One year on from Russian President Vladimir Putin’s invasion of Ukraine and a special tribunal prosecuting war crimes has still not been set up, despite the European Commission and European Parliament agreeing on its need last year.
Since the war started, Kyiv has been pushing for the creation of some sort of a special court to prosecute the Russian military and the country’s political leaders.
As well as the EU, the United States has been one of the most vocal proponents of the idea as the conflict has played out.
But there’s one major roadblock – Russia – which would veto any resolution to that effect presented to the United Nations Security Council.
According to Vaios Koutroulis, Professor of Public International Law at ULB, the task may instead be given to the 193 member states of the UN General Assembly.
“The resolutions voted by the UN General Assembly are not binding. So, such a resolution would offer more legitimacy to the tribunal, that is certain – depending – of course, on the majority,” he told Euronews.
“The broader the majority, the more legitimacy the tribunal will have. But it still does not mean that Russia will have to cooperate, for example, with the tribunal. So, it is really more a political matter than a legal one.”
The European Commission announced last week that there will be a specific centre dedicated to collecting evidence on crimes of aggression from July onwards.
Koutroulis said there is no history of collecting proof like this though, so it may be difficult.
“There is no doubt that this [military] operation violates the United Nations charter and the difficulty here is that we don’t really have recent precedents of collecting evidence for the crime of aggression,” he told Euronews.
“It will be interesting to see how the centre handles this.”
The International Criminal Court (ICC) is already investigating allegations of war crimes and genocide in Ukraine.
Russia, however, does not recognise the authority of the ICC, which 123 countries are party to, including all 27 EU member states.
The US is also not part of the ICC, but it wants to help according to Beth Van Schaack, the American Ambassador-at-Large for Global Criminal Justice.
“The US is not a member of the Rome Statute, which created the ICC, but there are many ways in which we can, and have been, supportive of the work of the court. This includes a range of diplomatic support, of course,” Van Schaack told Euronews.
“We can also assist with the capture and transfer of suspects.”
When it comes to the creation of a special tribunal to prosecute Russia’s leadership for crimes of aggression, the US ambassador says that there are several options.
“Ukraine could also enter into a treaty with, for example, the Council of Europe, or even the European Union, potentially to create a more regional body,” she said.
“Ukraine could also create a tribunal internal to its own system, but then allow international prosecutors, judges and other experts to staff various positions. We have seen these hybrid models all around the world.”
Ukraine’s Prosecutor General, Andriy Kostin, says authorities have registered more than 65,000 war crimes since the invasion began a year ago, including executions and sexual violence.