A draft resolution is circulated in The United Nations in New York for a Nuremberg-style tribunal to hold Russia’s leadership accountable for crimes of aggression in Ukraine amid signs that US opposition to the proposal may be softening in the face of lobbying by Ukrainian President Volodymyr Zelensky.
Beth Van Schaak, the US ambassador for global criminal justice, said this week: “This is something that President Zelensky cares deeply about. This is something Ukraine wants and I think that will carry a lot of weight. The question is, will they have the votes of the general assembly?’
She added: “Everyone so far [general assembly] the resolutions on Ukraine prevailed. The numbers are pretty strong.”
The International Criminal Court has already begun investigating war crimes in Ukraine, but Ukraine’s leadership says the ICC is hampered because, while it can try those accused of individual war crimes, it cannot prosecute the Kremlin leadership for the broader crime of aggression because Russia is not a party to the relevant statute.
Van Schaack, speaking in London at the Lawyers for Justice in Libya event, said the US had not taken a firm position on a special tribunal. However, she believes there is merit in holding trials in absentia of Russians accused of war crimes if they cannot be extradited.
She said it was possible the US would declassify the intelligence to help uncover those most responsible for preparing and waging a war that she said clearly violated the UN charter.
Her remarks indicated that key figures in the Biden administration are now more open to creating a special tribunal focused on the role of Russian leadership in directing the invasion of Ukraine. “We’re looking at all angles and certainly support taking some interim steps, especially when it comes to preserving evidence,” she said.
Van Schaak said two options are being considered. The first is a bilateral treaty between Ukraine and the UN, “blessed in some respects by the General Assembly, carrying the political support of the entire international community and establishing an independent tribunal.”
The second option, she said, is a national court established by Ukraine with the EU or the Council of Europe adding an international element, possibly approved by a vote in the UN General Assembly.
In both cases, the vision would be to prosecute the crime of aggression. “It will be a limited number of defendants, probably the top political leadership and maybe also some senior military actors,” she said.
In a breakthrough for Ukrainian diplomatic lobbying, European Commission President Ursula von der Leyen last week backed a specialized tribunal for the first time. The tribunal already has strong French, Baltic and Dutch languages supportsbut the position of the US and the UK is not so clear.
Opponents of the plan fear the move would lead to diplomatic rifts, reduce the status of the ICC or impede its work, and act as a deterrent to a peace agreement by the current Russian leadership. There is also concern that under international law heads of state and foreign ministers can claim functional immunity from prosecution in national courts.
Ukraine’s first lady, Olena Zelenska, last Wednesday presented the case for a special tribunal to British parliamentarians, urging Britain to recognize that the tribunal would complement the work of the ICC. But on the same day, UK Attorney General Victoria Prentice, outlining Britain’s role in assisting Ukrainian prosecutors, made no mention of the crime of aggression. A meeting of G-7 justice ministers remained silent on the matter.
The Special Tribunal was first proposed by the British KC Philip Sands, winning the support of former British Prime Minister Gordon Brown. Sands argues that “the only people who are really in charge 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 he sensed that in recent weeks the big powers were stirring on the issue.
On 14 November, the general assembly voted 94 to 14 with 73 abstentions in favor of Russia paying reparations and agreed to establish a claims registry in The Hague, staffed by UN prosecutors, to collect state and individual claims for reparations.
Van Schaak said there was a possibility of hearing Russian war crimes cases “in absentia,” saying Ukraine’s judicial system allows for it.
“There is nothing intrinsically wrong with absentee proceedings as long as they meet the standards of due process. Do they satisfy the survivors? Are they satisfactory to the observers of justice? Probably not. But they provide a forum for victims to testify,” she said.
“They provide an opportunity to gather evidence to create a historical record, and then if those individuals end up in custody, they have a right to a retrial, which can then start a process that’s really adversarial.” So I can see the benefit of filing cases even though you are not sure you will get custody of a defendant.
Ukraine wants the new tribunal to begin work no later than September 2023, as by then it believes it will have collected at least 26,000 war crimes that have resulted in the deaths of 7,500 civilians, including 400 children.
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