FThe Russian Federation has announced the launch of the initiative; experts are sure that it is impossible to hold it in the UN Security Council. The head of the European Commission proposed to create a tribunal for Russia’s crimes in Ukraine under the auspices of the UN. The experts interviewed by RBC are sure that to make a decision throughThe UN Security Council will not work, the idea can be implemented by a group of countries
What the European Commission proposed
The French Foreign Ministry announced the beginning of joint work with Brussels and Kiev on the creation of a special tribunal “to investigate crimes committed by Russia in Ukraine during aggression” (Special Tribunal on Russia’s Crime of Aggression against Ukraine). Paris supports the Ukrainian justice system and the International Criminal Court, whose jurisdiction includes the relevant investigations, in order to bring the perpetrators to justice, the French diplomatic department said in a statement.
It also mentions that the head of the European Commission, Ursula von der Leyen, speaking on November 30 with the idea of creating a specialized court under the auspices of the UN, said that the EU intends to enlist the broadest international support for this initiative.
The Euractiv portal, with reference to the text of the European Commission’s proposal, reports that 14 EU states have already launched their own investigations “based on personal or universal jurisdiction”. The document also states that the option of creating an alternative investigative mechanism may be considered if the interests of citizens of EU member states have been affected. The portal, with reference to representatives of the European Commission, notes that the EC initiative will develop in parallel with the actions of the International Criminal Court.
The official representative of the UN Secretary-General, Stephane Dujarric, commenting on the proposal, said that “any decision on the establishment of such a tribunal with or without the participation of the UN remains with the member states.”
The press secretary of the Russian president Dmitry Peskov, commenting on the idea of a tribunal, said that it would not be legitimate and would be condemned by the Russian side.
How is the investigation of the International Criminal Court moving
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On March 2, the International Criminal Court (ICC) launched an investigation into war crimes and crimes against humanity in Ukraine in connection with the fighting that began on February 24.
The ICC was established in accordance with the Rome Statute in 1998, Russia signed but did not ratify this document. The Court can only consider specific cases of war crimes and crimes against humanity committed on the territory of Ukraine. At the same time, Russian officials are immune from prosecution as long as they remain in their posts. The ICC investigation received the support of 38 States, the ICC Prosecutor Karim Khan announced in May that a mission to Ukraine, which included 42 investigators, had been sent.
During the entire existence of the UN, two international criminal tribunals were established under its auspices: in 1993 for violations of international humanitarian law in Yugoslavia and in 1994 for the genocide in Rwanda. The first was closed in 2017, the second in 2015. There is also a so-called international residual mechanism, where some cases were transferred after the closure of the Tribunals. The creation of these structures required a sanctionThe UN Security Council. Russia is its permanent member and has the right of veto. Russia’s permanent Representative to international organizations in Geneva, Gennady Gatilov, told RIA Novosti that a new tribunal will not be created: The creation of any mechanism, and even more so an international tribunal under the auspices of the UN requires sanctions from the UN Security Council. It should be understood that the council’s decision on this issue is unlikely to be taken.
Can the initiative be implemented
According to the Director General of the Russian Council for International Affairs (RIAC) Andrei Kortunov, the EU could create a tribunal of the European Union or a coalition of individual countries, but for Russia its legitimacy would be questionable. If the issue of the creation of the tribunal is raised in the UN Security Council, it will veto it; if it is submitted to the UN General Assembly, then perhaps the decision on the creation of the tribunal will beaccepted, but will not have legal force, explained Kortunov. “We can try to make a decision within the OSCE, but it will have to be adopted by consensus. In any case, it will be the decision of a separate group of countries, and Moscow will consider this decision optional for itself. In addition, Russia will raise the issue of war crimes that could have been committed by the other side of the conflict,” the expert predicts.
He also recalled that it is impossible to deprive Russia of the right of veto in the UN Security Council on any one issue, it is necessary to change the entire procedure for using the right of veto. “To do this, it will be necessary to use Article 109 of the UN Charter and hold a general conference of the member states of the organization, revise the charter, that isin fact, to create an organization anew. To do this, it is necessary to enlist the support of at least two-thirds of all members of the organization. This is a serious procedure that will be objected to not only by Russia, but also by many others, since it is possible to disassemble the clock to the screw, but then it is usually not possible to assemble them,” he concluded.
“The form of the [proposed tribunal] is likely to be as follows: a group of states, on their own initiative, unilaterally bypassing the UN, will create a tool that will work on collecting invoices, which a group of these initiators will consider as evidence of Russia’s actions in Ukraine,” the program director explained to RBC The Russian Council for International Affairs Ivan Timofeev.
The Russian side will consider such a mechanism illegitimate, and other countries will be divided into three camps, the expert continued. First there will be countries that impose sanctions on Russia and support Ukraine in one way or another. They will be about 50, mostly Western. In the second camp there will be States that will refrain from any participation and support of the mechanism, they will be the majority; in the third camp there will be a small group of countries that will openly condemn the mechanism being created.
“The question is who will be in the third group. If China is in it, it will seriously undermine the legitimacy of the initiative and attempts to globalize it. Even if this does not happen, the very fact that there is no global consensus on this issue will reduce the political legitimacy of this instrument to a greater extent. II think that from an international legal point of view, the initiative has no serious grounds. This is a political tool,” concluded Timofeev.
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