The crux of international efforts to identify a legal mechanism capable of extracting justice for the thousands of deaths in Vladimir Putin’s Ukraine war is that it must have the capacity to try the Russian leader himself. A year on, the shape of such a court is finally emerging.
The International Criminal Court (ICC), set up in 2002 to try individuals indicted for international crimes from genocide to crimes against humanity and war crimes, is the appropriate setting for such a settling of accounts. But in this conflict as in many others before – most notably Syria – the ICC is institutionally hamstrung by its structural links to the United Nations Security Council.
Why? Because while the legal consensus is that Putin must be tried for the crime of aggression – regarded as “the supreme international crime” from which others, even genocide, flow – that can only happen at the ICC in two scenarios, neither of which applies in the case of Ukraine.
Firstly, the ICC can only exercise what jurisdiction it has in relation to the crime of aggression if that aggression is committed by a state that’s a party to the Rome Statute, which established the court. Russia has not ratified the statute.
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The only alternative is the second scenario where the alleged crime of aggression is referred to the ICC by the Security Council – and that is never going to happen while Russia retains its veto as one of the five permanent members.
That capacity of the Security Council to undermine the ICC’s authority is a structural shortcoming that has damaged the court’s credibility times beyond number. It will never change while the other four “P5″ members – the US , China, France and Britain – guard their own vetoes equally jealously.
However, just as the Allies met in London in 1941 to draft a declaration on war crimes that led to the creation of an International Military Tribunal and the post-war Nuremberg trials, so a consensus has been emerging among EU states that “a special court” – not the ICC – is essential.
It was at Nuremburg that the crime of aggression was prosecuted for the first time. It was considered “a leadership crime” unique to those “who devise state policies” – a description that might have been written to describe the misdeeds of the autocratic Russian president.
International consultations led to the presentation of legal options by the European Commission at the end of November, which concluded that ”as things stand, the crime of aggression, which is a crime committed by the highest political and military leadership, cannot be prosecuted by the ICC”.
This was followed by a comparative examination of criminal tribunals and an analysis commissioned by the human rights subcommittee of the European Parliament, entitled Tribunal for the Crime of Aggression Against Ukraine: A Legal Assessment, circulated in December.
Then, at a meeting in February between EU Commission president Ursula von der Leyen and Ukrainian president, Volodmyr Zelenskiy, the first institutional flesh began to appear on the bones of a new legal mechanism with Putin firmly in its crosshairs.
An International Centre for the Prosecution of the Crime of Aggression in Ukraine would be set up in The Hague, von de Leyen revealed. “Russia”, she said, “must pay for its horrific crimes, including for its aggression against a sovereign state.”
The new centre would be “embedded” in a joint investigation team whose work is already under way and would “co-ordinate the collection of evidence”. It would be supported by Eurojust, the EU agency for criminal justice co-operation.
Politically, the special tribunal that now seems destined to emerge will have three powerful elements to its architecture designed to pre-empt any issues that might arise were the job to be done by the ICC – thus bringing even the most reticent doubters on board.
It will have the capacity to prosecute Vladimir Putin personally for aggression, slapping down his expansionist instincts. It will satisfy both international law and Ukrainian domestic law by drawing on both. And it will be a loud and clear EU response to a direct appeal from Zelenskiy and the Ukrainian parliament in time of war.
In that sense, it will be as unique a legal response as the Nuremburg trials were in their day.