While the actual set-up of such a court remains unclear, there are several forms a special aggression tribunal could take.

Legal experts say the most likely would be a so-called hybrid tribunal, operating under Ukrainian law with support from the international community, according to an EU official.

“In both cases, whether it’s the ad hoc or the hybrid tribunal, UN backing will be essential,” the official added.

Such courts are typically staffed by international prosecutors and judges or a mix of local and international staff.

This would require the proposal to be submitted to the UN Security Council – where Russia’s veto is certain – and then to the wider UN General Assembly of all members, where it stands a chance of passing.

EU officials confirmed there had been initial contact with Washington on the issue but did not give any indication whether it would back the initiative. The United States, like Russia, is not a party to the ICC.

The Netherlands, which hosts the ICC in The Hague, has indicated its willingness to establish the new court on its territory.

Meanwhile, the G7 group of developed nations agreed on Tuesday (29 November) to set up a network to coordinate investigations into war crimes as part of a push to prosecute suspected atrocities in Ukraine.