A initial draft on the guidelines of a possible Nuremberg-style special tribunal to prosecute war crimes committed by Russian forces in Ukraine has begun to circulate through the corridors of United Nations while USA has been opening up to the possibility of facilitating the constitution of a court that, kyiv requests, should become operational by September of next year, at the latest, reported The Guardian.
The US Ambassador for International Criminal Justice, Beth Van Schaack, recalled days ago the good predisposition of the UN General Assembly when making decisions favorable to Ukraine. “So far, all the resolutions have prevailed in favor of Ukraine, and quite forcefully”he said during a conference in London.
The ambassador did not rule out the possibility that the US could reach declassify intelligence information to facilitate the action of this possible court, an alternative to the International Criminal Court (ICC), that it has already begun to investigate Russia, although it has no jurisdiction to try Russian President Vladimir Putin, because his country has not signed the statute by which it submits to the authority of the court.
In this context, the European Union proposed that, “while continuing to support the International Criminal Court”progress towards the creation of a United Nations-backed “specialized tribunal” to “investigate and prosecute Russia’s crime of aggression”.
It is precisely this crime, that of aggression, on which the Ukrainian president also focuses, Volodymir Zelensky, aware that pointing out to Moscow for the start of the conflict itself is not possible under the umbrella of the TPI, a court with which it does, however, want to continue collaborating.
The Rome Statute, that shaped the CFI, provides for aggression as a crime to be prosecuted, but its definition was not supported 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.
It is because of that now same there is two options on the table when constituting this new court: through a bilateral agreement between Ukraine and the UN — which enjoys “certain blessings” within the General Assembly, according to Van Schaak — or a local Ukrainian court backed by the European Union or the UN.
Opponents of the court argue that the creation of the court could block a possible peace negotiation between Russia and Ukraine, and that the Russian leaders could hide behind diplomatic immunity to avoid imputation. Russia, in any case, has already warned that it does not have the slightest intention of recognizing this court, which it has described as a “quasi-judicial mechanism” and partisan.
Van Schaack has stated that there is, however, the possibility of hearing cases “in absentia” of Russian war crimes, since the judicial system of Ukraine allows it. “There is nothing inherently wrong with absentee proceedings as long as they meet due process standards. Are they satisfying for the survivors? Are they satisfactory to observers of justice? Probably not. But they provide a forum for the victims to testify”, she has estimated.
The special court was first proposed by the British jurist Philippe Sandsgaining the endorsement of former British Prime Minister Gordon Brown. Sands argues that “the only real culprits are the leaders, and the crime of aggression is the only way to get to the top table.” The crime of crimes is the crime of aggression.” He said that he perceived that in recent weeks the main powers were moving on this issue.
On November 14, the General Assembly voted 94 in favor, 14 against, and 73 abstentions, to support the principle that Russia pay reparations, and agreed to establish a claims register in The Hague, staffed by the prosecutor’s office from the UN, to collect state and individual compensation claims.
Ukraine wants the new court to start operating no later than September 2023, as it believes it will have collected at least 26,000 war crimes that killed 7,500 civilians, including 400 children, by then.
(with information from EP)
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