Espreso. Global

ICC blocks Ukraine’s request to have senior Russian officials tried - media

7 February, 2024 Wednesday

Ukraine's efforts for an international tribunal to prosecute Russian leadership for the crime of aggression face obstacles due to ICC's turf war

The Guardian reported this.

The ICC prosecutor, Karim Khan, and a few unidentified judges are to blame for the impasse, according to Philippe Sands KC, a prominent proponent of an international tribunal. The ICC is an international body located in The Hague that brings cases against individuals for crimes against humanity, war crimes, genocide, and aggression. He claimed their opposition to a special international tribunal was motivated by a self-serving turf war rather than principle.

Many Ukrainian ministers were present at Sands' conference last week in London, when she expressed her regret that the ICC, both its prosecutor and certain judges, seem to be the organization most opposed to this proposal. For them, turf matters more than principles in this situation. The notion that defending your institution, or turf, means fueling your opposition is abhorrent to me in a fight raging across European soil that has stretched on for two years and is obviously capable of developing into something much larger. It is an appalling state of affairs.

The question of whether it is politically possible to convince the UN to establish a special ad hoc international tribunal, independent of the ICC, to try the senior Russian leadership for the crime of aggression, or to leave the job to a less powerful court in Ukraine, has been the subject of a standoff for the past year.

The delays have angered Ukrainians, who have called on the UK to take the initiative.

“It is widely accepted that although the ICC can charge individuals for war crimes, it does not have jurisdiction over Russian crimes of aggression, since Russia is not a party to the Rome statute, the ICCs’s founding treaty. The ICC is instead seeking to charge President Vladimir Putin over the abduction of children from Ukraine,” The Guardian writes.

According to Sands, certain G7 nations—the US, UK, and France—were wary of an international tribunal because they thought it may create a precedent that might force other world leaders to face charges from other courts in the future. 

There is currently no diplomatic agreement on the court's model, despite 40 nations having joined the Ukraine core group that advocated taking action against the crime of aggression.

Sands said: “For this deadlock to continue, basically, is to assist only one side, and that is the Russian side. It reveals the west is divided and unable to act even on this issue.”

He exhorted everyone to work toward building a bridge between an international tribunal and a solely Ukrainian one, contending that a special tribunal might strengthen and amplify the ICC's function rather than diminish it.

“The nightmare scenario would be that in three, four years’ time a raft of junior people have been charged, but the people at the top table get off scot-free. The thing about the crime of aggression is that it is direct and goes to the top table.” Sands noted that although work had been done on an international tribunal, it had not been done in Ukraine or as a component of the national legal system.

“Fears remain that the UN general assembly, or security council, may not vote to establish the tribunal, reducing its international legitimacy. Russia, for instance, could veto any tribunal if the security council were asked to establish such a body,” the publication notes.

The head of the EU's legal department for international relations, Frank Hoffmeister, however, urged a dose of realism in regards to the alternate plan of trying to establish the court by a UN general assembly vote.

He emphasized that despite the fact that 140 states at the general assembly voted to denounce Russia's invasion as an act of aggression, support fell short of 100 when nations were requested to establish a registry of the harm Russia had inflicted on Ukraine.

He said “I do not know how many votes you would get if you said: ‘Let us punish Putin’. If there is not enough support, the whole exercise is dead and it is a recipe for failure.”

Another option is for the Council of Europe to create the organization through a multilateral treaty, but that would confirm the global south's absence from international justice that is dominated by the West.

At a meeting hosted by Justice and Accountability for Ukraine, an independent NGO that collaborates with the Ukrainian president's office, Sands gave a speech at which Ukrainian leaders demanded that Britain halt its year-long delay and support an international tribunal rather than a hybrid one.

Global politics, according to deputy head of the President's Office Andrii Smyrnov, is holding international law captive. According to him, the Russian leadership would likely claim immunity, which would make a wholly Ukrainian model impossible to defeat. With its extensive worldwide reach and longstanding leadership in human rights matters, he contended, the UK can be a key player in generating support for an international tribunal.

The head of the Ukraine Foreign Ministry's department of international law, Oksana Zolotaryova, stated: “What the people of Ukraine need is justice for what has happened throughout these 10 years. Every day we have a huge number of losses, civilian and military, and the people say they want those responsible put on trial. They don’t care so much about money. They want to see [that] the people like Putin who did it will first of all be in jail. They cannot wait for 30 years more for Putin and for the political and military leadership of the Russian federation to be found guilty of the crime of aggression. Yes, we can charge Putin in the district court of Mykolayiv, but the war that Putin launched was not just against Ukraine, the war was against the international order. The response should not just be Ukrainian but in the name of the international community.”

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