The European Union will try to set up a specialized court, backed by the United Nations, to investigate and prosecute possible war crimes committed by Russia in Ukraine, European Commission President Ursula von der Leyen said on Wednesday.
“We are ready to start working with the international community to get the broadest international support possible for this specialized court,” von der Leyen said.
Ukraine has been pushing for the creation of a special tribunal to prosecute Russian military and political leaders it holds responsible for starting the war.
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The Hague-based International Criminal Court (ICC) launched its own investigation into alleged crimes against humanity and war crimes days after Moscow’s February 24 invasion, but it does not have jurisdiction to prosecute aggression in Ukraine.
“While continuing to support the International Criminal Court, we are proposing to set up a specialized court, backed by the United Nations, to investigate and prosecute Russia’s crime of aggression,” von der Leyen said.
According to EU officials, the support of the United Nations for the specialized court is “essential” to help resolve the issue of immunity from prosecution for high state functionaries such as a head of state.
While customary international law awards so-called functional immunity to top state officials for many alleged wrongdoings there is a consensus that this immunity cannot apply to prosecutions before international courts.
Legal experts supporting the special tribunal point out that the crime of aggression is a leadership crime and would only target top state officials.
EU officials said this issue “is precisely the reason why it is so essential to have international backing and to have the involvement of the UN in order to be able to overcome the principle of immunity.”
Russia, which calls its actions in Ukraine a “special military operation,” has denied targeting civilians and other war crimes.
The G7 agreed on Tuesday to set up a network to coordinate investigations into war crimes as part of a push to prosecute suspected atrocities in Ukraine.
An act of aggression is defined by the United Nations as the “invasion or attack by the armed forces of a state of the territory of another state, or any military occupation...”
Despite the crime’s recognition under international law there is currently no specific court or tribunal to which Ukraine can turn.
There are several forms the special tribunal could take but legal experts say the most likely is a so-called hybrid tribunal, operating under Ukrainian law with support from the international community.
Such courts are typically staffed by international prosecutors and judges or a mix of local and international staff.
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