At the United Nations in New York, a draft resolution is circulating for a Nuremberg tribunal that would hold the Russian leadership accountable for crimes of aggression in Ukraine.
There are signs that US opposition to the proposal may be fading amid lobbying by Ukrainian President Volodymyr Zelenskyy.
Beth Van Schaack, the US Ambassador for Global Criminal Justice, said this week: “This is something that is close to the heart of President Zelenskiy. That’s something Ukraine wants and I think that will carry a lot of weight. The question is, will they have the votes at the General Assembly?”
She added: “All of them so far [general assembly] Resolutions on Ukraine have prevailed. The numbers were pretty strong.”
The International Criminal Court has already begun investigating war crimes in Ukraine, but Ukraine’s leadership argues that the ICC is handicapped by its ability to try those accused of individual war crimes, but the Kremlin leadership cannot prosecute for the broader crime of aggression, since Russia is not a signatory to the relevant statute.
Van Schaack, speaking in London at an event hosted by Advocates for Justice in Libya, said the US had not taken a firm position on a special tribunal. However, she thought it wise to hold trials in the absence of Russians accused of war crimes if it was not possible to extradite them.
She said it’s possible the US could release intelligence to help uncover those most responsible for preparing and waging a war she said clearly violated the UN Charter .
Her comments suggest that a key figure in the Biden administration is now more open to establishing a special tribunal focused on the Russian leadership’s role in directing the invasion of Ukraine. “We look at all aspects and certainly support some intermediate steps, especially when it comes to preserving evidence,” she said.
Van Schaack said two options were being considered. The first is a bilateral treaty between Ukraine and the United Nations, “blessed in some respects by the General Assembly, bringing the political support of the entire international community and establishing an autonomous tribunal.”
The second option, she said, is a domestic court set up by Ukraine, with the EU or Council of Europe adding an international element, possibly backed by a vote in the UN General Assembly.
In both cases, the vision would be to attempt the crime of aggression. “It would be a limited number of defendants, probably top political leadership and maybe some high-level military actors as well,” she said.
In a breakthrough for Ukraine’s diplomatic lobbying, European Commission President Ursula von der Leyen supported a specialized court for the first time last week. The tribunal already has strong French, Baltic and Dutch support, but the position of the US and UK has been less clear.
Opponents of the plan fear the move would divisive diplomatically, reduce the ICC’s status or disrupt its work and act as a deterrent to the current Russian leadership reaching a peace deal. There is also concern that international law allows heads of state and foreign ministers to claim functional immunity from prosecution in domestic courts.
Ukraine’s First Lady Olena Zelenska presented the case for a special tribunal to British MPs last Wednesday, urging Britain to recognize that the tribunal would complement the work of the ICC. But on the same day, UK Attorney General Victoria Prentis failed to mention the UK’s role in assisting Ukrainian prosecutors, the crime of aggression. A meeting of G7 justice ministers was silent on the issue.
The special tribunal was first proposed by British QC Philippe Sands and won the support of former British Prime Minister Gordon Brown. Sands argues that “the only ones really responsible are the leaders and the crime of aggression is the only way to get to the top. The crime of crimes is the crime of aggression.” He felt that the great powers had moved on this issue in recent weeks.
On November 14, the General Assembly voted 94 to 14, with 73 abstentions, to support the principle of reparations being paid by Russia and approved the establishment of a claims register in The Hague, staffed by UN prosecutors, to assess state and individual claims for compensation capture.
Van Schaack said there is an opportunity to try Russian war crimes cases “in absentia,” and said Ukraine’s court system allows it.
“There is nothing fundamentally wrong with absentee procedures, as long as they meet the standards of due process. Are they satisfying for the survivors? Are they satisfactory for observers of the judiciary? Probably not. But they provide a forum for victims to testify,” she said.
“They provide an opportunity to gather evidence to create a historical record and then when those individuals are arrested they are entitled to a retrial which can then start a trial that is really controversial. So I see the merit in starting cases even when you’re not sure you’ll get custody of a defendant.”
Ukraine wants the new tribunal to start operating no later than September 2023, as it believes it will have amassed at least 26,000 war crimes by then that resulted in the deaths of 7,500 civilians, including 400 children.