This would circumvent the fact that the International Criminal Court (ICC) only has jurisdiction over war crimes and crimes against humanity committed in Ukraine and not Russian crimes of aggression.
Serious questions remain, however, about the feasibility and legitimacy of such a court, and whether it would end up trying the Kremlin or senior military officials.
‘Political will’
The very establishment of the tribunal would require the mobilization of global support to prosecute a war waged in Europe, a primary source of challenges.
“They are not insurmountable, but will take effort,” said Oona Hathaway, a professor of international law at Yale University. This will depend “on the political will of those involved”, she added.
There is growing support for Ukraine globally, she points out: 143 states voted in mid-October at the UN General Assembly (UNGA) to condemn the illegal annexations of territories Ukrainians by Russia.
The Assembly appears to be the only avenue for UN support for the jurisdiction, since Moscow would use its permanent seat to veto any support from the UN Security Council.
But support could be limited for a tribunal that only involves European states or a regional organization like the EU “because it sends the wrong message about the crime of aggression,” Hathaway said.
‘Regime change’
A major challenge would be the arrest of suspects, with the crime of aggression being limited to Russia’s top officials.
Moscow said in response to the EU appeal that it would not recognize the tribunal, and that it would have “no legitimacy”.
“Unless there is a regime change in Russia, Putin and other very high-level officials should leave Russia to be arrested in another state and transferred (to court),” he stressed. AFP Cecily Rose, assistant professor of public international law at the Dutch University of Leiden.
Immunity for Putin?
Vladimir Putin and senior officials would likely be safe from arrest and prosecution, at least while in office and perhaps even after.
“If they were to leave Russia, other states would no doubt be obliged to respect the immunity of these people,” Rose said, noting that the issue is hotly debated.
The hurdle could be circumvented if the UN Security Council ordered all states to cooperate, as was the case in the ICC case against former Sudanese leader Omar al-Bashir. But here too it would come up against Moscow’s veto.
“There could very well be a court without any defendants in custody”, even if it would be possible to try individuals in absentia, according to Ms. Rose.
Prejudicial to the ICC?
The ICC investigates suspected war crimes and crimes against humanity in Ukraine, as Kyiv has accepted its jurisdiction, but it does not have jurisdiction over crimes of aggression committed by countries that have not ratified the Statute of Rome establishing the court, like Russia.
The establishment of a special tribunal would make it possible to circumvent this obstacle, but gives rise to another fear.
“The significance of any future convictions for these crimes (war crimes and crimes against humanity) should not be understated or overshadowed by the focus on the crime of aggression,” Ms Rose said.