Zelensky wants a court with “full jurisdiction” to try this “crime of aggression,” which he described as “the beginning of evil,” and “to correct the gaps that unfortunately exist in the law.” But forming such a court can be difficult.
On Thursday from The Hague, Ukrainian President Volodymyr Zelensky reiterated his call for the establishment of a special international tribunal to look into the “crime of aggression”. How can Russian President Vladimir Putin be prosecuted for invading Ukraine?
Why this call?
In March, the International Criminal Court issued an arrest warrant for the Russian president for the war crime of “unlawful deportation” of Ukrainian children in connection with the conflict.
But the court, which was established in 2002 to try the worst atrocities committed in the world, cannot prosecute the leaders of a country for aggression, if it is not a signatory to the Rome Convention, which does not apply to Russia.
“Impunity is the key to aggression,” Zelensky said, adding that “there must be a responsibility” as well to deter future perpetrators.
The “crime of aggression” is similar to the concept of “crime against peace” that was used in the Nuremberg and Tokyo trials at the end of World War II.
For the International Criminal Court, it is a charge amounting to recognizing “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.”
What does Zelensky want?
Zelensky wants a court with “full jurisdiction” to try this “crime of aggression,” which he described as “the beginning of evil,” and “to correct the gaps that unfortunately exist in the law.” But forming such a court can be difficult.
Overwhelming support in the United Nations General Assembly could be a possible way to get to such a court, but Moscow would take advantage of its permanent seat on the UN Security Council to veto any council resolution that supports it.
Also, support could be limited to a court that includes only European countries or a regional organization such as the European Union, experts say.
Stephen Rapp, the former US envoy for war crimes cases, said, “The most important thing to achieve this is for countries outside Europe to recognize that they have an interest in preserving the sovereignty and territorial integrity of all countries.”
“And to set a precedent that can be used later in the event of a similar attack against another country,” he told reporters in The Hague in February.
Are there other options?
Worried about the idea that a special court might “fail” its investigation in Ukraine, ICC prosecutor Karim Khan has suggested that member states find ways to allow the court to prosecute a non-member state for the crime of aggression.
Priya Pillay, the international lawyer, said that the International Criminal Court could be prosecuted for crimes of aggression “if its basic status is modified.”
But it is “unlikely” that this will happen retroactively, she told reporters in February. Raab added that by the time a possible amendment to the text is reached, the war “will have been over for a long time.”
Several of Ukraine’s allies, including the United States, have announced their support for the creation of a hybrid court to try Russian aggression, with international funding and staff but “rooted in the Ukrainian judicial system”.
Will Putin be arrested one day?
But Ukraine “will not accept either a hybrid peace or a hybrid court,” the Ukrainian president said.
If Zelensky had expressed his conviction that Putin was a “master” in The Hague, experts warned that the arrest of senior Russian officials would be a major challenge.
“If there is no regime change in Russia,” it is unlikely that Putin will be prosecuted, Cecile Rose, an expert in public international law, told AFP.
However, history witnessed the arrival of several high-ranking personalities to the dock, contrary to all expectations.
Raab recalled that “the same question was asked for Yugoslavia when the charges were brought against (Slobodan) Milosevic” when talking about the former Serbian president who died of a heart attack in 2006 in the detention center of the Criminal Tribunal for the Former Yugoslavia.