1st Feb 2023

MEPs urge EU countries to back a special tribunal on Russia

  • EU justice commissioner Didier Reynders said Ukraine's prosecutor general has so far registered more than 60,000 reports related to crimes committed during the war in Ukraine (Photo: Rodrigo Abd)
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MEPs on Thursday (19 January) called on EU governments to back the creation of a special tribunal to prosecute war crimes committed by Russia in Ukraine.

The resolution, which is non-binding, was approved with 472 votes to 19 no and 33 abstentions, adding the parliament's political weight to efforts to create a special court to hold Russia, including its top leadership, accountable.

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The resolution called on EU countries "use all means at their disposal to increase cooperation with, and build coalitions within, the UN general assembly in order to work towards a majority that could support a possible UN initiative to set up a special tribunal".

Legal scholars recently told MEPs that without the backing of the UN general assembly, it would be legally challenging to set up a tribunal to prosecute Russian aggression against Ukraine.

The Hague-based International Criminal Court (ICC) has launched an investigation into war crimes in Ukraine.

However, it can't prosecute the crime of aggression, the act of invading another country, because Russia, like the US and China, is not a signatory to the treaty that created the court.

It also means that the ICC could not prosecute top Russian decision-makers and the top military leadership for attacking Ukraine.

The ICC can deal with cases referred to by the UN security council, but since Russia is a member of the council, it is unlikely that such a referral would happen.

ICC chief prosecutor Karim Khan has warned of legal fragmentation and argued that his court was best placed for trials involving crimes of aggression, and urged ICC member states to fix "gaps that are said to exist" in the court's jurisdiction.

The European Parliament said that it "considers that the establishment of the special tribunal would complement the investigative efforts of the ICC and its prosecutor, as it would focus on alleged genocide, war crimes and crimes against humanity committed in Ukraine."

"As regards accountability for the crime of aggression in particular, currently, Russian leaders cannot be held accountable before any international jurisdiction," justice commissioner Didier Reynders told MEPs on Tuesday.

"A possible tribunal set up to prosecute the crime of aggression would need to have a sufficiently international character to relinquish immunities in a legitimate way, and to act on behalf of the international community," he added.

Reynders said Ukraine's prosecutor general has so far registered more than 60,000 reports related to crimes committed during the war.

Since Russian president Vladimir Putin ordered the invasion of Ukraine last 24 February, Russian military forces have been accused of abuses including the killings in the Kyiv suburb of Bucha and deadly attacks on civilian facilities.

On Monday, Germany's foreign minister Annalena Baerbock also called for the establishment of a special international tribunal in the Hague to prosecute Russian leaders, as a supplement to the ICC where it is currently unable to act.

She said that such body could derive its jurisdiction from Ukrainian criminal law, and would be supplemented with international elements, such as a location outside of Ukraine, international prosecutors and judges, and international financial support.

Baerbock also urged for the ICC's founding treaty to be amended so the court could prosecute for the crime of aggression.

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