German Minister of Foreign Affairs Annalena Baerbock, called this past Monday for an international tribunal. The tribunal would aim to investigate and prosecute Russian officials for war crimes and the crime of aggression in the ongoing Russo-Ukrainian war.
However, the International Criminal Court (ICC) is not currently able to intervene. This not only concerns the Ukranian government, but also other European governments as well. The ICC is prosecuting other countries in what they call on their official website a “global fight to end impunity.” They say that the Court aims to hold perpetrators accountable for their crimes, with the hope that this crime will not happen again. But the hands of the ICC are tied, as it can only intervene in cases where the plaintiff and the defendant are members of the court, or a case is referred by the U.N. Security Council. As explained by Alexander Ratz in reuters.com, Russia is not one of the members of the ICC. Ratz explained further that “as one of the five world powers who are veto-wielding permanent members of the Security Council, [Russia] would probably block any referral to the ICC.” That is why not just Germany, but also other members of the European Union are calling for the creation of a special court to judge any crimes of aggression by Russia in Ukraine. Baerbock explains that such a tribune could derive its jurisdiction from Ukrainian criminal law, while being supplemented with international elements. The tribunal would take place “at a location outside Ukraine, with financial support from partners and with international prosecutors and judges, so that impartiality and legitimacy are guaranteed,” Baerbock said in the speech.
The problem is that this response would be difficult to proceed with if initiated at all. Although there has been a positive response to the idea from Ukraine, the European Union, and the Netherlands, not everyone is in agreement. The notion of holding an international tribunal has been shared but no preparations have begun. Although believing that these Russian war crimes should be punished, the outcome of this tribune is feared by international leaders. According to apnews.com, Karim Khan, the ICC chief, pushed back against the plan to start this special tribunal. Khan has warned of the potential for legal fragmentation and said his court was best placed for trials involving crimes of aggression.
According to jurist.org, Baerbock in her speech referred to the Amendments to the Rome Statute of the ICC, known as the “Kampala Amendments.” In these Amendments, crimes that can be prosecuted include crimes of genocide, aggression in a conflict, war crimes, and crimes against humanity. However, the Amendments that give the ICC the ability to seek justice, are the same that limit their actions and have stopped them from persecuting Russia. The UN Security Council would have to launch the investigation because, as mentioned before, the ICC can’t do so in crimes involving aggression in the war on its own accord. As explained in jurist.org, since Russia is a permanent member of the UN Security Council, it can veto an ICC referral therefore making it impossible to persecute the nation. In other words, the idea of an international tribunal has not been able to proceed due to these restrictive laws.
Russia still denies that any crimes have been committed. It is uncertain if any sanction or punishment that the tribunal would produce would have any impact on the Russian Government. Ellen Ioanes from Vox.com explains that ICC has further limits. The ICC is not like the European Court of Human Rights or other international courts since it can only try individuals. It is unable to try nation-states, which theoretically includes sitting heads of state. Another important detail to know is that ICC can issue arrest warrants but as they don’t have an enforcement mechanism, the ICC has to rely on national authorities to execute such warrants.
Holding Russia accountable is the right thing to do, but the few efforts to do so thus far have been unsuccessful and theoretically difficult. It appears that the theories are the problem, and the ICC and other authorities should change them and put something new into practice. Other nations have publicly stated that they want justice for Ukraine. This could be the way to attain it. The ICC was supposed to be in place to check impunity and fight for justice but is unable to do so because of its structure. A new identity could form, modelled after the ICC, the European Court of Human Rights, and other international courts. It would take time, but this may be another way to rectify the loophole in the law that is supposed to seek justice. Other nations, such as those that seek peace, justice, and equal opportunity; should be involved and make resources available. With other nations participating and intervening, impartiality and legitimacy can be guaranteed. As sanctions seem to have little effect in Russia, and more violent tactics like an attack can only bring destruction, torment, and suffering to all parties involved; there needs to be a mechanic that can provide a place for dialogue and action. A new structure could do its due diligence investigation. Evidence can be displayed to a jury that will be impartial, and true justice can be delivered. The structure plans a special tribunal to take place outside of Europe, so no countries that are directly involved can interfere with the process. At the same time, if a place outside of Europe is established it could encourage other Nations to take more action. There are other countries already interested in aiding. If the systems that already exist don’t help with the process then new ones should either come into place, or at least the loopholes in the laws be ratified. Everyone may speak different languages, have different customs, and even have a different way of thinking, but I hope that we all share a want for peace and justice. With or without a special tribunal, something is meant to happen so that violence can cease.
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