The EU wants a court to probe Russian war crime claims. Will it work?

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By Giulia Carbonaro
A neighbour comforts Natalia Vlasenko, whose husband, Pavlo Vlasenko, and grandson, Dmytro Chaplyhin, called Dima, were killed by Russian forces in Bucha.
A neighbour comforts Natalia Vlasenko, whose husband, Pavlo Vlasenko, and grandson, Dmytro Chaplyhin, called Dima, were killed by Russian forces in Bucha.   -  Copyright  AP Photo/Vadim Ghirda

The special UN-backed tribunal proposed by the European Union on Wednesday will show Ukraine that Russia is held accountable for violating its sovereignty and bringing the war to its territory, military analyst and lawyer Frank Ledwidge told Euronews.

"It's important, and I know Ukrainians think it's very important [to create such a tribunal]. The central issue here at the moment is that Ukrainians are seeing no accountability for Putin's invasion of their country," he said.

While the International Criminal Court (ICC) launched an investigation into alleged war crimes and violations of human rights in Ukraine since the early days of the conflict, the court is unable to prosecute the Russian leadership for the full-scale invasion of Ukraine -- which is considered a crime of aggression under international law.

Under UN statutes, aggression is defined as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations."

The ICC is unable to prosecute this crime as Moscow is not among the signatories to the court's treaty. A decision by the UN Security Council could allow the ICC to prosecute Russia on the crime of aggression, but Moscow is likely to veto such a move.

What could a special tribunal achieve?

The creation of a specialised tribunal like the one suggested by European Commission President Ursula von der Leyen on Wednesday would be a way around these challenges, allowing the court to hold the Russian leadership -- Vladimir Putin, Sergei Lavrov, and the army's top generals -- responsible for invading Ukraine. 

"We need to take an initiative. We need to create the tribunal. We need to do something in order to send the message, to convey the message that the crime of aggression will not be tolerated," said Maria Varaki, lecturer in International Law at the War Studies Department at King's College London.

But that doesn't mean that the creation of such a tribunal would be an easy process.

"The problem with these international courts or tribunals of any kind, be they the ICC or ad hoc tribunals --which I suspect the EU one will be -- is that they take an awfully long time to produce any kind of results," Ledwidge told Euronews.

"The quickest really was the trial against Milošević, when he was indicted by the Yugoslav tribunal for genocide very shortly after the Kosovo war. So they can work quickly if they can get the evidence. And I can't see any reason why the EU tribunal, if it manages to actually be up and running -- which might take a while --, shouldn't issue an indictment relatively soon, within the next few months, just as we did for genocide in Yugoslavia tribunal after those crimes were committed."

On 24 May 1999, as the war in Kosovo was still raging on, Slobodan Milošević, at the time the former President of the Federal Republic of Yugoslavia, was charged by the International Criminal Tribunal for the former Yugoslavia (ICTY) with war crimes in connection with the Bosnian War, the Croatian War of Independence, and the Kosovo War. 

Milošević was the first sitting head of state to be charged with war crimes by an international tribunal, and the tribunal was the first to react to massive war crimes in real-time. 

The war crimes trials lasted for four years until the politician's death in 2006. He was facing 66 counts of crimes against humanity, genocide, and war crimes committed in the 1990s -- and he had pleaded not guilty to all charges.

Ledwidge is certain that "the evidence [of Russia's crime of aggression] is there," but he's concerned about the fact that the court won't be able to gather evidence in Russia, but only in Ukraine. 

"The main difficulty is that they're not likely to indict the perpetrators. They will be tried in absentia, needless to say, even if an indictment is issued," he said. "But I think it's important for Ukraine that there is at least some form of accountability for the crime of aggression. I think it's a very important move."

On the other hand, Ledwidge expects Russia to challenge the legitimacy of the court and try to limit its operations. 

"The idea is that something has to happen because this aggressive war is a game changer," Varaki said. 

"This aggressive war from Russia should not remain unpunished. On the other hand, the modalities of addressing these violations of international law are more complicated things."

The creation of the special tribunal is "very tricky," said Varaki, but even if it was formed the question would be "how do you get the people indicted over? None of these tribunals has their own army, they cannot go to Russia and arrest people. That happened in former Yugoslavia, but that happened because there was a regime change."

Unless "something cataclysmic" happens in Russia, said Varaki, bringing Putin to justice would be "a difficult goal to be achieved now."

If the EU's initiative receives the necessary support from the United Nations, it would be the first time since the post-WW2 trials of Nuremberg that a special court would explicitly address the crime of aggression.